Cornell University Law Library THE GIFT OF Colonel Frank A. Barton Family I.tiiaca, New. .York DateA.ug.ua.t .19,,.....1958.,. CORNELL UNIVERSITY LIBRARY 3 1924 062 060 516 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924062060516 WORKS OF BRIG.-GEN. GEORGE B. DAVIS PUBLISHED BY JOHN WILEY & SONS. A Treatise on Military Law and the Constitution, Jurisdiction, and Procedure of Courts-Martial, 8vo, xiv + 754 pages, cloth, $7.00; sheep, $7.50. The Elements of Law. An Introduction to the Study of the Constitu- tional and Military Law of the United States. 8vo, vi + 188 pages, cloth, $2,50. A TREATISE ON THE MILITAET LAW OV THE UNITED STATES. TOGETHKK WITH THB PRACTICE AND PROCEDURE OF COURTS- MARTIAL AND OTHER MILITARY TRIBUNALS. Beigadiee-Genekal GEORGE B. D_AVIS, Judge-Advocate General, U. S. A., Formerly Professor of Law at the United States Military Academy, West Point, New York. BEOOND EDITION. REVISED. SECOND THOUSAND. NEW YOEK : JOHN WILEY & SONS. London : CHAPMAN & HALL, Limited. 1909. 'B/^a?/^ Copyright, 1898, BY GEORGE B. DAVIS. Sabert Smninuinlii anil QSomitang ' INTRODUCTION. The history of the constitutional military establishment of England, the country from which our own institutions are in great part derived, has hardly received the attention to which, by its interest and importance, it is fairly entitled. The gradual development of the common law and the study of that great body of maxims and fundamental principles which we call the English Oonstitutioa have beea made the subject of minute and painstalc- ing inquiry; the corresponding development of the military institutions of the kingdom, however, have been less carefully studied, and this notwith- standing the fact that the loug controversy between the sovereign and Parliament, extending over more than three quarters of a century, which culminated in the Great Kevolution of 1688, had to do not only with the discussion and settlement of disputed questions connected with the mainte- nance of the military establishment and the discipline of the military forces, but involved as well the relation of the military to the civil power, and the place of the former in the constitutional law of the kingdom. It may be safely asserted that for the two centuries immediately succeed- ing the Norman Conquest the place assigned to military law was in no sense inferior to that occupied by the common law. Indeed it was not until the feudal system had begun to decline in England that the latter began to predominate, and gradually to absorb the civil jurisdiction formerly exercised by the courts of the constable and marshal; and this absorption of jurisdiction was due less, perhaps, to the superior excellence of the common law than to the fact that the kingdom was at peace with the con- tinental states, and that there were but few occasions for the employment of military forces on foreign service or in foreign wars. The Hundred Years' War for dominion in France, in so far as it affected the interests of the English people, was a foreign war, carried on upon foreign territory, and as such gave rise to no conflict of jurisdiction between the civil and military tribunals, but rather afforded to each form of juris- prudence an opportunity for normal and appropriate development. This was especially true of military law. Articles or Ordinances of War were IV INTHODUGTION. prepared and applied iu the establishment and maintenance of discipline in the armies employed in France, especially during the reign of Henry V., whose war ordinances have been preserved, and enable ns to gain an insight into the disciplinary requirements of this early period. The epoch of civil wars, which occupied the greater part of the fourteenth and fifteenth centuries, gave occasion for the frequent exercise of martial law — a new and unwelcome form of government, as obnoxious to the civil institutions of the realm as it was detrimental to the development of military law, with which system it had nothing in common. In the extreme form in which it was exercised during the reign of the Stuarts and the period of the Protectorate it became so inextricably confused with military law proper, in the minds of Englishmen, as to contribute not a little to defer the recQgni- tion of the latter as a part of the constitutional system of England. Indeed, it was not until the close of the eighteenth century that public men came to understand the distinction between martial rule and military law, and to apply the terms correctly in the discussion of public affairs. The Tudor period has generally been regarded by historians as in the nature of a truce between the sovereign and Parliament. It was an era of religious rather than civil agitation; foreign wars, involving important military operations on land, were infrequent, and the policy of the Govern- ment, especially during the long reign of Elizabeth, was one of internal and economic development, and of neutrality or non-interference in foreign afEairs. The result was to defer the discussion of purely constitutional ques- tions, and to delay the final distribution of sovereign powers between the legislative and executive departments of the government for more than a century. During this epoch, however. Englishmen were not permitted to forget the existence of martial law; although the occasions for its exercise were less frequent than they had been during the disturbed reigns of the Houses of Lancaster and York, and were, perhaps, more nearly justified by the facts of existing emergencies than was the case during the first half of the period of Stuart rule. The questions which came up for discussion and settlement during the first half of the seventeenth century were many and important, and had to do with the power to maintain a military establishment, to determine its strength and composition, to provide for its support, and to .regulate its discipline. Of all of these questions the last is the one with which we are immediately concerned. The " Ordinances of War " of the early sovereigns had, in the lapse of time, given place to the modern Articles of War, based in great part upon the war ordinances of Grustavns Adolphus, the father p f mode rn milita ry discipline. The courts of the constable and the marshal, and the court ol chivalry had been replaced by the council of war of the Stuart period; and this tribunal had, in the early part of the seventeenth INTRODUOTION. V century^ gJTen place to the modern court-marti al. The powers of the con- , stable and marshal, which, as has been seen, had been derived from the sovereign, had reverted to their original source, and were now exercised directly by him, or by commanders-in-chief under authority regularly dele- gated by royal commission. Indeed the system of military jurisprudence had become so fully established that, upon the outbreak of the Parliamentary wars, the armies of the Commonwealth were governed by Articles of War similar in form and terms to those which were relied upon to regulate dis- cipline in the royal armies. Although the serious difEerences between the Crown and Parliament had been adjusted by the formal acceptance of the Declaration of Eights by William and Mary, an event of no less importance than a serious mutiny was necessary to remind Parliament that the legislative adoption of the Declara- tion of Eights was not in itself a complete settlement of the constitutional questions to which the reign of the Stuart sovereigns had given rise; but it was the manner in which the question was disposed of by Parliament that gives significance to its action as an epoch in the development of military law. The urgency of the occasion was great, for some regiments were m open mutiny, and others were known to be so seriously disaffected as to give ,cause for serious concern to the sovereign and his ministers. The emergency was met, most wisely as the event proved, by the enactment of the Mutiny Act. That instrument, after declaring that " the raising or keeping of a standing army within this kingdom in time of peace, unless it be with con- sent of Parliament, is against law," gives formal statutory recognition to the existing military establishment, as a force necessary " for the safety of the kingdom"; and then proceeds to adopt the system of military law then prevailing in the Army, including the agency of the court-martial, as a means ,of maintaining discipline in the forces so authorized. Such limitations as were deemed necessary to restrict the operation of the system to the existing establishment were clearly imposed ; the two most serious military ofEenses — mutiny and desertion — were expressly recognized and made criminal, and the power to try and punish them was conferred upon courts-martial, appointed by the Crown or by the Lord General, subject, however, to the condition that the sentences imposed by those tribunals were to be carried into effect only when they had been approved by the authority which created them. With a view to retain legislative control over the military establishment thus placed within the protection of the Constitution, the Act was limited in its operation to a period the duration of which was especially set forth in the statute, at the expiration of which the grant of power, unless formally renewed, was to cease and determine. It will thus be seen that the Mutiny Act was by no means the least important of a series of enact- ments having for their purpose to bring the existing military system within the operation of the English Constitution. It will also be borne in mind VI INTROBUOTION. that this purpose was accomplished -by the legislative recognition of an exist- ing system of military jurisprudence, as ancient in its origin as the common law. A little more than a century later, the Congress of the United States, acting deliberately and without the pressure of the emergency which fur- nished an occasion for the enactment of the Mutiny Act,, gave precisely similar recognition to a system of military law derived from the long-estab- lished system of the mother country, and adapted to our military needs during the progress of a long and eventful war. The legislative enactment which brought within the operation of the newly-adopted Constitution a system of discipline which was already in successful operation, was made possible by the terms of the fifth amendment to that instrument, which formally excepted " cases arising in the land and naval forces " from the operation of the several clauses which embodied the guarantees respecting the trials of persons accused of crime against the United States. The development of a constitutional military system in the United States is thus seen to have been beset by fewer difficulties than were encountered in the mother country, and this was due in part to the fact that the question was practically settled, from its constitutional side, by the adoption of the Bill of Eights and the enactment of the Mutiny Act, and inr part also by the express recognition of the requirements of military law in the fifth of the amendments to the Federal Constitution. \The experience of more than a century had demonstrated the wisdom of Parliament in its recognition of military law as a system of jurisprudence, not less necessary to the well-being of the state than the common law itself, and none the less so because it provided for standards of conduct among persons constituting the military establishment, differing materially from those regulating the rights and obligations of individual members of the body politic in their purely civil and criminal relations, / PREFATORY NOTE. The author takes pleasure in making this willing and grateful acknowl- edgment of the valuable assistance which has been afEorded him in the preparation of this work by Brigadier-General G. Norman Lieber, Judge- Advocate General of the United States Army ; so great indeed is the obliga- tion that the writer does not hesitate to say that whatever of merit the book may be found to have is due, in great measure, to the constant support and suggestive encouragement which have been extended to him, at every stage of the undertaking, by that able and accomplished officer. The especial thanks of the author are also due to Major Enoch H. Crowder of the Judge- Advocate General's Department and to First Lieutenant "Walter A. Bethel of the Third Artillery, for the efficient and helpful services rendered by them in the revision and criticism of the manuscript and the preparation and publication of the volume. LIST OF AUTHOEITIES CITED IN THE PREPARA- TION OF THIS WORK. Abbott, Austin. Trial Evidence. New York, 1885. Abbott, Benjamin Vaughan. United States Digest. 15 vols. Boston, 1878. Adams, John. Works, etc. 10 vols. Bos- ton, 1850. Adyb, Captain S. Payne, Royal Artillery. A Treatise on Courts-martial. 8th Ed. Loudon, 1810. American Archives. Fourth Series. 6 vols. Washington, 1839. Fifth Series. 3 vols. Washington, 1848. American Digest. Third Series, 1888-1896. 9 vols. St. Paul, 1888-1896. (See U. S. Digest.) American Reports. 35 vols. 1870-1881. Albany, 1870-1881. American State Papers. Military Afifairs. 2 vols. Washington, 1883. Naval Affairs. 3 vols. Washington, 1860. — - Miscellaneous. 3 vols. W?ishington, 1834. Amos, Sheldon. The Science , of Law. ' New York, 1875. Army Regulations, U. 8., 1895. Attorney-General of the tJnited States. Opinions, vols. 1-19. 1789-1890. Digest of Opinions, vols. 1-16. 1885. Bbnet, Stephen V., Captain of Ordnance, U. S. Army. A Treatise on Military Law and the Practice of Courts-mar- tial. New York, 1864. Bbntley, a. J. Digest oJE Opinions of the Attorney-General of the United States, vols. 1-16. 1 vol. Washing- ton, 1885. Best, W. M. The Law of Evidence. Ist Amer. Ed. Albany, 1875. Blackstone, Sir William. Commentaries on the Laws of England. 2 vols. Cooley's Amer. Ed. Chicago, 1884. Bland, Humphrey. A Treatise on Mili- tary Discipline. 5th Ed, Dublin, 1778. BiRKHiMBK, Captain William E., Third Regiment of Artillery, U. S. Army, Military Government and Martial Law. Washington, D. C, 1893. Bishop, Joel Prentiss,. LL.D. Com- mentary on the Law of Criminal Pro- cedure. 8th Ed. 3 vols. Chicago, 1893. Commentary on Criminal Law. 2d Ed. 3 vols. Boston, 1893. — — Commentaries on the Law of Statu- tory Crimes. 3d Ed. Boston, 1883. Bump, Orlando F. Notes of Constitutional Decisions. New York, 1878. Callan, John P. The Military Laws of the United States, 1789^1858. Balti-'. , more, 1858. ChukcHj William S. A Treatise on- the Writ of Habeas Corpus. 3d Ed. San ■ Francisco, 1893. Clodb, Charles M. Military and Martial Law. London, 1873. The Military Forces of the Crown. 3 vols. London, 1869. -; — Statutes relating to the War Office and the Army. London, 1880. ix LIST OF AUTHORITIES CITED. C0LVIL1.B, Lieut. -Col. O. F. Military Tribunals. London, 1883. CooLBY, Thomas M. Blackstone's Com- mentaries. 2 vols. Chicago, 1884. Constitutional Law. 1 vol. Boston, 1891. Constitutional Limitations. 1 vol. Boston, 1883. Court of Claims Reports (U. S.) 31 vols. Cox, Colonel George. The Practice and Procedure of Courts-martial. 1888. Cbabb, George. A History of English Law. London, 1829. CuKTis, Benjamin R. Jurisdiction of the United States Courts. 1 vol. Boston, 1880. D'Aguilar, Lieut. -Gen. Sir George. Ob- serviitions on Courts-martial. Dublin, 1861. Danforth, Henry G. Digest of U. S. Supreme Court Reports. 3 vols. 1789- 1891. Albany, 1891. Davis, Brig.-Qen. George B., Judge-Advo- cate General U. S. Army, formerly .Professor of Law, U. S. Military Acad- emy. The Military Laws of the United States. Washington, 1897. Elementary Law. New York, 1897. DeHart, Captain William C, Second Regiment of Artillery, U. S. Army. Observations on Military Law. New York, 1846. Desty, Robert. Constitution of the United States. 2d Ed. 1 vol. San Francisco, 1887. Digests : American, 1888-1896 ; Dan- forth's, 1891 ; Federal Reporter, 1880- 1897 (3 'vols.); Myer. 1884 ; Scott, 1873 ; U. S., First Series, 1878 ; U. S„ New Series, 1878-1888. Endlb, John. Observations on the Prac- tice and the Forms of District, Regi- mental, and Detachment Courts-mar- tial. Dublin, 1866. Endlich, G. a. Interpretation of Stat- utes. Jersey City, 1888. Federal Reporter, 1880-1897. 80 vols. St. Paul, Minn., 1880-1897. Digest. 3 vols. St. Paul, 1885-1894. FiNLASON, W. F. Commentaries upon Martial Law. London, 1867. Flanders, Henry. An Explanation of the Constitution of the United States. Philadelphia, 1885. Fdrsb, Captain A. D. , 2d W. I. Regiment. Tabular Precis of Military Law. Lon- don, 1896.' Franklyn, Henry Bowles. Outlines of Military Law. London, 1874. General Court-martial Orders, War De- partment, 1868-1894. General Orders, War Department, 1843- 1897. Gould and Tucker. Notes on the Re- vised Statutes of the United States. Boston, 1885. Gkebn, N. St. John. Criminal Law Re- ports. 2 vols. Boston, 1875. Grebnleaf, Simon, LL.D. A Treatise on the Law of Evidence. 3 vols. 15th Ed. Boston, 1892. Grose, Francis, P.R.S. Military An- tiquities. 3 vols. London, 1786. Hallbck, Heniy W. International Law. Sir Shepstoue Baker's Ed. 2 vols. London, 1878. Hamilton, Alexander. Works, etc. 7 vols. New York, 1857. Hare, J. I. C. American Constitutional Law. 3 vols. Boston, 1889. Harwood, a. A., U. S. Navy. The Law and Practice of Naval Courts-martial. New York, 1867. Heard, Franklin Piske. Tlie Principles of Criminal Pleading. Boston, 1879. Hetzel, a. R. Military Laws of the United States. Washington, 1846. Hogg, John W., Chief Clerk, Navy De- partment, U. S. A. A Compilation of Laws relating to the Navy, Marine Corps, etc. Washington, D. C, 1883. Holmes, Oliver W., Jr. The Common Law. Boston, 1881. Hough, Lieut.-Col. William, E. I. C. S. The Practice of Courts-martial and other Military Courts. Calcutta, 1834. Precedents in Military Law. London, 1855. Hughes, Captain R. M., 12th Regiment, Bombay Army, E. I. C. S. The Du- ties of Judge-Advocates. London, 1845. HuRD, Rollin C. The Writ of Habeas Corpus. Albany, 1858. LIST OF AUTH0BITIE8 CITED. XI Ites, Rollin A., Lieutenant Fifth Regi- ment of Artillery, U. S. Army. A Treatise on Military Law. New York, 1879. Jones, Captain Douglas, Koyal Artillery. Notes on Military Law. London, 1881. Judge Advocate General, United States Army. Digest of Opinions. 1 vol. 1895. Lauchbimer, Charles H., First Lieuten- ant, U. S. Marine Corps. Forms of Procedure (Naval Courts, Boards, etc.). Washington, 1896. Lawson, John D. The Law of Expert and Opinion Evidence. St. Louis, 1883. The Law of Presumptive Evidence. San Francisco, 1885. Lee, C. H. The Judge-Advocate's Vade Mecum. Richmond, 1863. Libber, Brigadier-Geueral G. Norman, Judge- Advocate General, U. S. Army. Remarks on the Army Regulations. Washington, 1897. Macomb, Major-General Alexander, U. S. Army. The Practice of Courts-mar- tial. ^ New York, 1841. Maltbt. Isaac. A Treatise on Courts- martial and Military Law. Boston, 1813. Manual of Military Law (English). 1894. Marshall, John. Writings on the Fed- eral Constitution. Washington, 1890. Mat, John Wilder. The Law of Crimes. Boston, 1881. McAethuk, John, LL.D. Principles and Practice of Naval and Military Courts- martial. 4th Ed. 3 vols. Loudon, 1813. Military Law : Adye, 1810 ; Benet, 1864; Bland, 1778 ; Clode, 1873 ; Colville, 1883; Cox, 1888; D'Aguilar, 1861; De Hart, 1846 ; Furse, 1896 ; Grose, 1786 ; Harwood, 1867 ; Hough, 1834, 1855 ; Ives, 1879 ; Jones, 1881 ; Lauch- eimer, 1896; Lee, 1863; McArtbur, 1813 ; Macomb, 1841 ; Morrison, 1897; Murray, 1895; O'Brien, 1846; Regan, 1877 ; Samuel, 1816 ; Simmons, 1875; Story,, 1886; TuUoch, 1887; Tytler, 1800;"Winthrop, 1897. Miller, Samuel F. Lectures on the Con- stitution of the United States. New York, 1891. MoRDECAi, Captain Alfred, U. S. Army. A Digest of the Laws relating to the Military Establishment of the United States. Wasbington, 1838. Morrison, Captain C. G., 5th Dragoon Guards. Notes on Military Law, etc. London, 1897. Murray, Captain Arthur, First Regiment of Artillery, U. S. Army. Manual for Courts- martial, 1895. Myhr, William G. Federal Decisions. 30 vols. St. Louis, 1884. Navy Regulations of the United States, 1896. O'Beibn. Lieut. John, United States Army. A Treatise on American Mili- tary Laws. Philadelphia, 1846. Opinions of the Attorney-General. 19 vols. 1789-1890. Ibid. Digest, vols. 1-16. 1 vol. Opinions of the Judge-Advocate General, U. S. Army. 1 vol. 1895. Ordronaux, John, LL.D. Constitu- tional Legislation in the United States. Philadelphia, 1891. Paschal, George W.,L.L.D. The Con- stitution of the United States. Wash- ington, D. C, 1876. Phillipps, S. March. A Treatise on the Law of Evidence. 3 vols. 5th Am. Ed. New York, 1868. Pomerot, J. Norton. An Introduction to the Constitutional Law of the United States. 1 vol. 7th Ed. Bos- ton, 1883. Rapaljb, Stewart. A Treatise on the Law of Witnesses. New York, 1887. Regan, Captain James, 9th Infantry, U. S. Army. The Judge- Advocate's and Recorder's Guide. Washington, 1877. Regulations, Uuiied States Array, 1895. United States Navy, 1896. Reports : U. S Supreme Court, 1789- 1897, 167 vols.; Federal Reporter, 1880-1897, 80 vols. ; Court of Claims, 31 vols. ; American, 35 vols. Revised Statutes of the U. S. Ed. 1878. Ibid. Supplement. Vol. 1. 1874-1891. Ibid. Supplement. Vol 3. 1891-1895. Roe, Edward T. Criminal Procedure of Xll LIST OF A UTH0RITIE8 CITED. the Onited States Courts. Chicago, 1887. Samuel, E. The Law Military. London. 1816. Scott, Lieut.-Col. Robert N. , Third Regi- ment of Artillery, U. S. Army. An Analytical Digest of the Military Laws of the United States, 1789-1873. Philadelphia, 1873. Simmons, Captain Thomas Frederick, Royal Artillery. The Constitution and Practice of Courts-martial. 7th Ed. London, 1875. Starkib, Thomas. A Practical Treatise oil the Law of Evidence. 10th Amer. Ed. Philadelphia, 1876. Statutes at Large of the United States, 1875-1897. Vols. 18-28. Stephen, Henry John. A Treatise on the Principles of Pleading in Civil Ac- tions. 5th Ed. London, 1843. Stephen, Sir James Fitzjames, K. C.S.I; D.C.L. Digest of the Criminal Law. London, 1877. Digest of the Laws of Evidence. 5th Ed. London, 1887. ■ A History of the Criminal Law of England. 3 vols, London, 1883. Stokt, Joseph. Commentaries on the Constitution. 5th Ed. 2 vols. Bos- ton, 1891. Story, Lieut.-Col. Philip. Summary of Military Law and Procedure. Lon- don, 1886. Supreme Court Reports, 1789-1897. 167 vols. Thayer, James Bradley. Cases on Con- stitutional Law. Parts 1, 2, and 3. 2 vols. Cambridge, 1894. Select Cases on Evidence. Cam- bridge, 1892. Ttjlloch, William. Elementary Lectures on Military Law. 2d Ed. London, 1887. Tytler, Alexander Eraser, Judge-Advo- cate, District of North Britain. An Essay on Military Law. Dublin, 1800. United States Digest. 15 vols. Boston, 1878. New Series, 1870-1888. 19 vols. Bos- ton, 1878-1888. Von HoiiST, H. The Constitutional Law of the United States of America. Chi- cago, 1887. Walton, Colonel Clifford, C.B., Assist- ant Adjutant-General. History of the British Army, 1660-1700. London, 1894. Waterman, Thomas W. A Digest of Decisions in Criminal Cases. New York, 1877. Washburn, Emory, LL.D. A Manual of Criminal Law. 2d Ed. Chicago, 1889. Washington, George. Writings. Ford's Ed. 14 vols. New York, 1889. Wharton, Francis, LL.D. A Treatise on Criminal Law. 9th Ed. 2 vols. Philadelphia, 1885. A Treatise on the Law of Evidence in Criminal Issues. 9th Ed. Phila- delphia, 1884. A Treatise on Criminal Pleading and Practice. 9th Ed. Philadelphia, 1889. State Trials of the United States. Philadelphia, 1849. Whiting, William. War Powers under the Constitution. 2d Ed. Boston, 1871. Winthrop, Colonel William, Asst. Judge- Advocate General, U. S. Army. An Abridgment of Military Laws. 3d Ed. 1897. Military Law. 2 vols. 2d Ed. Bos- ton, 1897. Digest of Opinions of the Judge-Ad- vocate General, U. S. Army. 4th Ed. Washington, 1895. TABLE OF CONTENTS. OHAPTSR PAQS I. Military Law : Its Authoeitt and Soitrcbs 1- II. Military Tkibunals : Courts-martial, their Origin AND Function.. 13 III. The Constitution op Courts-martial 17 IV. The Composition of Courts-martial 36 V. The Jurisdiction of Courts-martial 42 VI. Arrest and Confinement 61 VII. Charges and Specifications 69 VIII. The Incidents op the Trial 83 IX. Punishments 163 X. The Record 191 XI. The Reviewing Authority 199 ' XII. The Inferior Courts- martial 211 XIII. Courts of Inquiry : The Regimental Court for doing Justice 220 XIV. Military Boards 229 XV. Evidence 244 XVI. Martial Law: Military Government; Military Commissions 300 XVIL Habeas Corpus 314 XVIII. The Employment of Military Force 323 XIX. The Articles op War 337 Appendices , 566 ziii MILITARY LAW. CHAPTEE I. MILITARY LAW: ITS AUTHORITY AND SOURCES. Military Law. — The terpi Military Lav applies to and inclndes snch rales of action and condaot as "t" impo"^'^ ^Y a. Sta.tft-tupnn pprsjftns ^^ ^^'f military service, wii^h a. view to the establiabmeiLt-an fl ma,iat £iia.Dr^,{^ fttffjjj: tary discipline.' IT'is largely, but not exclusivehr, statutory in character, and prescribes the rights of, and imposes duties and obligations upon, the several classes of persons ' composing its military establishment; it creates military tribunals, endows them -with appropriatejurisdiction and regulates their procedure ; it also defines military offenses and, by the imposition of adequate penalties, endeavors to prevent their occurrence." Origin and History. — As the system of Military Law which has received constitutional recognition in the United States is in great part derived from ' O'Brien, 25, 36; De Hart, 3; Harwood, 7; Benet, 7; Ives, 9; Winfbrop, 1; Samuels, xi; Clode, Mil. Law, 35-75; Story, Summary of Mil. Law, 3-5; Adye, 35-43; Tytler, 9; Simmons, §§80-109; Man. Mil. Law, 7. "If a national army be established, it is indispensably requisite that order and discipline should be established and main- tained in that army. To effect this, it is necessary that the duties of the military be defined and their performance enforced, under appropriate penalties, by tribunals appointed for that purpose. For this reason, rules and articles of war are ever found to accompany an army. There is yet a stronger motive for their establishment, which, relates to the tranquillity and security of the State; for nothing could be more dangerous to the public peace and safety than a licentious and undisciplined military. Such a force would be merely an armed mob; and our own experience, as well as that of other nations, has given us sad but useful lessons in the mischief to be apprehended from such an assemblage. The aim of all military legislation should, therefore, be twofold: first, to render the army as efficient as possible against the public enemy; and secondly, to deprive it of all power of injuring the country which supports it." (O'Brien, Mil. Law, 35.) ' The term as here used relates, not to a mere body of statutes, but to a system of jurisprudence, some of the provisions of whi^h are common to the military policy of all civilized States, both ancient and modern. It differs from the Common Lavr in respect to its subject-matter, and as to the persons whose conduct it regulates. In the United States it forms a part of a more extensive body of laws, enacted by Congress under the authority conferred by several clauses of the Constitution, having for its object the creation, support, and admmistration of the constitutional military establishment. 2 MILITARY LAW. the rures of discipline which prevailed in the British Army at the outbreak of the American Eevolution, its origin and development can best be under- stood by a brief reference to the history of the military institutions of the country from which our own disciplinary system is the direct inheritance. Froin the Norman Conq[uest to the Accession of James I. — During the period intervening between the Norman Conquest and the establishment of representative institutions in England, the sovereign was regarded not only as the fountain of justice, but as the ultimate source of legal authority, and his edicts and ordinances had the obligatory force now assigned to the formal enactments of Parliament. During this period the king, by suitable - decr ees or proclamati ons, established^ such rules f orjbhe^ governmeftLal the military forces as seemed to him proper or necessary; ' and these rules were enforced by tribunals, presently to be described, called the Constables' and Marshals' Courts and the Court of Chivalry.' The Court of Chivalry, in the course of time, began to intru3e~u^on*uie jurisdiction of the common-law courts, and acts were passed from time to time restricting its authority until, during the reign of Henry VIII. , it finally ceased to exist ; its functions in' respect to questions of honor and pedigree having become practically obsolete, and its jurisdiction over military offenses having been transferred to the council of war, the predecessor of the modern court-martial. Although the control of the military establishment gave rise to occasional differences of opinion between the crown and Parliament during the reigns of the Tudor sovereigns, the questions in controversy were adjusted without serious difficulty, usually by the enactment of statutes calculated to apply an appropriate remedy to the particular wrong complained of; ° and it was not until the accession of the Stuart sovereigns that the controversy attained the importance of a constitutional question of serious national concern. Military Law subsequent to the Revolution of 1688 ; the Mutiny Act. — ■ In conformity to the agreement in accordance with which William and ' The system of governing troops on active service by Articles of War issued under the prerogative power of the crown, whether issued by the king himself or by the commanders-in-chief, or other officers holding commissions from the crown, continued from the time of the Conquest till long after the passing of annual Mutiny Acts, and did not actually cease till the prerogative power of issuing such articles was superseded, in 1803, by a corresponding statutory power (Man. Mil. Law, 7), In the Black Book of the Admiralty will be found examples of military laws composed by the King (Richard II ), with the advice and assistance of the Duke of Lancaster and others. Adye in his Treatise on Courts-Martial (page 5, note) mentions the publication of a pamphlet containing the Code of Military Laws for the government of the English Army, under Henry V., then engaired in war with France.* ' For an account of the jurisdiction of these courts see the chapter entitled Mii.itakt Tribunals. See. also, for a history of the Court of Chivalry, the English Manual of Military Law, p. 7. * Such was the attempt to define the jurisdiction of this court in 13 Rich. II., Ch. 2, and 1 Henry IV., Ch. 4; see, also, Salkeld's Reports, 533, and Blackstone's Commentaries, Book III., pp. 104, 105. * Grose in the fii*st edition of bis Military Antiquities Cl'^88) mentions the Ordinances of Kine John; the Charter of Richard I. for the government of those going by sea to the Holy Land; the Ordinances of Richard II., Henry V., and Henry VIH. ITS AUTHOBITT AND SOUBOES. 3 Mary ascended the throne in 1688, which, as embodied in the Bill of Eights, has since been regarded as an important part of the British Con- stitution, the right of command and the power to enforce and maintain discipline were vested in the sovereip-n, as the constitutional coTTiTnfl.prl PT- in-chief ; bat_thes e powers w ere to be regulated i n their exercise ) )y the t erms of an important s tatn t?canM ""tEe Mutiny Act,' the scope and purpose of which will presently Tie'explaln e'd. TtlTsuHicient 'to observe at this point that the Matiny Xct recognized mutiny and desertion as two of the most serious military offenses and authorized their trial and punishment by court- martial. All matters affecting discipline, however, which were not expressly provided for in the Mutiny Act were left to be regulated by the royal prerogative, and in conformity to such disciplinary rules as the sovereign might see fit to impose. Indeed, such a body of rules already existed in a code of regulations, known as the Articles of War, which had been issued ^ bv_James II. in 168fi.' These Articles, therefore, though frequently add'eil' " to and amended, or modified, by the issue of subsequent articles, continued in force, side by side with the Mutiny Act, and in subordination to that instrument, until 1879. when the Muti ny Act and Articles of War were merged in an enactment known as the Army UisciplTne Act , which, as ^C re-enacted in the Army Act of 1881, i s still in force throng hont the British Emp5e! In strictness, however, the Army Act of 1881 " has of itself, no force, but requires to be brought into operation annually by an- other Act of Parliament, thus securing the constitutional principle of the control of Parliament over the discipline requisite for the government of the Army.'" The Mutiny Act and the Articles of War. — It will thus be seen that from 1689, the date of the first Mutiny Act, until 1881, the date of the permanent Army Discipline Act, military discipline was regulated in England by two authoritative instruments: (1) t}^^, ,M.Utifly. Afiii».*...ghi!lb-J was statuto^_in character and contained the more important disciplinary/ ' 1 William and Marv, Chap. 5. 2 Clode, Mil. Law, 38. ' Man. Mil. Law, 18, 19. It is proper to observe in this connection that the Articles of 1686, which were in force at the date of the passage of the Mutiny Act, were not annulled or even replaced bv that enactment, but were rather recognized, by implication, as a supplementary body of rules for the government of the military forces, which -.vere applicable to all disciplinary questions not covered by the express terms of that statute. They therefore continued to exist side by side with that instrument, and were added to and amended by the crown from time to time, as the necessities of the service demanded until 1803. when tlip prerogative power of issuing such articles was replaced by a corre- sponding statutory power.* * For military offenses, created by statute, prior to the enactment of the Mutiny Act, see 18 Henry VL, by which desertion was made a felony: 7 Henry VII., Chap. 1, and 3 Henry VIII., Chap. 5, by which that offense was excludi^d from benefit of clergy. By 8 and 3 Edward VI., Chap. 2, desertion was again made a felony, without benefit of clergy, and a number of other military offenses were defined and made punishable. * 53 Geo, in., Ch. 17, Sec. 146. * MILITARY LAW. provisions, together with the power to appoint the several military tribunals; and (3) the Articles of War, issued by the sovereign, and' so non-statutory in character, contSining the great Dody"(5t~ruTes' f or the government and discipline of the military forces of the crown. The Articles of War were added to and amended from time to time, as occasion demanded, and were in force throughout the realm at the outbreak of the American Eevolution in 1775. As a consequence, the Mutiny Act and Articles of War were well known to the colonists in America, and when the royal troops served in conjunction with the colonial forces during the wars with the French and Indians, prior to the Eevolution, both species of military force were governed by their provisions. At the outbreak of hostilities in 1775, the Eevolutionary Congress found itself confronted with the necessity of raising and disciplining armies, and, for the reason above stated, turned to the British military code as a body of disciplinary rules with the scope and operation of which the troops of the several colonies were already familiar. With so i3aa_iaQd ification s, Jheref ore, the MutinyAct and the Articles_of War then in^force_in the British Army were adop ted by the Congress for the government of the^ Armies of Jh^-.IIaitgd. States.' Classification of Military Law. — The rules regulating the conduct of military persons in the performance of their duties, like those which control the conduct of the general body of citizens, are in part statutory and in part embodied in orders and regulations in conformity thereto; a considerable part, however, of the military law now in force in the United States Army is derived from usages, long adhered to in the military establishment, called customs of service, the nature of which will presently be explained. These laws are therefore susceptible of classification, according to their form, into written and unwritten laws. The written military law consists of : 1. The Enactments of Congress respecting the Military Establishment." — Of the several enactments falling under this head the most important are to be found in the body of statutory rules, enacted under authority conferred by several clauses of the Constitution, which are technically known as the Eules and Articles of War. = Although the Articles of War as revised or amended, from time to time, by the authority of Congress contain the greater part of the Military Law proper of the United States, many important statutory provisions respecting the discipline and administration ' The first set of Articlps of War was adopted by Congress by resolution of June 30 1775 a Journal of Cong , 90) ; tliesK Articles were repealed and replaced by tliose autliorized by the resolution of September 20, 1776 <1 iMd., 435-483). See the chapter entitled Tttw ASTICLES OP Wak. ' These enactments derive their authority from the several clauses of Section 8 Article I of the Constitution which vest in Congress the powSr (1) to declare war' grant letters of marque and reprisal, and make rules concerning captures on land or water; (2) to raise and support armies; and (3) to make rules for the government and regulation of the land and naval forces. ' For a history of the Articles of War see the chapter so entitled. ITS AUTHOBITT AND SOURCES. '5 of the Army are not embraced in the Articles, but are to^be found in the Revised Statu tes and in the biennial volumes of Statutes at Large ; the former containing a codification of the laws of the United States which were in force at the date of its enactment,' and the latter containing the statutes subsequently enacted." Distinction iettueen Military and Martial Laiu. — It is proper to observe, at this point, that the terms military law and martial law are by no means synonymous. Military Law, as has been seen, is in great part statutory in character and regulates the conduct of military persons at all times and in all places, without as well as within the territorial jurisdiction of the United States; that is, militaryJaw js applicable to c ertain persons, _riot^ only in time of peace, but in time of war as well, and its operation is not r e stricted to ' the territory of the United States, but follows its forceswherever_they^niay go in the performance of lawful miUtary~duty or in_the prosecution, of , a leg'itimat'e lind duly authorized military undgjtaking. The Naval Articles of~WaT?-for'8fample, do not cease to be binding upon the officers and men who constitute the crew of a vessel of war, when they pass from the territory of the United States into the high seas; indeed, by the comity of nations, those laws continue to be operative while such vessel is in the territorial waters of a foreign State. So, too, the Articles of War continue in force and have extra-territorial operation in a military command engaged in the pursuit of hostile Indians begun in the United States but continued in Mexican territory, under the authority conferred by a recent convention with that power. The military laws of the United States had the same binding force in the armies of Generals Scott and Taylor while operating in Mexico that they had in respect to those portions of the Army which remained within its territorial jurisdiction during that period. Militarji-iaw has, also, chiefiy to do with the a^te and jela^ons of miJita^^ applies to theconduct of citizens in an exceedingly limited number of cases, ineach of which "tEere.muaLbe_the. express~wthority of ad enactment of Martkl law, on the other hand, is not .statutory in character, and arises, in everjr case, out of strict military necessity. Its proclamation, or estab- lishment, is not expressly authorized by any of the provisions of tbe Consti- tution; i t comes int o being, asviil hereafter be seen, only in the territory of an enemy in time of war, or in a part of tlie territory of the United SHtesJn^wMoh^the^ro£er_^ciyil_autliority is, for some^^ntroTlihg reason, unable for the time to exercise its^ proper junctions. It disappears when such forcible resistance to the operation of the law has been overcome or ■ Act of June 20, 1874 (18 Stat, at Large, 113). ' The 18th and all subsequent volumes of the Statutes at Large contain provisions in relation to the military establishment which are of date subsequent to the enactment of the Revised Statutes. 6 ■ MILITARY LAW. has ceased to exist, and the civil authorities have been enabled to resume the exercise of their appropriate functions.' 2._Tk eJ)ecij iofis Qf_^^miis.— It is the duty of the several Federal courts, under the Constitation, to apply the laws of the United States in the decision of cases arising under them. In the performance of this duty, these tribunals find it necessary, from time to time, to interpret the laws; that is, to place an authoritative construction upon the enactments of Congress which come before them for adjudication. The decisions rendered in such cases are of equal authority with the statutes upon which they are based and, until reversed or overruled, have similar obligatory force." Many important questions respectirtg military affairs have come before these courts for decision — a number of such questions, indeed, have been decided by the Supreme Court of the United States, the highest judicial authority known to the Constitution. Others have been passed upon by the Circuit and District Courts and the Court of Claims. The decisions so rendered are of the highest authority upon the subjects to which they relate. 3. Decisions of the President, Opinions of the Attorney-General, of the Secretwry^ Tl "«?% ?g? Ju c[gTrMvocaie ''' General, e^c— Closely related to the declSooB of courts in point of authoiTEy"'aM™the decisions of the President and of the heads of the sevei-al executive departments in matters coming within their respective jurisdictions. Under this head fall the opinions of the Attorney-General, the constitutional law adviser of the executive branch of the Government ; ' the decisions of the Secretary of War, as the military representative of the President, those of the Commanding General of the Army, and the opinions of the Judge- Advocate General in matters relating to military law and the practice and procedure of courts-martial. The rulings and decisions of the several authorities competent to convene general courts-martial are also obligatory within the spheres of their respective commands. Army_Reg-ulatioiis. — Next in point of authority to the formal enact- ments of Congress and the decisions of courts may be mentioned the General Regulations or Standing Orders of the Army. This term applies to a body of administrative rules relating to the management of military affairs and the performance of military duties, issued by the President as the head of the executive branch of the Government. ^ While these executive utterances have the obligatory force of law,* they are, in this regard, inferior ' See the cliapter entitled Maktial Law: Military Government. 2 Cooley, Const. Law, 146, 147. ' See Sections 354, 356-358 Rev. Stat.; lOpin. Att.-Qen., 311; 6 iKd., 336; 7 iUd., 693- 10iftt"(i., 367; 11 iUd... 189. * The Supreme Court has repeatedly recognized the legality and force of Army Reo;ulations : "The Army Regulations, when sanctioned by the President, have the force of law, because it is done by him by the authority of law." (U. S. vs. Freeman 3 How , 567 ) " As to the Army Regulations, this court has too repeatedly said that they have the force of law, to make it proper to discuss that point anew." (Gratiot m. tJ. S. ITS AUTSOSITT ANB 80UE0E8. 7 to statutes, and it is th erefore essential to therr_jraliditj, as ^^i^lpj^gntlj^be s een, that they shall" not__be in conflict with the fornTal^enactments of •Congress.'] JJonformity to Statutes. — Army regulations proper are merely executive' or administrative rules and directions as distinguished from statutes. A regulation cannot legislate, nor can it contravene the statute law. A regu- lation in conflict with an existing Act of Congress can have no legal effect; if, subsequently to the issue of a regulation, an Act is passed with which it conflicts, it becomes at once inoperative." Eegulations, like statutes, are 4 How., 118.) " The power of the Executive to establish rules and regulations for the •government of the Army is undoubted. " (U. S. v. Eliason, 16 Pet., 301.) " The Army Regulations derive their force from the power of the President as commander-in-chief, and are binding upon all within the sphere of his legal and constitutional authority. " (Kurtz vs. Moffitt, 115 U. S., 503.) See also Swaim m. U. S., 165 U. S., 553, decided by the Supreme Court, March 1, 1897. The term " Regulations of an Executive Department " describes rules and regulations relating to subjects on which a Department acts, which are made by the head under an Act of Congress conferring that power, and thereby giving to such regulations the force of law. A mere order of the President or of a Secretary is not a regulation. Harvey Ds. V. S., 3 C. CIs. R., 88, 42; Dig.' Opin. J. A. Gen., 166, par. 1, and note 1. A " regula- tion " affects a class of oflBcers ; an " instruction " is a direction to govern the conduct of the particular officer to whom it is addressed. Landram w. U. S., 16 C. CIs. R., 74. The Army Regulations when 'sanctioned by the President have the force of law, because it is done by him by the authority of law. TJ. S. i>s. Freeman, 3 How., 556; Gratiot vs. U. S., 4 How., 80; Exparte Reed, 100 U. S., 13; Smith m. U. S., 23 C. CIs. R. 452. When Congress permits regulations to be formulated and published and carried into effect from year to year, the legislative ratification must be implied. Maddox m. U. S., 30 C. CIs. R., 193, 198. The authority of the head of an Executive Department to issue orders, regulations, and instructions, with the approval of the President, is subject to the condition necessarily implied, that they must be consistent with the statutes which have been enacted by Congress. U. S. vs. Symonds, 120 U. S., 46, 49; U. S. vs. Bishop, idem, 51; Dig. Opin. J. A. Gen., 166, par. 1, note 2; par. 6, p. 168. Regulations can have no retroactive effect. U. S. vs. Davis, 132 U. S. , 334. Provision of statute exists by which the statute regulations of the Army may, within certain limits, be altered by the Secre- tary of War, but there is no such prt)vi8ion in regard to the statute regulations of the Navy. 6 Opin. Att.-Gen., 10; 8 ibid., 337. The same discrepancy exists in the military law of Great Britain, Ibid. Regulations prescribed and framed by the Secretary of War and which are intended for the direction and government of the officers of the Army and agents of the Deoart- ment do not bind the commander-in-chief nor the head of the War Department Burns vs. U, S., 12 Wall. , 346; Smith vs. U. S., 34 C. CIs. R., 209, 215. But see Arftiur vs. V S 16 0. CIs. R., 423, and U. S. vs. Burrows, 1 Abb., 351. Regulations made pursuant to law, certain regulations respecting the Civil Service for example, are binding even upon the Executive, and the heads 6t the several Executive Departments, until changed. Regulations which heads of Departments are expressly authorized tn make, in which the public is interested, become a part of that body of public records of which the courts take judicial notice. Caha vs. TJ. S., 153 U. S., 311. ' For an able and exhaustive discussion of this subject from all points of view, see the " Remarks on the Army Regulations " by Judge- Advocate General G. Norman Li'eber, of the United States Army; Benet, 8, 9; Ives, 18-20; Winthrop, 17-37; Tytler 17-31 ■ Adye, 4, 5; Simmons, §§83-84; Clode, Mil. Law, 13-15; Man. Mil. Law, 7-18-'Dia- j' A. Gen., 166-169. ■ s- • " Dig. J A. Gen. 166, par. 1; ibid., 168, par. 6. Army regulations are not to be con- founded with the "rules for the government and regulation of the land (and naval) forces " which Congress is empowered to make by Sec. 8, Art. I, of the Constitution ■ these being, of course, statutory rules. The use in this section of the word "regula- tion " ; the fact that the published Army Regulations contain sundry statutory provisions not distinguished from the mass of regulations proper, and embrace also some subjects 8 MILITARY LAW. intended to operate in the future, and are not to be given retroactive effect unless their language clearly requires it.' Classification. — Regulations aia. susceptible .oJL-jdaegitott ioP under t he _followingJj£ads : j, ( 11 Those w bich ha.ve rp.cp.ivp.rl t he sanction of Congres s. These cannot be altered, nor can exceptions to them be made, by the executive authority, unless the regulations themselves provide for it. In reality, the approval of Congress makes them legislative regulations, and they might therefore be more strictly classified with other statutory regulations with reference to subjects of military administration. They are, however, included under the general head of Army Eegulations, as approved codes of executive regulations.^ wbicb seem scarcely within tlie scope of executive direction or military orders, but to pertain rather to the province of the statute law ; and the further fact that the Army Regulations as a body rec'eived a special recognition in the Act of July 28, 1866 — • these circumstances have contributed to confuse regulations with statutes much to the embarrassment of the student of military law. Regulations proper (unlike Articles of War, which are statutes) are simply orders and directions made and published to the Army by the President, either as commander-in-chief, tor the purposes of the exercise of command over the Army, or as Executive, for the purposes of the execution of powers vested in him by law. By Congress, indeed, the President or Secretary of War is sometimes expressly required to make special regulations for special objects. Such regulations, however, are not of the class of general army, regulations proper. TJiese may be made by the President at any time, at his discretion, and of his own authority. That regulations promulgated through the Secretary of War are to be " received as the acts of the Executive," see U. S. vs. Eliason, 16 Peters, 301; TJ. S. vs. Webster, Daveis, 59; U. S. vs. Freeman, 1 ■yVood. & Minot, 50, 51; Lockington's Case, Brightly, 288; McCall's Case, 5 Philad., 289; In Matter of Spangler, 11 Mich., 332. An authority which can legally be vested by legislation only, cannot of course be conferred by an executive regulation. Thus held that the expenditure of the proceeds of the sale of articles manufactured by the prisoners at the Military Prison, such pro- ceeds being public funds, could not properly be the subject of an army regulation. Dig. J. A. Gen., 167, par. 2. As illustrating the distinction between statutes and regulations, and the principle that regulations can have force only so far as they are not inconsistent with the statute law, see U. S. vs. Webster, Davpis, 56-59, and 2 Ware, 54-60; Boody vs. U. S., 1 Wood. & Minot 164; McCalVs Cas- "i Philad., 259; /n,r«Griner, 16 Wise, 484; Magruder to. U. S., Deverenx. 148; 1 Opins, Att -Gen., 469; 4 id., 56-63, 225-7; 6 id., 10, 215, 865; 8 id., 343^ 11 id., 354; O'Brien, 31. As to the inferior force and obligation of the British Army Regulations as compared with the Mutinv Act (and Articles of War thereby authorized), see Samuel, 193-197. Clode (MW. & Mar. Law. p. 55) illustrates the nature of these Regulations in noting that originally " ench colonel had his own Standing Orders— no General Regulations being in existenf-e — for the discipline and exercise of his regiment." ■ Dia:. J. A. Gen., 168. par. 7. « Lieber. Remarks on the Army Regulations. An impression seems to have existed that a peculiar " force of law" is given to regulations by their approval by Congress, but it seems to be an erroneous one. If, as above said, the making of regulations is within the" jurisdiction both of Congress and the President, but the authority of Congress is superior to that of the President, it follows that when regulations are approved by Congress they cannot be altered by him until the approval is removed. To this extent regulations approved by Congress may be said to have a superior force of law to those not thus approved, but this is not the erroneous impression referred to. Precisely vphat this is is not clear, but it seems to have been believed that the approval of regulations by Congress makes them of higher obligation. This, however, is not true. Whether approved by Congress or not, they have, so long and so far as they are in force, the force of law, and this cannot be divided into degrees. The distinction, in thia ITS AUTHORITY ANB 80UR0ES. ( a) Those that are made pursnant to and in aid of a statu te. These it be not prohibited by the statute) may be modified by the executi authority, but until this is done they are binding as well on the authori that made them as on others. Examples of regulations of this class a those relating to the examination and promotion of enlisted men, ma( pursuant to the Act of Congress of Jaly 30, 1892, and the executive ord of March 30, 1895, prescribing limits of punishment.' (3) _Those emanating from, and depending u t)on. the constitution authori by of tbie I'residenb as commander-in-chief of the Army."'"7ch^^ stitutp, by f ar the greater part of the Army Tj.ftgnla.tipna They are not on modified at will by the President, but exemptions from particular regulatioi are given in exceptional cases; the exercise of this power with reference ■ them being found necessary. " The authority which makes them [reguli tions] can modify or suspend them as to any case, or class of cases, ( generally." ' Under this head fall the regulations respecting military con mand, those in relation to salutes, ceremonies, and military honors, as we as those which control the routine of military duty, wherever performed, i garrison or in the field, together with those relating to the conduct of mil tary operations and those affecting orders and official correspondence. (42_^Departfljen^l regulations, jnadejDyvirtM of the authority conferrt by section 161, Eevised Statutes, on the head of each Department,""'' 1 prescribe regulations .not^lag^SsfeHsL^wijh Ta^rTfo^ oTh Departmen|, the conduct of its officers and clerks, the distribution and pe formance of its business, and the custody, use, and preservation of i records, papers, and property appertaining thereto." ° Mere repetitious of legislative enactments are not included under any ( these heads.* Military Orders. — Ord ers are authoritative directions, respecting tl respect, that has sometimes been made between regulations approved by Congress ar those not thus approved is misleading. Ibid., p. 7. ' Thus it was held in tJ. S. «.?. Barrows (1 Abbott, 351; 24 Fed. Cases, 1018) that regulation of the Treasury Department, made in pursuance of an Act of Congres becomes a part of the law, and is of the same force as if incorporated in the body of tl Act itself. Ibid,, p. 4. ' Lieber, Remarks on Army Regs., p. 4; 5 Deo. First Comptroller, 29; and see ar 1 of Circular No. 4, 1897, A. G. 0., and U. S. m. Eliason, 16 Pet., 303; also Davis's Mi] tary Laws, p. 146. ' Lieber, Remarks pn Army Rpgs. , p. 4. ^33 Ct. Cls., 460; 3 id., 38. The executive resfulations of the British military ai ministration consist principally of the Rules of Procedure, the Queen's Regulations, an Royal Warrants. The Rules of Procedure are authorized by the Army Act and prescril the regulations for the formation of military courts, the trial of offenders, and the e; ecution of sentences; the Queen's Regulations relate to the interior economy of corps, tl maintenance of discipline, and the powers and duties of commanding oflScers, an supplement the Army Act as to offenses against enlistment and the disposal of prii oners; and Royal Warrants prescribe the permanent regulations as to the goveri ment, discipline, pay, promotion, and conditions 'of service. (Pratt's Military Lav London, 1893.) 10 MILITARY LAW. military service, isyed^b j the Presidea tt ^.the_coms titational command er- in-chiefTOT by his subordinate commanders, wjth^_a_jiew_to reguMeJthe conduct of "military persons, or control the movements^or operationsdr individuals or organizations under, their several commands. 'j The orders of the President~are "assimilated to regulations in all matters respecting their sanction and operation; indeed, the General Eegulations are sometimes called the Standing Orders of the Army. Orders issued by subordinate com- manders operate only within the sphere of their military authority, and bear, in some respects, the same relation to the Army Eegulations and the orders of superior commanders that the latter bear to the enactments of 'Congress. As disobedience to the lawful orders of a superior officer is given the character of a military offense by the 21sb Article of War, such utter- a,nces are given an additional sanction by the terms of that article which makes such disobedience punishable at the discretion of a court-martial. The Unwritten^ilitoy Law ; the Custom of Warj^Customs of Service. — The oath taken by each member of a court-marbial reqliires"Iiiih,'iE~a certain case, to administer justice in accordance with " the custom of war in like cases." The unwritten military law, made up of customs of service, or of " the custom of war " as it is called in the 84th Article of War, is, in substance, a form of customary law developed from usages of the military service so constantly repeated and so long adhered to as to confer upon it the character of an authoritative rule of action. It is followed in cases in respect to which the written law is silent, or to which its provisions do not apply. The 92d Article of War, for example, does not prescribe by w;hom the oath shall be administered to witnesses before a court-martial. By the custom of service it ij__ad ministered .by the judge-advocate.' So, too, in a case where its sentence is discretionary, a court-martial may impose any punishment that is sanctioned by the custom of service, although (in the cases of enlisted men) the same may not be included in the list of the more usual punishments contained in the Manual for Courts-martial. ° -Conditions Essential to the Validity of a Custom of Service. — Customs of service resemble in their origin and development those portions of the Common Law of England which were of similar derivation, and to be valid must conform to the same conditions. The terms custom and usage, as used at Common Law, are not synonymous ; the latter applying to an act or practice which, by constant, regular, and invariable repetition, has gradually acquired the force of law; the former applies to the legal sanction acquired by such constant repetition and invariable observance, that is, to the custom, ' U. S. vs. McDaniell, 7 Pet., 2, 15; O'Brien, 37; De Hart, 165; Ives, 2G, 21; Winthrop, 37; Tytler, 6; Simmons, §§595, 596; Clode, Mil. Law, 13-15; Man. Mil. Law, 22; Man. for Courts-martial. 4; Dig. J. A. Gen., 27, 30. « Dig. J. A. Gen., 108, par. 2; ibid., 140, par. 2; ibid., 697, par. 8. s Ibid., 697, par. 6. . ^ ITS AUTHOBITT AND SOUBCES. 1] or customary law, dereloped by long-continued adherence to a particula practice or usage. The following are the principal conditions to be fulflllec in order to constitute a valid custom of service : .1 . It mus t M Innn r,nntinu^.^._ This is the first essential of a custom habits are not quickly acquired, even by individuals; for a particular usagi to become habitual in a community, therefore, a long period of time i required. " If a particular usage can be shown to have commenced, it i void as a custom. Of course it must have had a beginning; but if its begin ning can be discovered, then the individual who originated the custom cai be ascertained, and one man will be the maker of the law, which is impossi ble. But if there is no evidence of a beginning, it will be presumed to hav( existed duriag the whole period of legal record." ' 2. Tt muxt hp. mnp,rnUij..knnmu and invariably^ observed by those wJio an alleged to be subject to its operati on. This follows from the definition^ th( 'term; for Miat is not a custom which is casually or repeatedly excepted from .and a practice which is not habitual, or generally observed in a community lacks, the most essential characteristic of a custom. 3. It must be compulsory. In other words, it must be an invariable rnl( of action ; that is, it must have the obligatory form of a customary law. 4. It must not be in opposition to.t hc term^, ^fif ,,^,,,%Mm p„ Statutes, a has been seen, have the highest sanction of all forms of the written law; an( anything contrary to their tenor is void and without obligatory force : ; custom opposed to a statute has therefore no obligatory effect. Extinguishment of Custom by Non-user. — As usage constantly observec for a long period of time constitutes custom, it follows, by parity of reason ing, that formal abandonment or long-continued non-usage will operate t( destroy a particular custom, that is, to deprive it of its obligatory character. Field of Operation. — The field of operation of the unwritten military la's is very extensive, and its provisions are so fully established and so generall; understood in the military service that it is extremely unlikely that it wil be replaced, at any time in the future, by statutes or regulations; such i course, indeed, would hardly seem to be necessary, since its existence am obligatory force are expressly recognized and sanctioned by the clause abovi cited from the 84th Article of War. The body of unwritten military law ii ' 3 Blaokstotie, pp, 74^77. ^ The punishment of ball and chain, though sanctioned by the usage of the service should, in the opinion of the Judge- Advocate General, be imposed only in extreme cases Its remission has in general been recommended by him except in cases of old offender or aggravated crime, where deemed serviceable as a means of obviating violence or pre venting escape. This penalty has (as have also those of shaving the head and drummln) out of the service) become rare in our army, since the further corporal punishment o branding or marking has been expressly prohibited by statute. (Dig. J. A. Gen., 697 par. 8.) This example furnishes an illustration of the abandonment of a custom o service partly from disuse, or non-user, and partly because of its inconsistency with th terms of a statute. 12 MILITARY LAW. force at the time of the adoption of the Federal Constitution also received statutory sanction in the Act of September 29, 1789,' which provided that the troops composing the then existing military establishment shonld be governed by the Eules and Articles of War enacted, prior to the adoption of the present Constitution, by the Congress under the Articles of Confedera- tion. It is applied by courts-martial in the definition of certain military offenses, in determining whether certain acts or omissions are punishable, as such, especially in cases arising under the 61st and 62d Articles of War, and in fixing upon the form of certain military punishments. The pro- cedure of courts-martial is also regulated, to a certain extent, by the custom of service, and it is appealed to, at times, as a rule of interpretation of terms technical to the military service.' Usages. — It has been seen that mere practices, or usages of service, although persisted in for considerable periods of time, are not customs and have none of the obligatory force which attaches to customary law, properly • so called. The fact that such usages exist, therefore, can never be pleaded in justification of conduct otherwise criminal or reprehensible, nor relied upon, as a complete defense, in a trial by court-martial. Th^_jnay, how- ever, with the permissiQsuQl.Jihe court, be established in evidencej with a view to constitute a partial defense, to mitigate the severity of. the punis]i;;_ ment, or to dimimsh, sbrnewhat, 'the ffegree of criminality ^9! the offense set forth'iS~niie'"cISi^s^"d's|recifications. ' TABULAR STATEMENT OF MILITARY LAW.* / Law appli- cable to military pel sons. Military Law applicable at all times. r Written. Unwritten, Martial Law. Military rule, or the law - of hostile occupation. 1" Statutes : Articles of war and enactments of simi- lar character. Decisions of courts. Opinions of Attorneys- General, etc. Army regulations. Military orders. Customs of service = the custom of war in like cases. (84 A. W.) In general unwritten. A part of Interna- tional Law, supplemented by the orders and instructions of belligerent govern- ment to its military commanders in the field ; together with a few statutory pro- visions applicable to a state of war. Administered by courts- martial. Administered by military commissions. ' Act of September 29, 1789 (1 Stat, at Large, 95). • The definition of the term "desertion" as used in the 47th Article and of the term " mutiny " as used in the 32d Article is based upon customs of service. «1 Winthrop, 45; Ives, 31; U. S. m. McDaniell, 7 Pet., 3, 15. * Prepared by Captain Geo. H. Boughton, 3d Cavalry, Assistant Professor of Law, U. S. Military Academy. CHAPTEE II. MILITARY TEIBUNALS. COTJRTS-MARTIAL : THEIE ORIGIN AND FUNCTION. Origin and History. — The Court-martial, as a military tribunal, ante-' dates the standing army in English history. As an agency for the maintenance of discipline in armies, i ts history c an be traced back to a period considerably earIier.,l hBn„ tiifiJJj iristm^^ especiallx^^^the Romans, the most important and powerful of the military nations of antiquity,' from whose system of jurisprudence it was borrowed by the Teatonic leaders during the Middle Ages, and adapted to the peculiar conditions of the feudal system. It had become fully established on the continent of Europe at the time of the JSTorman Conquest, and was introduced into England, as an incident of that system, by William the Conqueror and his immediate successors, in the latter part of the eleventh century. ' The Constable and Marshal; the Constable's or Marshal's Court; the Court of Chivalry. — Of the high officers of William's court, there were two, the Constable and Marshal, whose duties and functions were peculiarly mili- tary. The constable, unde r the directi.o n...of._the.^iflg:,.3ras the copimander of the royal armies." When an occasion arose for the employment of the military forces7"ttliS' officer, in addition to his duties^s^ cqmmande£-ii^^ sat"as~a'"Su'perior "judge for the trial of all matters iii.Jj|iggtion_b^ween soIHiers'aiidTolTSir Sl'S Of th e airmyT In addition to this duty, the Constable's Court nad power to try and punisb. certain -criminal acts, subversiye of discipline, which would now be termed military offenses, and over which the common-law courts, as such, were at first without jurisdiction. This court was composed of the constable, assisted by the marshal, by three doctors of the civil law (indicating its Eoman origin), and by a clerk, ' See Bruce, Institutions of Military Law (1717). '' The office of constable is said to have been conferred upon the Bohuns, Earls of' Hereford and Essex From this family it passed to the Dukes of Buckine;ham, as heirs general, and on the attainder of Edward, Duke of Buckingham, for high treason,* the office reverted to the crown and, sive upon ceremonial occasions, has not since been conferred upon a subject. Grose, Mil. Antiq., 316. For an account of the rights and privileges claimed by the Constable of Bourbon, see Grose, Mil. Ant., vol. ii. p. 218. The office of constable in France was suppressed by Louis XIII. in 1627. IMd.,'n. p. * 1.3 Henry VIII. 13 14 MTLITAET LAW. whose duties resembled those of the present judge-advocate, in that he was required to prosecute all delinquents brought before the Constable's Court for trial.' The Earl Marshal. — The Earl Marshal was the officer next in rank to the constable.'' As the, dnfa'pa nf t.hp p.nnsta.V.1f» related to the comma nd of t he Army, those of the mars hal, asjihg^name implies, res"emTjled_tJ3XiSfi-aQa: per- fa mied by the ad | jutant- general. When thfi T^cp. nf conpl^a.hlf. p,fiaspH t.r> exis t his duties -descende d to and were performed by tfit ^ ^^.rl Tna.rabj^ i], anj the^ court of the;^ cnnptal^lfl cam e t,n ha known as the Marsh al's Court or, in its_modem_form, as jtha,_Qo.uj±-Jaartial. Aside from its strictly crimmal jurisdiction, it had much to do with the decision of questions relating to fiefs and military tenures, and to the performance of military duties under them ; and this jurisdiction continued to exist, and to be exercised, after the common-law courts had begun to exercise jurisdiction over questions relating to the holding of land in feudal tenures. Matters respecting estates in land, regarded merely as a question of property, going to the common- law courts for decision, but controversies respecting rights, dignities, and successions, in which no question of property was involved, being decided by the Marshal's Court.' ' Grose, Mil. Ant., vol. ii. p. 216. For other accounts of the origin and jurisdiction of this court see Tytler, 22; Adye, 7; Manual Mil. Law, 7-12; Wintbrop, 46. See, also, a paper on the Articles of War, by Judge-Advocate General Q. Norman Lieber, U. S. A. , in the first volume of the Journal of the U. S. Mil. Service Institution. ' The office of earl marshal was conferred by William the Conqueror upon Roger de Montgomery and William Fitzosborne. It was held, later, for several generations, by the family of de Clare, Earls of Pembroke, after which, upon a reversion to the crown, it was conferred upon the family of Thomas Howard, Duke of Norfolk, where it has since remained. (Grose, Mil. Antiq., ii. 224.) The earl marshal is now head of the Heralds' College, and exercises a small part of his original jurisdiction in respect to crests and armorial bearinsrs. ' The jurisdiction of this court, according to Sir Matthew Hale, was declared and limited by common law as follows: "First, negatively; its officers were not to meddle with anything determinable by the common law, and therefore, insomuch as matter of damages, and the quantity and determination thereof, is of that cognizance, the court of the constable and earl marshal could not, even in such suits as were proper for their authority, give damages against the party convicted before them, and, at most, could only order reparation in point of honor. Neither could thev, as to the point of reparation in honor, hold plea of any such words or things wherein the party was relievable by the courts of common law. Second, aifirmatively ; their jurisdiction extended to matters of arms and matters of war, viz., as to matters of arras (or hpraldry) the constable and marshal had cognizance, viz., tonchine the risht of cnats of armour, bearings, crests, supporters, pennants, etc., and also touching the right of place and precedence, in cases where either Acts of Parliament or the kine's patent P^e being the foiintain of honor) had not already determined it; for, in such cases, thev had no power to alter it. These things were anciently allowed to the jurisdiction of the constable and marshal, a=! having some relation to military affairs; but so restrained that tliey were only to determine t'le right, and give reparation to the party injured, in point of honor, but not to repair him in damages." (Hale, History of the Common La'w. pp. 36-38 ) "As to matters of arms, however, the constable and marshal had a double oower : (1) a ministerial power, as thev were anciently two great ordinary oflB'"ers in the king's armv: the ''onstable being, in effect, the kin"''s general, and the marshal beins: employed in marshaling the king's army, and keeping the list of the officers and soldiers therein ; and his certificate being the trial of those who-e attendance was requisite ; * (2) a * Littleton, § 103. MILITABY TBIBUNALB. 15 Before the oflB.ce of marshal began to decline in importance, the institu- tion of the Court-martial, as a tribunal for the trial and punishment of military offenses, had become firmly established. The place of the marshal and his assistants had been taken by military oflftcers detailed for the pur- pose, or performing the duty by title of oflfice, and the court had come to be convened, or appointed, by the crown, either directly by the sovereign in person, or in pursuance of a commission, issued by him for that purpose, to a proper military commander.' Courts-martial : their Authority and Function. — Military Law is enforced by means of certain tribunals, created for the purpose, called Courts-mar- tial, the origin and history of which have already been described. These tribunals are created by the order of a proper convening authority, and are empowered, by statute, to determine challenges, to try accusations against military persons, to reach findings of guilt or innocence respecting the same, and to impose appropriate sentences. Thfiir se ntences, -h ov^exer,^ have .in t hemselve s, no legaLsaMity,. bejagJB.th&Ba'ture of recommen^atiQns,merjBly, until they have recejvggLthfi. approval of ,„». military commajider, designated by law for this purpose, called the reviewing _,g^i^^fy. With such approval or confirmation, however, their sentences become operative and acquire the same sanction as the sentences of civil courts having criminal jurisdiction, and are entitled to the same legal consideration. C ourts-martial ExecntL Ye..AseBciJBS..gTT-Clc»iriBdoiaE,fcial- are no part of the judici ary of the .X[nited States,. but simply. ing.toJ»fio.talities of the.executive power. They are creatures of orders j the power to convene them, as well astEe power to act upon their proceedings, being an attribute of command. But, though transient and summary, their judgments, when rendered upon subjects within their limited jurisdiction, are as legal and valid as those oi any other tribunals, nor are the same subject to be appealed from, set aside^ or reviewed by the courts of the United States or of any State." iudicial power as, first, appeals of death or murder committed beyond tlie sea, according to the course of the civil law ; second, the rights of prisoners taken in war ; third, the oflEenses and miscarriages of soldiers, contrary to the laws and rules of the army." (Adye, Treatise on Courts-martial, 2-6.) ' Littleton, S 102. „ ,.,.„ „ t^ tt » Dig J A Gen , 313, par. 1; Swaim vs. U. S., 165 U. S.. 558. See Dynes vs. Hoover, 20 Howard 79; Ex parte Vallandigham, 1 Wallace, 243; Wales »s. Whitney 114 U. S.. 564- Fuffitive Slave Law Cases, 1 Blatch., 635; /ra re Bogart, 2 Sawyer, 402, 409; Moore vs Houston 3 S. & R., 197; Ex parte Dunbar, 14 Mass., 392; Brown vs. Wadsworth, 15 Verm. 170: People vs. Van Allen, 55 N. Y.. 31; Perault vs. Band, 10 Hun, 322; Ex parti Bright 1 Utah, 148, 1.54; Moore vs. Bastard, 4 Taunt., 67; 6 Opins. Att.-Gen., 415,425. "No acts of military officers or tribunals, within the scope of their jurisdiction, can be revised, set aside, or punished, civilly or criminally, by a court of common law." Tylei vs. Pomeroy. 8 Allen, 484. Where a court-martial has jurisdiction, " its proceedings can- not be collaterally impeached for any mere error or irregularity committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which give conclusiveness to th( judgments of other legal tribunals, including as well the lowest as the highest, undei jjkecircumstances." Expa/rte Eeed, 10 Otto, 13. 16 MILITARY LAW. -> TVrj Iitary Tribunals fio^Tts nf TT1!31£!t — Although, as will presently be seen, the jarisdiction conferred upon courts-martial by the Articles of War is criminal in character, it should also be borne in mind that they are in a special sense courts of honor, whose object is the maintenance of a high standard of discipline and honor in the Army, and which, in the exercise of this jurisdiction, try many accusations based upon acts entirely unknown to the civil courts as criminal ofEenses. Only courts composed of military oflBcers can have that knowledge of the standard of discipline and honor in the Army which would enable them to weigh correctly acts impairing it, and courts-martial, in maintaining this standard, may properly be said to be courts of honor.' Classification. — Courts -martial are classifiedj in. accordanca^with their jurisdiction, into Generaf^S' Inferior Courts-martial j the latter term including the Begimental Court, the Garrison. Court-martial, and the Sum- mary Court. The General Court-martial is the highest tribunal known to military law, and has the most comprehensive jurisdiction in respect to both persons and cases. It may try any person subject to military law for any offense over which such tribunals are given statutory jurisdiction. The jurisdiction of the minor courts is restricted as to the persons and cases triable by them, and as to the punishments which they may impose upon conviction. How Created and Terminated. — Courts-martial differ from civil tribunals having criminal jurisdiction, not only in the nature and extent of their jurisdiction, as will presently be seen, but in the manner of their creation. Civil courts, whether of general or special jurisdiction, are created by statutes, which define their composition, endow them with appropriate jurisdiction, and determine the times when, and the place or places where their sessions shall be held. Courts-martial, on the other hand, though authorized by statute, are created, in every case, by proper military orders, issued by commanding officers having authority, under the Articles of W^r, to call them into being. When the cases referred to them for trial have been completed, or, in certain contingencies, at the discretion of the appoint- ing power, they are dissolved by the authority that created them and simply cease to exist as military tribunals.' MILITARY TKIBUNALS: TABULAR STATEMENT. Courts-martial. Power to try and sentencB. Courts of Inquiry. Power to investigate merely. 1. General courts-martial ; complete jurisdiction (73, 73, 74 A. W. Sec. 1326, R. S.) 2. The Summary Court. (81 A. W.) 3. The Regimental Court. (81 A. W.) 4. The Garrison Court. (83 A. W.) 1. Courts of Inquiry. (115 A, W.) 3. The Regimental Court for doing justice. (30 A. W.) ' Judge-Advocate General. ' Dig. J. A. Gen., 817, par. 13, 14; 330, par. 30; 88, par. 5. CHAPTEE III. THE CONSTITUTION OF COUETS-MAETIAL. THE GEKBRAL COUET-MAKTIAL. <^Haju> --ia^ 2. *A O Power to Convene. — Authority to convene general courts-martial is con- ferred by the 73d Article of War upon " any general officer commanding an army, a territorial division or department, or colonel commanding a separate department." Under the authority thus conferred general courts-martial may be convened " whenever necessary " by the following persons: 1. By the Pre&identjoJ__Jhs_JJnAt&ji,.^aia^ the jmi^stdtiiti&nalcoin- ■• mande r-in-clmf~ This he may do not only in the case expressly stated in the Article " when any such commander is the accuser or prosecutor of any officer under his command," but at his discretion and as an incident of his authority as commander-in-chief.' 2. Where the conveninci officer is accuser or prosecutor. The President, in addition to the power above described, is expressly authorized by this Article to convene general courts-martial when the usual and proper conven- ing authority " is the accuser or prosecutor of any officer under his com- mand." The reason for this exception is obvious. An officer standing ' " A military officer cannot be invested with greater authority by Congress than the commander-in-chief, and a power of command devolved, by statute, on an officer of the Army or Navy is necessarily share J by the President. The power to command depends TipM discipline, and discipline depends upon the power to punish; and the power to punish can only be exercised, in time of peace, through the medium of a military tribunal. Since the earliest legislation of our Government it has undoubtedly been understood and intended that whatever powers were granted to general officers vpere, at the same time, granted and intended to be shared by the President," "whose name is under- stood as written in every statute which confers upon a military officer military authority. " Swaim vs. U. S., 165 U. S., 553; ibid., 28 Ct. of Cls., 173, 321, 224; Runkle m. U. S., 19 Und., 396; Dig. J. A. Gen., 81, par. 1: A convening of a general court-martial nominally by the Secretary of War is in law a convening by the President, and therefore as legal as If the President himself had signed the order, llbid., 606, par. 2.) The authority of the President as commnnder-in-ohief to institute general courts- martial lias been in fact exercised from time to time, from an early period, in a series of cases commencing with those of Brigadier-General Hull, Major-General Wilkinson, and Major-Greneral Gaines, tried in 1813-1816, and including that of Brevet Major-General Twiggs, tried in 1858. His authority in this particular has been in substance affirmed by the Judiciary Comruittee of the Senate, in Report Nn. 868, dated March 3, 1879, Forty- fifth Congress, third session. (A single member M the committee apparently dissented, in a subsequent report of April 7, 1879, Mis. Doc. No. 21, Forty-sixth Congress, first session.) Ibid., 606, par. 1, note 1. 17 18 MILITARY LAW. toward the accused in the relation of an accuser or prosecutor is thereby disabled from acting with the impartiality which it is the purpose of the law to secure in all matters respecting the procedure of courts- martial. The question whether a particular convening officer is to be regarded as having been the " accuser or prosecutor " of the accused in the sense of this Article is mainly to be determined by his animus in the matter. If, when the facts of the alleged ofEense are communicated to him, he determines that the same constitute a sufficient and proper ground for a trial, and / thereupon djrecls a suitable officer, as an officer of his staflf, or the command- / ing officer of the regiment or company of the accused, to prepare or prefer the charges, he acts simply in the dae performance of an official duty and not'as" accuser or prosecutor." ' Nor is his action any the less offlSial if, in the desire to have the proceedings regular and effectual, he himself directs as to the form of the charges, or, after the same are prepared, revises them so that they shall sufficiently set forth the alleged ofEenses. Much less is he to be deemed an " accuser or prosecutor " where he causes the charges to be preferred, and proceeds to convene the court, by the direction of the Secretary of War or a competent military superior. Oa the other hand, where he himself initiates the charge out of a h ^tile animus toward the accused or a personal interest adverse to him, or from a similar motive adopts and makes his own a charge initiated by another, he is to be deemed an " accuser or prosecutor " within the Article. Nor is he the less so where, though he has no personal feeling or interest in the case, he Jias be come possessed with the conviction that the accused is g uilty and dese rves punishment and, in this conviction, initiates, or assumes as his owu, the charge or the prosecution. For in this case, equally as in the former, he is unfit to be ?>, judge upon the merits of the case: jn the one instance he is .tog, mi^Qli prejudififi d to be q ualifi ed to do justice; in the other he has condemned the accus ed beforehand." ' Compare late opinion, to a somewhat similar effect, of the Attorney-General of Auerust 1, 1878 (16 Opins., 106), in which it is also held that wliere the record of the trial fails to indicite that the convening offifer v^as the " accuser or prosecutor " of tlie accused, the Intter, in applying to the Secretary of War to have the proceedings pro- nounced invalid on this ground, may establish the fact by the production of affldamts setting forth the circu'nstances of the case and the action of the commander. Dig. J. A. Gen., 83, par. 7, note 1. ' Dig. J. A. Gen., 83, par. 7. The objection that the convening commander was the "accuser" or " prosecutor" of the accused, being one going to the legal constitution of the court, may be raised before the court at any stage of its proceedings. Or it may be taken to the reviewing officer with a view to his disapproving the proceedings, or mny be made to the President, after the approval and execution of the sentence, with a view to having the same declared invalid or to the obtaining of other appropriate relief. Regularly, however, the objection, if known or believed to exist, should be taken at or before the arraignment. If the objection is not admitted by the prosecution to exist, the accused, is entitled to prove it like any other issue. Dig. J. A. Gen., 84, par. 8. The provision of this Article (and of Art. 73), that, when the convening commander ia " accuser or prosecutor," the court shall be convened by the President or " next higher commander," being expressly restricted to general courts, has of course no application to regimental or garrison courts. The same principle, however, will properly be applied to THE CONSTITUTION OF COUBTS-MABTIAL. 19 The 73d Article, in empowering the commanders above named to consti- tute the superior^ courts-martial, makes them the Judges, in general, of the expediency of ordering such courts in particular instances. Except where specially authorized to do so by law or regulation, an ofBcer or soldier cannot demand a court-martial in his own case.' Where a commander, empowered by this Article to convene a general court-martial, declines, in the exercise of his discretion, to approve charges submitted to him by an inferior and to order a court thereon, his decision should, in general, be regarded as final." Nature of the Authority. — The authority to order a court under this Article is an attribute of command. Thus a department commander II I i i iiii iiii M iii '••i nr i detached and absent from his,comia an_d-|or anv consi^ ^g|fJg„ penod . by reason of having received a leave of absence (whether of a formal or an informal char- 1/. acter) or having been placed upon a distinct and separate duty (as that of a member of a court or board convened outside his department, for example), is held to be incompeteat.„.diuda g...a2db_daafiiiC £u..tQ.,.Qrdfir a yeneraL-CDurt - martial, as d epartment coramander^ even though no other ofiBcer has been assigned 'or Jias succeeded to the command of the department. ' Nor can a department commander thus absent exercise such authority through a staff officer or other subordinate, or delegate the same to a subordi- nate to be exercised by him: the authority must be exercised in person, by the proper commander, and is not, nor can it properly be made, the subject of delegation.* 3. By certain military commanders. The 72d Article of War also con- fers the power to convene general courts-martial upon " any general officer commanding an army, a territorial division or a department, or colonel com- manding a separate department." The term "general commanding an army " relates not only to the commander of an army, properly so called, — that is, of the field organization composed of troops of all arms of the service, arranged in divisions and brigades, — but inclades as w ell, the ma jorrj^eaeral, or other officer, assigned by the President to command of the Army of the United States.' The other officers named in the Article aTre those entrusted proceeding's before tliese courts, if it can be done without serious embarrassment to the service. Ibid., par. 9. ' Dig. J. A. Gen., 81, par. 2. ' Ibid., par. 3. s Ibid., 83, par. 5. * Ibid. Nor, where a general court-martial duly convened by a department commander has, at a time when the commander is thus absent from his command, been reduced, by an incident of the service, below five members, can another member legally be detailed upon the court by the assistant adjutant-general, or other subordinate officer remaining in charge of the -headquarters; since such a detail would be an exercise of a portion of the authority vested, by the Article, in the commander, and which can in no part be delegated. Ibid., 83, par 5. * The command exercised by the commanding general of the Army, not having lieen made the subject of statutory regulation, is determined by the order of assignment It has been habitually composed of the aggregate of the several territorial commands that have been or may be created by the President. The Act of August 5, 1883, (32 Stat, at Large, 338,) also authorizes the President to 20 MILITARY LAW. witli the command of the departmental organizations into which the territory of the United States is habitually divided in time of peace,' though their power to convene general courts-martial is not restricted by that fact, but may be exercised ' ' whenever necessary, ' ' in time of peace as well as in time of war. Power to Convene Courts-martial in Time of War. — It will be observed that the 72d Article of War is not restricted in its operation to a time of peace, but is equally applicable to a state of peace or war. Nor is it restricted to the territory of the United States, but may have extra-terri- torial operation, and confers power upon the oflScers named to convene courts-martial wherever the forces of the United States may lawfully happen to be; and courts so convened are legal tribunals even if convened in the enemy's country and beyond the territorial jurisdiction of the United States." In time of war^ however, two classes of persons are given. ^ivtJiarity by the TdsLAlticleof War to convene general courts-martial — commanders of direct tUe commanding general of tlie Army, or the chief of any military bureau of the War Department, to perform the duties of Secretary of War in the case contemplated by Section 179 of the Revised Statutes. The general commanding; the Army, in the exercise of his command, which is created by executive order and is composed of the aggregate of the geographical or territorial commands into which the territory of the United States is divided, has power under the 72d Article to convene general courts-martial and, by his upproval or confirmation, to make their sentences effective. In practice courts-martial for the trial of military persons who do not form part of the departmental commands above described are convened and their sentences are carried into effect by this officer. The Army Regulations of 1895 contain the following provisions respecting the duties of this officer: The military establishment is under the orders of the commanding general of the Army in that which pertains to its discipline and military control. The fiscal affairs of the Army are conducted by the Secretary of War, through the several staff departments. (Par. 187, A. R., 1895.) All orders and instructions from the President or Secretary of War relating to military operations or affecting the military control and discipline of the Army will be promulgated through the commanding general. (Par. 188, A R., 1895.) Paragraph 189 of the Army Regulations of 1895 contains the provision that in time of peace army corps, divisions, and brigades will not be formed except for purposes of instruction. Section 9 of the Act of July 17, 1863, (13 Stat. L., 594,) authorized the President to establish and organize army corps according to his discretion. Section 10 of the same Act provided for the staff of an army corps. Such legislation was not necessary, however, the organization of separate armies, army corps, grand divisions, wings, reserves, and the like, in time of war being a matter within the discretion of the President as the commander-in-chief. For regulations respecting the organization of armies in the field in time of war, see the volume entitled " Troops in Campaign." ' In time of peace our Army has been habitually distributed into geographical commands, styled, respectively, military divisions, departments, and districts — the districts, as organized prior to 1815, corresponding to the commands now designated as departments. These divisions and departments can be established only by the President; but, within their respective departments, commanding genei"als have from time to time grouped adjacent posts into temporary commands, which are now known as districts. Military divisions, each embracing- two or more departments, have obtained from May 17, 1815, to June 1, 1831; from May 19, 1837, to July 12, 1843; from April 30, 1844, to October 31, 1853; from July 25 to August 17, 1861; and irom October 13, 1863, to July 2, 1891. Department organizations have been continuous since 1815. (Scott Dig., p. 344.) ^ U. S. m. Anderson, 9 Wall., .56; The Protector, 13 Wall., 700; Georgia vs. Stanton, 6 Wall., 50; Luther m. Borden, 7 How., 1; Kennett «s. Chambers, 14 How., 38. THE CONSTITUTION OF C0UMT8-MARTIAL. 2]^ diYisions and comm a,^,fj,fir.a.,of separatebriya^a. This provision applies to * the tactical organization of armies in the field,' as distinguished from the geographical organization of military divisions and departments into which the territory of the United States is habitually divided in time of peace. The commander of an army ia the field in time of war derives his authority to convene courts-martial from the 73d Article; the commander of the principal unit of command in an army in the field — the division— and the commander of the exceptional field organization — the separate brigade — derive their power to constitute general courts-martial from the 73d Article, which is restricted in its operation to a state of war. This Article makes provision for the contingency of the convening officer being the accuser or prosecutor by the requirement that, in such case, " the court shall be appointed by the next higher commander." Separate Brig^ades. — To constitute a particular command a separate trigade within the meaning of this Article, the organization must not exist as a component part of a division; to authorize its commander to convene a general court-martial it must be detached from, or not connected with, any division, but must be operating as a distinct command." ' Section 1114 of the Revised Statutes contains the requirement that "in the ordinary arrangement of the Army two regiments of infantry or of cavalry shall constitute a brigade and shall be the command of a brigadier-general, aud two brigades shall constitute a division and shall be the command of a maj r-general; but it shall be in the discretion of the commanding general to vary this disposition whenever lie may deem it proper to do so." Paragraph 189 of the Army Regulations of 1895 provides that " in time of peace army corps, divisions, or brigades will not be formed except for purposes of instruction." ' Dig. J. A. Gen., 85, par. 1. In accordance with the terms of Section 1114 of the Revised Statutes a division is an organized command consisting of at least two brigades, and a brigade is a similarly organized command consisting of at least two regiments of infantry or cavalry. (Ibid.) General Orders 251 A. G. 0. of 1864 contained the require- ment that " where a post or district command is composed of mixed troops, equivalent to a brigade, the commanding officer of the department or Army v^ ill designate it in orders as a separate brigade, and a copy of such ordtr will accompany the proceedings of any general court-martial convened by such brigade commander. Without such authority, commanders of posts and districts having no brigade organization will not convene general courts-martial." Under this order, which was applied mainly to the commands designated in the late war as " districts," it was held by the Judge-Advocste General as follows: That the fact that a district command was composed not of regiments but of detachments merely (which, however, in the number of the troops, were equal to or exceeded two regiments) did not preclude its being designated as a " separate brigade "and that when so designated its commander had the same authority to convene general courts- martial as he would have if the command had the regular statutory brigade organization; that though a district command embraced a force considerably greater 'than that of a brigade as commonly constituted, yet if not designated by the proper autliority as a "separate brigade" its commander would be without authority to convene general courts-martial, unle-s indeed his command constituted a separate " army " in the sense of the 72d Article; that it was not absolutely necessary, to give validity to the proceed- ings or sentence of a general court-martial convened by the commander of a separate brigade, that the command should be described as a separate brigade in the caption or superscription of the order convening the court and prefixed to the record, or even that a copy of the order designating the command as a separate briga^ie should accompany the proceedings. As to the latter feature. General Orders No. 351 of 1864 is viewed as directory merely. And though not to accompany the record with a copy of the order thus constituting the command would be a serious irregularity, as would be also — though 22 MILITARY LAW. " Time of War," How Determined. — The dates when a state of war begi na aiiitesaiSSies„are questions of fact, to be determined by Congress and t he Executive, the politicaldepartmentror'the Govmimen^"cITarged, in the Do h s S tu tiou, with the power to declare war and to conduct military opera- tions. The dates so determined are binding upon the judiciary, and serve to fix the period within which, under the 73d Article of War, the commanders of divisions and separate brigades may constitute general courts-martial.' The Superintendent of the Military Academy.— Section 1326 of the Eevised Statutes confers power upon the Superintendent of the Military Academy to convene general courts-martial for the trial of cadets. This officer is also empowered to execute the sentences of such courts, except the sentences of suspension and dismission, subject to the same limitations and conditions now existing as to other general courts-martial." THE INFEBIOR COUKTS-HAETIAL. The Regimental Court-martial.— The 81st Article of War provides that " every officer commanding a regiment or corps shall, subject to the pro- visions of Article 80, be competent to appoint, for his own regiment or corps, courts martial, consisting of three officers, to try offenses not capital." In a less serious one— the omission of tlie proper formal description of the command from the convening order, yet if the command had actually been duly designated, and in fact was, a separate brigade, and this fact existed of record and could be verified from the oflBcial records of the department or Army, the omission of either of these particulars, though a culpable and embarrassing neglect on the part of the court or judge advocate, virould not, per se, invalidate the proceedings or sentence. Ibid., par. 3. ' Dig. J. A. Gen., par. 4; ibid., 748. ' As the cadets at the Military Academy are not commissioned officers, they are, under the"83d Article, subject to trial by garrison courts-martial. (7 Opin. Att.-Gen., 323.) The Academic Regulations also confer upon the Superintendent a limited power to punish, summarily, certain offenses committed by cadets in violation thereof. The offenses so made punishable are defined in the regulations and orders of the Academy, and the pun- ishments which may be imposed are there specified. The undergraduate cadets are not commissioned officers, and are, therefore, not competent to sit on a court-martial, and are triable by a regimental or garrison court-martial. (7 Opin. Att.-Gen., 333.) In their internal academic organization as officers, non-commissioned officers, and privates, they are not subject to the Articles of War as respects their relation to one another, but only as respects their relation to commissioned officers of the Army, on duty as such at the Academy. {Ibid.) Cadets are amenable to trial by court-martial for violations of the regulations of the Academy, as "conduct to the prejudice of good order and military discipline." * (Dig. J. A. Gen., 310, par. 8.) The Superintendent of the Military Academy can have no power, by virtue of a regu- lation of the Academy, to try and punish a cadet for a military offense for which, under the Articles of War, he is amenable to trial by court-martial. A regulation assuming to confer upon him such power would be in contravention of law and inoperative. Other- wise of a regulation which merely authorized a measure of discipline. So where a cadet, on arraignment for a military offense, pleaded in bar that he had already, for the same offense, been punished by reduction from cadet officer to cadet private, under par. 107, Academy Regulations, 7ield that, regarding such reduction as a form of school disci- pline only, the plea was properly overruled by the court. Ibid., par. 11. * In this connection may be noted the opinion of the Soh'citor-General (15 Opins., 634) that except for the offense of hazing, specially made punishable by the Act of June 23, 3874, cadets of the Naval Academy are not subject to trial by court-mai-tial. TEE CONSTITUTION OF C0VBT8-MARTIAL. ' 23 addition to the commanders of regiments, properly so called, the chiefs ol each of the Staff Corps as include enlisted men in their personnel may con- vene these courts at posts or places occupied by troops under their direcl military control and command.' The strictly criminal jurisdiction of this tribunal having been transferred to the Summary Court by a recent enactment of Congress, its functions arc now largely restricted to cases, arising under the 30th Article of War, which involve the redress of grievances alleged by enlisted men to have arisen in the administration of the commands to which they belong. It can now be lawfully convened for the trial of a soldier only in a case, properly referable to a Summary Court, in which the party defendant, being a non-commis- sioned ofl&cer, formally requests that the charges against him be passed upon by a regimental court-martial, or when such trial has been authorized by the ofiBcer competent to the trial of the accused by a general court-martial." The Garrison Court-martial. — While the Garrison Court-martial has the same jurisdiction in respect to offenses' as the other inferior courts recognized by the Articles of War, its jurisdiction as to persons is considerably more extensive, and it may try enlisted men of any corps or arm of the service who are attached to, or form a part of, the command of the officer who has power to convene it. The Eegimental Court already described relates strictly to organizations. It is thus seen to be independent of place or locality, and may be convened at a military post or in the field, on the march, or in bivouac — wherever, indeed, the organization to which it per- tains may happen to be. The Garrison Court, on the other hand, is fixed ' Meld that the Chief of Engineers was authorized to order a court under this Article for the trial of soldiers of the engineer battalion ; the same, in connection with the engineer officers of the Army, being deemed, in view of Sees. 1094, 1151, 1154, etc., of the Revised Statutes, to constitute a "corps" in the sense of the Article. So held that the Chief of Ordnance was authorized to convene such a court for the trial of the enlisted men authorized by Sec. 1163, Rev. Sts., to be enlisted by him ; the same being deemed to constitute with the ordnance officers such a separate and distinct branch of the mili- tary establishment as to come within the general designation of "corps" employed in the Article. So held that the Chief Signal Officer, under the provisions of the Acts of July 24, 1876, June 20, 1878, etc., relating to his branch of the service, was authorized to order courts-martial, as commanding a " corps" in the sense of this Article. Dig. J. A. Gen., 93, par. 1, ' The Regimental Court is the oldest, in respect to its creation, of the several inferior courts Itnowu to our military practice. It originally consisted of all the commissioned officers of the legiment, and had in early times a more comprehensive jurisdiction than is now assigned to it by law. In the British service its membership was reduced to five about the middle of the last century, and in our own service was fixed at three by the resolution of Congress of May 31, 1786. The Regimental Court was replaced in 1862 by the Field-officer's Court, a tribunal composed, as its name implies, of a single officer, and clothed with summary jurisdiction for the trial of enlisted men of the regiment to which it pertained. The Field-officer's Court, which was thus given exclusive juris- diction for the trial of all cases properly justiciable by inferior courts in time of war, was itself replaced by the Summary Court created by the Act of June 18, 1898.* See, also, the 83d Article in the chapter entitled The Abticles op Wae. * 30 Stat, at Large, 483. 24 MILITARY LAW. in respect to place, and may be conyened by " the officer commanding' a garrison, fort, or other place," subject to the qualification, however, that the troops constituting the garrison shall consist of different corps." Like the Kegimental Court, it is superseded by the Summary Court in all cases in which that tribunal may properly be convened for the trial of enlisted men. Constitution and Composition. — The rank of the convening officer is immaterial so long as he is the lawful commanding officer of the post or garrison at which the court-martial is convened. The presence of a single representative, commissioned or enlisted, of a corps, arm, or branch of the service other than that of which the bulk of the command is composed will be deemed sufficient to fix upon the command the character of one in which " the troops consist of different corps " within the meaning of the Article, and will empower the commanding officer thereof to order a court-martial under the same.' THE SUMMAET COUKT. History of the Tribunal. — As the cases referable to the inferior courts are, as a rule, very much less serious in importance than those which are referred to general courts-martial for trial, and as a prompt disposition of such cases is, in general, more beneficial to discipline than a protracted investigation into their merits, the tendency in our service has been to replace the older inferior courts by tribunals having a more summary juris- ' It is not essential Ibat the " oflBcer commanding" should be of the rank of field- officev. A commanding officer, though a captain or lieutenant, may convene a court- martial under this Article, provided he has the required command. Dig. J. A. Gen., 93, par. 1. A commanding officer is not authorized to detail himself Yiii'h. two other officers as a court under this (or the preceding) Article. An " acting assistant surgeon," not being an officer of the Army, cannot be detailed on such court. Ibid., par. 3. ' The general term " other place" is deemed to be intended to cover and include any situation or locality whatever— post, station, camp, halting-place, etc. — at which there may remain or be, however temporarily, a separate command or detachment in which different corps of the Army are represented, as indicated above. If such command, so situated, contains three officers other than the commander available for service on court- martial, the con)mander will be competent to exercise the authority conferred by this Article. Ibid., par. 3. • Held, in view of the early orders relating to the subject and of the practice there- under, that the presence on duty with a garrison, detachment, or other separate com- mand, at a. fort, arsenal, or other post or place, and as u, part of such command, of a single representative, officer or soldier, of a corps, arm, or branch of the service other than that of which the bulk of the command is composed — as an officer of tl;e quarter- master, subsistence, or medical department, a chaplain, an ordnance sergeant or hospi- tal stevpard, an officer or soldier of artillery where the command consists of infantry or cavalry, or vice versa, etc. — might be deemed sufficient to fix upon the command the character of one " where the troops coiTsist of different corps," in the sense of this Article, and to empower the commanding officer to order a court-martial under the same. The presence, however, with the command, of a civil employe of the Army (as an "acting assistant surgeon") could have no such efiect. Dig. J. A. Gen., 94, par. 4. TEE CONSTITUTION OF COURTS-MARTIAL. 25 diction and a somewhat less elaborate procedure ; thus enabling the minor infractions of discipline, in camp or garrison, to be more expeditiously dis- posed of. The Field-officer's Court. — The first tribunal thus created was the Pield- offlcer's Court, which was established by Act of Congress in 1863.' This court, as its name implies, was composed of a single officer and was given exclusive jurisdiction over the cases formerly tried by the regimental and garrison courts; its proceedings were reviewed and carried into effect by the " brigade commander, or by the commander of the post or camp " to which the regiment was for the time attached. Although the jurisdiction of the Field-officer's Court was not expressly restricted to a time of war in the enactment creating it, such a limitation was, in fact, imposed in the revision of the Articles of War in 1874," by the insertion of a clause in the 80th Article restricting its operation to " time of war." The result of this enactment was to restore to the Eegimental and Garrison Courts the au- thority to try enlisted men for minor offenses committed by them in time of peace. The, Field;pfficer|g,,Conrt ceased to exist onA^gust confor mity to t he re.B£3l. p ro vigktna^ol the Aotof Jujie l^l.g^98.' The Summary Court of 1890. — "With a view to secure greater expedition in the disposal of cases in which enlisted men were charged with the com- mission of minor military offenses, a Summary Court was established by Act of Congress in 1890,' and clothed with jurisdiction over offenses properly triable by inferior courts, to the exclusion of the garrison and regimental courts. The enactment creating the court contained the requirement, however, that if the accused " objected to a hearing and determination of his case by such court," his request for a trial before a garrison or regi- mental court " should be granted as a matter of right." As the jurisdic- tion of this tribunal was expressly restricted to time of peace, the Field- officer's Court was called into being on April 33, 1898, at the outbreak of the war with Spain. On June 18, 1898,' Congress, by an appropriate enact- ment, replaced this tribunal by the present Summary Court, the constitution and composition of which will now be explained. The Summary Court. — Constitution and Composition.— The law creating the Summary Court provides that " the commanding officer of each garri- son, fort, or other place, regiment or corps, detached battalion, or company, J Section 7, Act of July 17, 1863. (13 Stat, at Large, 598.) > Act of June 23, 1874. (18 Stat, at Large, 113.) > Act of June 18, 1898. (30 iHd., 483.) * Act of October 1, 1890. (26 Stat, at Large, 648.) The Act establishing the Sum- mary Court of 1890 constituted the second line officer in rank the couit for the trial of cases properly cognizable by it ; where only officers of the staff were on duty at a post, the second staff officer in rank was to constitute the court. » Act of June 18, 1898. (30 Stat, at Large, 483.) 25a MILITABY LAW. or other defcacfement in the Army, shall have power to appoint for such place or command, or in his discretion for each battalion thereof, a Summary Court to consist of one officer to be designated by him, before whom enlisted men who are to be tried for offenses " which, prior to the passage of thtf Act> were " cognizable by field-oflBcers detailed to try offenders under the provisions of the 80th and 110th Articles of "War shall be brought to trial within twenty-four hours of the time of the arrest, or as soon thereafter as practicable." ' It is provided, however, in the statute establishing it that the Summary Court " may be appointed and the ofiBcer designated by superior authority when by him deemed desirable." The statute also con- tains the proviso that " when but one commissioned officer is present with a command, he shall hear and finally determine such cases." " Exception. — The Act establishing the Summary Court excepts from its jurisdiction all enlisted men holding certificates of eligibility to promotion; it also provides that " non-commissioned officers shall not, if they object thereto, be brought to trial before summary courts without the authority of the officer competent to order their trial by general court-martial, but shall in such cases be brought to trial before garrison, regimental, or general courts-martial, as the case may be.° ' Act of June 18, 1898. (30 Stat, at Large, 483.) » Ibid. ' Ibid. MILITARY LAW. 252 CONSTITUTION OF COURTS-MARTIAL: TABULAR STATEMENT." " General. Constitution of Courts- martial. President. Military Commander. Inferior. ■I Commander of Organization or Garrison. As tlie constitutional com- mander-in-cMef . (U. S. Con- stitution.) When convening officer is ac- cuser or prosecutor. (73 A. W.) In case of officer summarily dismissed in time of war. (Sec. 1230, R. S.) At all times. 1. General officer commanding an army, territorial division, or department, or Colonel com- manding a separate depart- ment. (72 A. W.) 3. Superintendent of tbeMilitary Academy. (Sec. 1335 R. S.) , 3. Commander of division or sep- ) In war arate brigade. (73 A. W.) J only. 1. Summary Court, convened by "1 regimental, battalion, de- tachment, garrison, or post | commander. (Act of June 18, 1898.) I 8. Regimental Court. Convened " by regimental commander. (81 A. W.) 3. Garrison Court. Convened by garrison or post commander^ (83 A. W.) At all times. • Prepared by Captain Geo. H. Boughton, 3d Cavalry, Assistant Professor of Law, U. S. Military Academy. \^\u- 9 CHAPTER IV. THE COMPOSITION OF COURTS-MARTIAL. Composition in General. — The statutes authorizing the several military tribunals known as courts-martial — contain the requirement that they shall be composed of commissioned officers — a term applied to persons in the mili- tary service, of and above the rank of additional second lieutenant, who have been appointed by the President, with the advice and consent of the Senate, and whose appointments are evidenced by commissions under seal, signed by the President and countersigned by the Secretary of War. ' While none but commissioned officers may sit as members of courts-martial and courts of inquiry, certain persons holding commission^ from the President, and, as such, entitled to the denomination of commissioned officers, are not subject to detail as members of courts-martial. To this class belong prof gssors at I the Military Academy, who are without military ranlc,~and officers o f the retired list, who, in view of the provisions of Sections 1259 and 1360 of the Revised Statutes, cannot legally be assigned to court-martiaTduty." ~~ The Marine Corps. ^^^^^THe 77tli Article of War provides that" officers of the regular army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces except as provided in Article 78." The statute creating the Marine Corps, normally a part of the Navy, provides ' Under tWs head fall, also, wLat are called " recess appointments " made by the President during an adjournment of the Senate, under the authority conferred by Article II, Section 3, of the Constitution. 2 Sections 1333 and 1336, Revised Statutes ; Dig. J. A. Gen., 615, par, 2. ' Dig. J. A. Gen., 87, par. 1. Until the officers of the several stafE corps had military rank conferred upon them by Congress, it was not customary to place them on duty aa members of courts-martial, although there are instances in which tbey were employed as judge-advocates ; this for the reason that without either actual or relative rank it was impossible to assign them seats, or to determine the order of voting in accordance with the requirement in that regard which is contained in the 95th Article of War. So soon, however, as rank was conferred upon them by enactments of Congress, tbey became eligible for court-martial duty. For the reason above assigned the professors at the • Military Academy, and the chaplain authorized at that institution by the Act of February 18, 1896, (29 Stat, at Large, 8,) are still ineligible for that duty. A medical officer of a post or station is legally eligible for service on courts-martial, either as a member or a judge-advocate, and in small commands surgeons and assistant surgeons are not un- frequently detailed upon such service. In view, however, of the fact that a medical officer of a post, with a hospital or sick men under his charge, is practically continuously " on duty," besides requiring a considerable time for study, it is deemed to be in general prejudicial to the interests of the service to detail such officers upon court-martials where it can well be avoided. Dig. J. A. Gen., 493, par. 2. 86 TME COMPOSITION OF COUBTB-MABTIAL. 27 that the corps so established " shall be liable to do duty ia the forts and garrisons of the United States, on the seacoast, or any other duty on shore, as the President, at his discretion, may direct." ' When so detached by order of the President, the law provides that the Marine Corps " shall be subject to the rules and Articles of War prescribed for the government of the Army. " ' The 78th Artic l e of "Wa r jermits officers of that arm, when I so detached for servi ce •with the Army, to "be associated with officers of 1 the regalar_armylQnI courts-raartial for the trial of offenders belonging to the I regula r army or to forces of the Marine Corps so detached." ' Courts-martial for the Trial of the Militia. — Section 1658 of the Eevised Statutes contains the requirement that " courts-martial for the trial of 1 mil itia shall be com posed of militia officers only "; the 77th Article of War /- contains the more comprehensive provfsion that " officers of the regular army shall not be competent to sit on courts for the trial of officers or soldiers of other forces except as provided in Article 78." The convP T-ga nf f.ln'g prnpn- sition, h owever, is n ot true, an d officers of militia or other forces may sit on_cou rG^artial"foFthe trial of officers or en 1i,^ f,^d me n-of-thft reg ular army .' Volunteers. — Though assimilated to the militia in some respects, as, for ' example, in the mode of original appointment of regimental and company officers, the volunteer forces are as distinct in law from the militia as are the troops constituting the regular military establishment.' Under existing ' Section 1619, Rev. Stat. » Section 1631, ibid. ' In one class of cases — that in whicli a member of the militia neglects or refuses to serve when called into actual service in pursuance of a requisition or order of the President of the United States — it has been decided that courts-martial convened by the authority of the State and of the United States had concurrent jurisdiction. Military ofEenses not being cognizable by the civil courts of the United States, the militia laws have provided that offenses of disobedience to the President's order calling the militia into actual service shall be co^jnizable by courts-martial of the United States ; a statute of Pennsylvania made such offenses triable by courts-martial convened by the authority of the State, and it was held by tlie Supreme Court, in the case of Houston vs. Moore (5 Wheaton, 1), that the statute of the State of Pennsylvania in such case was not in con- flict with the similar enactment of Congress, and that a case of concurrent jurisdiction properly existed. In the case of Martin t>s. Mott (12 Wheaton, 19) the judgment in the case of Houston ts. Moore was affirmed, and it was held that the decision of the President was conclusive as to the existence of the emergency justifying the calling forth of the militia. It was also held that courts for the trial of such delinquents must be composed of officers of the militia, but that such provisions of the Articles of War as regulated the procedure of courts-martial for the trial of persons belonging to the regular establish- ment and to the militia actually in service, did not apply to the trials of members of the militia who had refused or neglected to appear in response to a call issued in pursuance to the order or requisition of the President. * Prior to the passage of the Act of April 23, 1898, (30 Stat, at Large, 483,) it was held that, although officers and soldiers of volunteers, not being militia, were as much a part of the Army of the United Slates as are regular officers, yet, in view of the terms of this Article, an officer of the regular army, so called, would not be eligible for detail as a member of a court-martial convened for the trial of volunteer officers or soldiers, nor, when duly detailed as a member of a court-martial, would he be competent to take part in the trial of a volunteer by such court. Dig. J. A. Gen., 89. As the Act "to provide for temporarily increasing the military establishment of the United States in 27* MILITABT LAW. law officers and enlisted men of the volunteer forces, once mastered into th e Sjilitairy Rprviee of the United Sta tes^ccnpT, so longas the v continx ie in ^ tich service, pr eciseljy the same status in respect to tiie operation o f military law as officers and enlisted men of the" regular aJmy. ' Their term of service is indeed briefer, but this does noFconstitute"^ material distinction, since the term of regular officers has also, in some cases, been limited by statute to a definite period, as the duration of an existing war.' Number of Members. — The 75th Article provides that " g eneral cou rts- martial may consist of any number of office rs, fr om five to thirteen inclusive; but they shall not consist of less thau thirteen when that number can be con- vened without- manifest injury to thft. service. " ' Such judicial powers, therefore, as are vested by statute in a general co art-martial become opera- tive and may be fully exercised by a properly constituted tribunal composed time of war," approverl April 23, 1898, declares that the Army of the United States in time of war shall consist of both the regular army and the volunteer army, it was held that the volunteer army was not other ' ' forces " within the meaning of the 77th Article of War. Circular 21, A. Gt. 0., 1898. But this ruling has been reversed by the Su- preme Court in the case of McClaughry V8. Deming, 186 TJ. S., 49. ' Act of June 18, 1898. (30 Stat, at Large, 483.) The term " volunteers " as applied to a part of the military forces of the United States, as distinguished from the militia, does not appear in the early legislation of Congress and seems to have come into use during the war of 1812* aud to have had its origin in Article I, Section 8, of the Constitution, which restricts the use of the militia to the cases therein set forth— "to execute the laws of the Union, to repress insurrections and repel invasions." As it was contem- plated to use the troops raised for that war for purposes of invasion, and us some of the requisitions for militia had not been honored by the governors of States, the attempt was made to raise troops by the direct authority of the United States, under the power " to raise and support armies " conferred upon Congress by the Constitution. These troops • were called " volunteers " to distinguish them from those constituting the regular military establishment. The troops raised for the period of the Mexican War were also of this class. As illustrating the distinction made in Article I, Section 8, of the Constitution, between the Army and the militia, and indicating the status of the volunteers, during the late war, as a part of the former, see Kerr m. Jones, 19 Ind., 351 ; Wantlan ««. White, id., 471 ; In the Matter of Kimball, 9 Law Rep., 503 ; Burroughs vs. Peyton, 16 Grat., 488. 485. The first Mutiny Act (1 Wm. & M., ch. 5, 1689) recognized thirteen as the normal number of ofiBcers necessary to compose a general court-martial in the clause respecting the death-sentence, which contained the requirement that "no sentence of death shall be given against any offender in such case by court-martial, unless nine of thirteen officers present concur therein." The same enactment, however, contained the require- ment that "if there be a greater number of officers present, then the judgment shall pass by the concurrence of the greater part of them so sworn, and not otherwise." This would indicate that courts composed of more than thirteen members were known to court-marti.nl practice at the date of the adoption of the Mutiny Act. Walton, History of the British Standing Army, pp. 589, 540. ' Dig. J. A. Gen., p. 745, par. 1. » Seventy-fifth Article of War. In the Duke of Albemarle's Articles (1606) the num- ber is fixed at thirteen. Article 140 of the Code of Gustavus Adolphus fixes the mem- bership at the same number. * Act of February 6, 1812. (Stat, at Large, 676.) The Act of May 28, 1798, (1 ibid., 558,) conferred i similar auchority to accept the services o£ " volunteers," but was never carried into operation. TEE COMPOSITION' OF COURTS-MARTIAL. 275 of at least five members. A less number, as will presently be seen, is with- out power to enter upon the trial of a case, to proceed with a trial already begun, or to perform any act of a judicial nature if, for any reason, its membership should be reduced below that number. The number of officers who shall compose a particular court is determined, in conformity to the terms of the statute, by the proper convening authority. In the leading case of Martin vs. Mott it was held by the Sapreme Court of the United COMPOSITION OP COTJETS-MAETIAL"; TABULAR STATEMENT.' \, Composition of Coaits-tnartial, ■ 1. Commissioned officers, liaving military rank. (75, 77, 78 A. W.) 3. On active list of tlie Army. Eetired officers not eligible. (Se( 1259, E. S.) 3. Rank to be positive or relative and, if practicable, superior to that of accused. (79 A. W.) 4. Number, five to thirteen inclusive; of thirteen when that number can be assembled without manifest injury to the service. (75, 76, A. W.) 5. Forces ; regular army, marine corps, volunteers, and militia when in active service. Regular officers not eligible to try officers or enlisted men of militia or other forces. (77 A. W., Sec. 1658, R. S.) Except members of marine corps when detached for service with, the Army. (78 A. W.) ' Prepared by Captain Geo. H. Boughton, 3d Cavalry, Assistant Professor of Law, U. S. Military Academy. 28 MILITART LAW. States that the clanse above cited in relation to the number of mem- bers was "merely directory to the officer appointing the court, and his decision as to the number that can be convened ' without manifest injury to the service,' being in a manner submitted to his discretion, must be con- clusive." ' Where at a particular post or detachment the statutory number of mem- bers cannot be assembled, the 76th Article provides that the commanding officer shall in such case " report to the commanding officer of the depart- ment, who shall thereupon order a court to be assembled at the nearest post or department at which there may be such a requisite number of officers, and shall order the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled." " Trial by Inferiors in Rank. — The 79th Article of War, which confers exclusive jurisdiction upon general courts-martial for the trial of commis- sioned officers, contains the added requirement that " no officer shall, when it can be avoided, be tried bv officers inferior to him in rank ." Whether the trial of an officer by officers of an inferior rank can be avoided or not is ' Martin vs. Mott, 13 Wkeaton, 19, 35; U. S. vs. MuUan, 140 U. S., 240; Dynes vs. Hoover, 30 How., 81. The limitation with reference both to the numbers and rank of the members of a general court-martial is discretionary with the appointing power. MuUan m. U. S., 33 Ct. Cls., 34. It is not essential to the validity of the proceedings that the order convening a general court-martial of less than thirteen members should state that "no other officers" (or "no greater number") "than those named can be assembled without manifest injurv to the service." Attorney-General Wirt* did not hold sucli a statement to be essential, but simply expressed the opinion that the President, before confirming a certain death-sentence adjudged by a court of less than thirteen members, would properly satisfy himself that a court of the full number could not have been convened without prejudice to the service. It was held at an early period by the U. S. Supreme Court that it was for the convening authority to determine as to what number of officers could be detailed without manifest injury to the service, and that his decision on the subject would be conclusive.! Dig. J. A. Gen., 88, par, 8. ' Prior to the passase of the first Mutinv Act in England there does not seem to have been any fixed rule as to the number of oflScers necessary to constitute » general court- martial. In the reign of James II. seven oflBcers were requisite to constitute such a tribunal. Courts held under the first Mutiny Act :f were composed of thirteen officers " whereof none under the degree of captain." The peculiar circumstances attending the enactment of the Mutiny Act in the reign of William and Mary suggest, as a reason for fixing the number at thirteen, the analogy of the judge and jitry of twelve before whom criminal case-^ at common law were tried. Such an analogy, indeed, is suggested by Olode, in his Military and Martial Law, in the reason which he assigns for the selection of the number thirteen as compising the general court-martial, first authorized, by statute, during the reign of William and Mary: "When provision was first made, under the military code, for the trial of an offender by a court composed of the president and twelve officers, it may reasonably be presumed t'lat the controllii.g analogy which suggested the tribunal was the civil administration of justice by a presiding judge appointed by the crown, and twelve jurymen summoned bv the sheriff, to deal with all the questions of law and fact that might be brought before them." § In the English service the president is appointed, as such, by the convening authority, and has certain functions assigned to him by statute and regulation. Jl This is not the case in the United States. * 1 Opins. Att -Gen.. 296. + Martin IIS. Mott. 13 Wheat.. 19, 35. 1 1 William and M>ir.y, Ch. 1, S. 4. I Clode, Military and Martial Law, 104. II Army Act of 1881. THE COMPOSITION OF COURTS-MARTIAL. 29 ^i_c(uestion not for the accased or the court^^ut_^r_Jhe_office£jcon.TCnmg/ thecoarF; and his decision upoothis point (as indicated by the detail itself as set lorth in the convening order), as upon that of the number of members to be detailed, is conclasive. An officer, therefore, cannot successfully challenge a member simply because he is of a ranis inferior to his own.' Minimum Membership. — While the normally constituted general court- martial sliould, and usually does, contain thirteen members, it has been seen that it is not necessary to the legality of its procedure that it should be composed of that namber; the corresponding requirement respecting the common-law jury, that it shall maintain its numbers unimpaired throughout a particular trial, being obyiously out of place, and at times impossible of attainment, in the practice of courts-martial, especially in time of war or during the pendency of active military operations. The minimum below which a general j3ourt-martial ceases to have power to try cases is fixed, in the 75th Article of War, at five members. When, therefore, for any cause, a general court-martial has been reduced below that number, it loses its character as a military tribunal, and can no longer exercise jurisdiction as such until, by the return of absentees or the detail of new members, the legal quorum has been restored.'' In the procedure of the infe rior courts-martial having multiple member- ship tEeTEreeTmiSberecornposmgTEeTnbM t ' Dig. J. A. Gen., 89, par. 1. The statement sometimes added in orders convening courts-martial to the effect tbat " no oiEcers other than those named can be detailed without injury to the service" is as superfluous and unnecessary for the purpose of excusing the detailing of officers junior to the accused as it is for accounting for the fact that less than the maximum number Lave been selected for the court. (See 75th Article.) Ihid. , par. 2. At the opening of a trial by court-martial it was objected by the accused that nine of the thirteen members as detailed were his inferiors in rank, and that the detailing of . such inferiors could have been " avo'ded" without prejudice to the service. Seld that the objection was properly overruled by the court. Whether such a, detail "can be avoided " is a question to be determined by the convening authority alone, and one upon which his determination is conclusive * Ibid., par. 3. ^ Where, in the course of a trial, the number of the members of a general court- martial is reduced by reason of absence, challenge, or the relieving of members, the court may legally proceed with its business so long as five members, the minimum quorum, remain; otherwise where the number is thus reduced below five. Ibid., 87, par. 3. While a number of members less than five cannot be organized as a court or proceed with a trial, they may perform such acts as are preliminary to the organization and action of the court. Less than five members may adjourn from day to day, and where five are present and one of them is challenged the remaining four may determine upon the sufficiency of the objection. Ibid. , par. 4. A court reduced to four members and thereupon adjourning for an Indefinite period •does not dis.»!oIve itself. In adjourning it should report the facts to the convening authority and await his orders. He may at any time complete it, by the addition of a new member or members, and order it to reassemble for business. Ibid., 88, par. 5. Where a court, though reduced by the absence of members, operation of challenges, etc., to below five members, yet proceeds with and concludes the trial, its further pro- ceedings, Including its finding and sentence (if any\, are unauthorized and inoperative. Ibid., par. 6. * See MuUan vs. U. S., 140 U. S.. 240. 30 MILITABT LAW. / throughouithe trial, and.no jurisdiction can be exercised unless that^number / of membeis-jjarticipates injhe proceedings. Composition of the Inferior Courts-martial.— The membership of the several inferior couits, like that of the general court, is restricted to com- missioned officers.' The Eegimental Court is composed of three officers of the regiment or corps to which the accused belongs;' the Garrison Court^ of three officers detailed from the post or command of the officer by whosrfp^ order the court convened." Each is provided with a jadge-advocate. Tyr to act as judge advocate in his stead, held that its action was wholly unauthorized and tliat its proceedings were properly disapproved. -f It is only the convening authority (or hia successor in command) who can relieve or detail a member or a judge-advocate. Ibid., 317, par. 16. j & . . * See the 90th Article of War. + See G. C. M. O. 63, War Dept., 1874. THE COMPOSITION OF COURTS-MARTIAL. 35 statutes and regulations confer upon him the power to summon witnesses and in certain cases to compel their attendance by the issue of compulsory process. The law, regulations, and the eastern of service thus vest in the jadge-ad-vooate the duty of preparing the case for trial and charge him with the responsibility of conducting the prosecation. A court-martial, being a judicial body, has power to hear and determine cases which have been properly brought before it, but, except in case of certain contempts committed in its presence, is without authority to insti- tute trials or to conduct prosecutions. It looks to the judge-advocate, its regularly constituted prosecuting officer, to originate business, that is, to bring cases before it for trial. In his capacity as prosecuting officer, there- fore, the judge-advocate is not subject to its control, and " will properly be left by the court to introduce the testimony in the form and order deemed by him to be the most advantageous and, generally, to bring on cases for trial and conduct their prosecution according to his own judgment." ' Duties of the Judge-Advocate Previous to the Trial. — The principal duty of the judge-advocate prior to the meeting of the court is to prepare his case or cases for trial. This includes the summoning of the witnesses " for the prosecution and defense, and the preliminary examination of the former with a view to a regular and orderly presentation of the case in behalf of the United States. If other witnesses than those named in the charges and specifications are material and necessary, they are summoned by the judge-advocate ; the names of the witnesses desired by the accused are also obtained and formal summons are issued for their appearance.' The re gula - tions r es trict the po wer of the judge-advocate in this ^respect, to, the extent of forbidding him to summon witnesses, at the expense of, ±ha Government, without the order of the court, u.nlesssatisfi.94.Jiiati,- their testimony is maiterlarand "Ketie^safy . * ' Dig. J. A. Gen., 458, par. 11. Strictly, communications from the convening author- ity to the court as such, (and vice versa,) should be made to (and by) the president -ts its organ ; communications relating to the conduct of the prosecution to (and by) the judge ■advocate. lUd., 318, par. 17. ' The attendance of witnesses is obtained as to military persons by military orders issued by competent authority; as to civilians, by the issue of a writ of subpoena. (For forms of this writ, see Manual for Courts-martial, pp. 138, 139.) The latter form of process, being inapplicable to the case, is never issued to a military person. A judge-advocate is authorized to subpoena witnesses only for testifying in court ; he cannot summon a witness to appear before himself for preliminary examination. For this purpose he must procure an order to be issued by the proper commander. Dig. J. A. Gen., p. 462, par. 31. A judge-advocate has no authority to employ a civil official or private civilian to serve ■subpoenas if by so doing the United States will be subjected to a claim for compensation. Md., p. 463, par. 33. ' For a discussion of this subject, see the chaptM entitled Evidbncb. * Paragraph 922, Army Regulations of 1895. Except where their testimony will be merely cumulative,* and will clearly add noth- ing whatever to the strength of the defense (see Ninety-third Article), the accused is in * For a definition of the term " cumulative testimony," see the chapter entitled Evidence. 36 MILITARY LAW. Amendment and Modification of Charges. — The case which it is the duty of the judge-advocate to prepare for trial is that referred to him by the con- vening authority.' Where, therefore, cliarges, already lormally preferred, are transmitted to him for prosecution, lie should not assume to modify them in material particulars in the absence of authority from the convening officer. W hile he may ordinarily cor rect obvious mistakes of form, o r patent or slig ht e rrors in names, date s, amounts, etc ., he cannot without such auth ority ^ / vaeiis sifMUmtml &m ' withdraw a charge or specification, or enter a nolle pr.osequi as to the same, or substitute a new and distinct charge for one transmitted to him for trial by the proper superior. ° Counsel for the Accused. — In addition to his duty as prosecuting officer in behalf of t lie United States, the 90 th Article of AYar provides that the judge-advocate " shall so far consider himsejf counsel for the prisener-as to object to any leading jpestiQrL-tQ_ahy of ike. witnesses, and.Jo-any_qjiestion general entitled to have any and all material witnesses summoned to testify in his behalf.* A prompt obedience to a summons is incumbent upon all witnesses; nor is a commanding- or superior oflBcer in general authorized to place any obstacles in the way of the prompt attendance, as a witness, of an inferior duly summoned or ordered to attend as such.f Where the judge-advocate has declined to summon a witness for the accused, for the reason that he is not " satisfied " (in the words of paragraph 923 of the Army Regulations, of 1895) that his testimony is " material and necessary to ihe ends of justice," the court may, in its discretion, direct him to be summoned. The court, however, will not in gen- eral properly sanction the summoning of a witness where it is not probable that his. attendance can be secured within a reasonable time and his deposition legally be taken pursuant to the Ninety-first Article of War. Dig. J. A. Gen., 701, par. 9. In military law an accused party cannot be deemed to be entitled to have a witness- summoned from a distance whose military or administrative duties are of such a char- acter that they cannot be left without serious prejudice to the public interests. Article VI of the amendments to the Constitution, declaring that the accused shall be entitled "to be confronted with the witnesses against him," applies only to cases before the United States courts. Thus where the offense charged is not capital, and a deposition may there-, fore legally be taken under the Ninety-first Article of War, the Secretary of War will not in general authorize the personal attendance at the place of trial of a witness whose office or duty makes it necessary or most important that he should remain elsewhere. IMd., 7.")'3, par. 10. An accused party at a military trial can rarely be entitled to demand the attendance, as a witness, of a cLiief of a staff corps, much less that of thfi President or the Secretary of War, especially as some minor official can almost invariably furnish the desired facts If, however, the testimony of one of tlie=e officials be found to be necessary or most del sirable, and the same cannot legally he taken by deposition, the court, if convpned at a distance, may properly be adjourned to Washington or other convenient point, in order that ihe witness may be enabled to attend without detriment to the puljlic interests Ibid., par. 11. 'Dig. J. A. Gen., 457, par. 9. See, also, the title "Counsel for the Accused." post. 5 Ibid., 458, par. 10. J The judge-advocate is hot infrequently directed to prepare or reframe charges ;§ when such a duty is imposed upon him the judge-advocate, acting as the agent of the convening authority and not in his capacitv as an officer of the court is to be guided by such instructions as have been given him by that officer. ' * See G. C. M O 21, 54. War Department. 1872; G. C. M. O. 128, Headquarters of Armv 1876 t See G. C. SI. O. 18. Departments of the Platte. 1877. *uqu»rLers oi Army, io,t.. tSee G. O. 64. Dept. o£ the Cnmheriand, 1867: do. !8, id., 1868: do «5 Dent of the South 1874' 6^0. Bl O. 36, 42, Dept of the Platte, 1877; do. 13, id., xm\ do. 48, Mil. Divfot PaSfflo & Dept. of i'Dig. j. A. Gen., 458, par. 10. THE COMPOSITION OF COUBTS-MABTIAL. 37 to the prisoner, the ans_w^rJo__'H^ch might tend^to criminate himself.'" The duty of the judge-advocate toward the accused should not be regarded as confined to the limited province of "counsel for the prisoner" as the same is defined in the 90th Article of War. "Where the accused is ignorant and inexperienced and without counsel — especially where he is an enlisted man — rhe judge-advocate should take care that he does not suffer upon the trial from any ignorance or misconception of his legal rights, and has full opportunity to interpose such plea and make such defense as may best bring out the facts, the merits, or the extenuating circumstances of his case." This duty is more especially incumbent on the judge-advocate in cases where the prisoner has not the aid of professional counsel to direct him, which generally happens in the trials of private soldiers, who, wanting all advantages of education or opportunities of mental improvement, must stand greatly in need of advice in such trying circumstances as are sufficient to overwhelm the acutesb intellect, and embarrass or suspend the powers of .the most cultivated understanding. It is certainly not to be understood that in discharging this office, which is prescribed solely by justice and humanity, the judge-advocate should in the strictest sense consider himself as bound to the duty of a counsel, in exerting his ingenuity to defend the prisoner at all hazards against those charges which, in his capacity as prose- cutor, he is, on the other hand, bound to urge and sustain by proof; for, understood to this extent, the one duty is utterly inconsistent with the other.' All that is required is that, in the same manner as in the civil courts of criminal jurisdiction the judges are understood to be counsel for the person accused, the judge-advocate in courts-martial shall do justice to the cause of the prisoner, by giving full weight to every circumstance or argument in his- favor; shall bring the same fairly and completely into the view of the court; shall suggest the supplying of all omissions in the leading of exculpatory evidence; shall engross in the written proceedings all matters which, either directly or by presumption, tend to the prisoner's defense; and, finally, shall not avail himself of any advantage which superior knowledge or ability or his influence with the court may give him in enforcing the conviction, rather than' the acquittal, of the person accused.'' Opinioas in Matters of Law. — The Articles of "Wi ij are si lent on the subject of the duty o f the judge-advocate to assist the court with his op inion or ac Tvice as to matters of la w arisin g during the course of the trial. It is ' Ninetieth Article of War. ' Dig- J. A. Gen., 458, par. 13. See, also, note ipost. 5 Macomb. § 176. * IMd. Tlie jn^ge-advocate should also advise the accused, especially when ignorant and un!)ssisted by counsel, of his rights in defense— particularly of his right, if it exists in the case, to plead the statute of limitations. »nd of liis right to testify in his own behalf. A failure to do so, however, will not affect the legal validity of the proceedings; though if it appear that the accused was actually ignorant of these riglits, the omission may be ground for a mitigation of sentence. Dig. J. A. Gen., 462, par. 28. S8 MILITARY LAW. \ sbrictly the proper practice for a jadge-advocate not to give his opinion upo n -' ' ^ point of law arising upon a militarj trial unless the sanie may b e req uired byjthe^ cpurtT This practice, however, is often departed from, and the ■opinions of judge-advocates, suitably tendered, are in general received and entertained by the court without objection, whether or not formally called for. But where the court does object to the giving of an opinion by the judge-advocate, he is not authorized to attempt to give it, and of course not authorized to enter it upon the record.' Counsel to Assist Judge-Advocate. — In cases of exceptional difficulty and public importance civil counsel were formerly not unfrequently retained to. assist the judge-advocate. Since the creation, however, of the office of Judge-advocate General of the Army, and of the corps of j adge-advocates, by the Act of July 17, 1862, such instances have been of the rarest occur- rence.'' Counsel for the Accused. — An officer or so ldier put jipon trial before a court-martial is not entitled as of rjght to have counsel present with him to / i-assist hi m in his defen sej_but the jJlivilege _is one_which is almost invariably '^ concededj' and where it is unreasonably refused, such refusal mayconititute ground for the disapproval of the proceedings. A court-martial, however, is not required to delay an unreasonable time to enable an accused to provide himself with counsel.* ' Dig. J. A. Gen., 4o9, par. 15. Whether the fact that the opinion was offered and objected to by the court shall be entered upon the record, is a matter for the court alone to decide. It is, however, certainly the better practice that all the proceedings, even those that are irregular, which transpire in connection with the trial, should be set out In the record for the inspection of the reviewing authority. Ibid. It " is understood to be his duty to explain auy doubts which may arise in the course of their deliberations, and to prevent any irregularities or deviations from the regular form of proceeding. For it is to be observed that, in all matters touching the trials of crimes by courts-martial, wherever the military law is silent the rules of the common law, as generally recognized and enforced throughout the Union, must of necessity be resorted to." Mac >mb, § 174. See, also, Ives, 232; Benet 70; 1 Winthrop, 262 ; Kennedy, Duties of Judge-Advocates, 123 ; De Hart, 324-6 ; Tytler, 354, 5. = Dig. J. A. Gen., 311. Under the existing law, indeed, which is contained in Section 861 of the Revised Statutes, counsel could be employed (at the public expense) for this purpose only thrnusrh the Department of Justice upon the request or recommendation of the Secretary of War. Ibid. The detail of a commissioned officer for this purpose, though infrequent, is warranted by precedent, and is within the authority of the convening officer in cases in which, in his opinion, such a course is either necessary or desirable. ' Compare on this subject. People vs. Daniell, 6 Lansing, 44; People «s. Van Allen, 55 y York, 31. The restriction upon the admission of counsel for the accused in court- martial trials is said by Clode to have had its origin in the circumstance that military tribunals, as such, were without power to award the payment of legal expenses. It may also be traced to the inherent power of courts of lirai ed jurisdiction to prescribe rules for their own procedure. Clode, Military Forces, 169; ibid.. Military Law, 120; see, also. Collier m. Hicks, B. & Adol., 668; Tytler, 250 In the British service the appearance of counsel, in behalf of both prosecution and defense, is regulated by Section l29 of the Army Act of 1881, subject, however, to the provisions of the Rules of Procedure in respect to the rights and duties of counsel.* ■* Dig. J. A. Gen., 311, par. 1. While reasonable facilities for procuring such counsel * See Rules 85-98, Rules of Procedure; Man. of Mil. Law., 639-64S. See, also, pp. 56, 472, and 638-648, ibid. THE COMPOSITION OF COUUTS-MARTIAL. 39 Counsel for Enlisted Men. — It is required by the Army Regulations that \ the commanding of&cer of a jgost at wliich a general court-martial is con- vened shall, " at the request of any prisoner who is to be arraigned, detail as counseTforh is defense a suitable officer, one not directly responsible for the discipTine of an organization serving thereat, no ragting as a summary court. If there be no such officer available, the fact will be reported to the appoint- ing authority for action. An officer so detailed should perform such duties as usually devolve upon counsel for defendant before civil courts in criminal cases. As such counsel he should guard the interests of the prisoner by all honorable and legitimate means known to the law.' as be may desire sliould be afforded an accused, bis claim must be regarded as subordinate to tbe interests of the service. Thus where an accused officer applied to the department commander, who had convened the court, to authorize a particular officer whom he desired as counsel to act in that capacity, and this officer could not at the time be spared from his regular duties without material prejudice to the public interests, held that the commander was justified in denying the application, and further that the validity of the subsequent proceedings and sentence in the case was not affected by such denial. Ibid., 313, par. 3. An application by an accused officer to be furnished, at the expense of the United States, with civil counsel to defend him on his trial by court-martial remarked upon as unprecedented and not to be entertained. Par. 968, A. R., 1895, relates to no such a case. No authority exists for the payment by the United States of civil counsel employed by an officer to defend him on his trial by court-martial. Ibid., 313, par. 6. I Paragraph 936, Army Regulations of 1895._ Held that Q. 0. 39 of 1890, providing for the detail, by the commander of a post at which a general court-martial is ordered to sit, of a suitable officer of his command to act as counsel for prisoners to be arraigned, if requested by them, was not to be construed as sanctioning the detail or voluntary appearance of a post commander himself in such capacity at his own post. Ibid., 313, par. 5. The phrase ' ' one not directly responsible for the discipline of an organization serving thereat " has been given an authoritative interpretation in Circular No. 8, A. G. O. of 1894 : "No officer directly responsible for the discipline of an organization or organizations under his command — as the commanding officer of a post, band, com- pany, battalion, squadron, or regiment — nor the trial officer of a summary court, will be regarded as a ' suitable ' officer under the provisions of General Orders No. 89, 1890, A. G. 0. , for this duty at the post where he is stationed " Par. Ill, Circular No. 8, A. G. 0. , 1894. See, also, Circular No. 5, A. G. 0., 1894, and Manual for Courts-martial, p. 35. , The Manual for Courts-martial, which is the authoritative guide for the Army in court-martial practice, prescribes that an officer detailed as counsel for a soldier before a court-martial should guard the interests of the accused by all honorable and legitimate means known to the law. Unless this is understood to be subject to an important modification it will be misleading. The modification is that he must not do anything inconsistent with military relations. It is necessary that discipline should be maintained. Discipline is founded on respect for authority. The position of counsel for the accused does not give an officer the right to disregard the obligations arising out of this relation. The tendency to go too far in assimilating the court-martial trial to the ordinary criminal trial is noticeable and should not be encouraged. It would be decidedly harmful, and unless the Manual is understood as indicated it would be a step in the wrong direction. It is therefore the duty of an officer assigned as counsel for an accused person to conduct the defense not only with a due regard for authority, but within the well-understood limits prescribed, in the interest of discipline, by the established procedure of courts-martial. It can never be necessary, and it certainly will never be justifiable, for the counsel for the accused to lay aside his obligation to respect authority, and his position will not give him immxinity if he does it.* _ (Judge- Advocate General.) * See, also, for a definition of the duties of an offlcer assigned as counsel, the paragrapll ^D page 38, ante, relating to the duty of the judge-advocate as counsel for the accused. 4:0 MILITARY LAW. r / The privilege of being represented, by counsel does not apply in cases tried by inferior courts.' "■ An accused, prior to arraignment, even if in close arrest, sbould be allowed to have interviews with such counsel, military or civil, as he may have selected. So, his counsel should be permitted to have interviews with any accessible military person whom it may be proposed to use as a material witness, or whose knowledge of facts may be useful to the accused in pre- paring for trial." A,militaxy court.has_no„authority, (analogous to that sometjm^_exercised by civil_cpnTtejn criminal -cases)^ to .assign counsel to an accusedunprovided with counsel. . Nor can such a court excuse one of its members to_jnable him to act as counsel for an accused.' EEPORXEBS, IlfTERPRETEES, AND CLERKS. Reporter, How Appointed. — Section 1303 of the Revised Statutes pro- vides that " the judge-advocate of a military court shall have power to appoint a reporter, who shall record the proceedings of, and testimony taken before, such court, and may set down the same, in the first instance, in shorthand. The reporter shall, before entering upon his duty, be sworn or affirmed faithfully to perform the same." * The power conferred by this statute is vested exclusively in the " judge- advocate," and cannot be exercised by the court; it should be resorted to, however, only in an important case.' ' Manual for Courts-martial, 25, par. 1, note. ■' Dig. J. A. Geu., 312, par. 3. • Il)id. , par. 4. * Tbe statute does not indicate by whom the reporter shall be sworn. In practice ha is sworn by the judge-advocate ; a form of oath being prescribed in the Manual for Courts-martial. If the same party is employed as a reporter for more than one case, he should properly be sworn anew in each case. Wheu a reporter is employed under Section 1203, Revised Statutes, he shall be paid, upon the certificate of the judge-advocate, not to exceed $1 an hour for the time occupied in court by himself or a competent assistant necessarily employed for him by the judge- advocate, and lo cents per 100 words for the first and 5 cents per 100 words for each additional copy of tbe transcript of notes and of exhibits copied; and in case the court is held more than ten miles from the place of employment of himself and assistants they shall each be allowed mileage over the shortest usually traveled route at the rate of 8 cents per mile going to the place of holding the court, and $3 a day for expenses while necessarily kept by the judge advocate away from the place of employment. Reporters are employed by the judge-advocate and are paid by the Pay Department, at the rates herein named, upon the certificate of the j udge-advocate that the services charged for have been rendered. (Par. 1063, A. K. 1901.) The only authority for the employment of reporters for courts-martial is that contained in Section 1203, Revised Statutes, wbich authorizes the judsre-advocate of a military court to appoint a reporter for such court. In view of this statute, held that the aiipointment, by a judge-advocate on the staff of a department commander, of a person 'o act as reporter for all the courts to be convoned in the departinent, was in contravention of law and of no effect. Dig. J. A. Gen., 461, par 23. No person in the military or civil service of the Government can lawfully receive extra compensation for clerical duties performed fnr a military court. (Par. 960, A. R. 1895.) See, also, Manual for Courts-martial, pn. 25. 36. ' Par. 958, Army Regulations, 1895. The employment of a stenographic reporter, under Section 1203, Revised Statutes, is authorized for general courts only, and In cases THE COMPOSITION OF COURTS-MARTIAL. 41 Interpreters. — Interpreters to courts-martial are paid by the Pay Depart- ment upon the certificate of the judge-advocate that they were employed by order of the court. They will be allowed the pay and allowances of civilian witnesses.' Interpreters and reporters are officers or, strictly speaking, employees of the court, and should be sworn before entering upon the performance of their duties." Clerks. — There is no authority for the employment of a civilian clerk for a court-martial other than the "reporter" authorized by Sec. 1203, Eev. Sts., and referred to in par. 958 of the Army Eegulations of 1895. An enlisted man may be detailed as such clerk under par. 958. A court- martial, member of court, or judge-advocate cannot of course lawfully com- municate to a reporter or clerk the finding or sentence of the court by allowing him to record the same. Before proceeding to deliberate upon its finding, the court should require the reporter or clerk, if it has one, to withdraw. Bat the fact that the finding or sentence or both may have been made known to the reporter or clerk of a court-martial cannot affect the legal validity of its proceedings or sentence.' where the convening authority considers it necessary. The convening authority may also, when necessary, authori/.e the detail of an enlisted man to assist the judge-advocate of a general court in preparing the record. ' Par. 961, A. R. 1895. That a member of the court acted as interpreter on a trial Tidd an irregularity, but one which did not affect the legal validity of the proceedings. Dig. J. A. Gen., 454, par. 1. Where the charges against a private solaier were preferred by the captain of his company, who also acted not only as a prosecuting witness but as interpreter on the trial, lidd a grave irregularity which might well induce a disapproval of the proceedings and sentence unless it quite clearly appeared that no injustice Lad been done the accused.* Ibid., par. 3. ' For forms of oaths, see Manual for Courts-martial, p. 39. ' Dig. J. A. Gen., 864, par. 1. In view of the interpretation, by successive Attorneys- General, f of the term "other constant labor," employed in the Act of March 2, 1819, (the original of the provision of July 13, 1866,) as including clerical service, and of the con- tinued practice of the government in accord with such interpretation, held that enlisted men detailed as clerks of courts-martial might properly he regarded as entitled, for con- stant labor as such "of not less than ten days' duration," to the extra-duty pay of twenty cents per diem. But held, in view of the positive prohibition of Sec. 1766, Rev. Sts., that a soldier could not legally be allowed any additional compensation for such service further or other than such laborer's pay ; and this although at the time of acting as elel-k he was on leave of absence. Ibid., 404, par. 4 Held that a claim by an officer to be allowed extra compensation for services rendered by him as clerk to a general court-martial of which he was the junior member was wholly without sanction in usage, and moreover could not be allowed without a violation of Sec. 1763, Rev. Sts. Ibid., 264, par. 2. * That an important witness on a trial should not properly he permitted to interpret the testimony of another such witness is remarked in G. 0. M. O. 24, Dept. of Texas, 1875. t 2 Opin. Att.-Gen., 706; 3 ibid., 116; 4 ibid., 4S5; 10 iUd., 472. CHAPTER V. THE JURISDICTION OF COURTS-MARTIAL. Sources. — The jarisdiction of a court is it power to try a case.' Juris- diction is conferred, as to the State courts, by the common law, or by statutes of the State by whose authority they are created and in whose behalf they act ;" that of the several Federal courts is conferred by the Con- stitution, or by laws made in pursuance thereof. The peculiar jurisdiction exercised by courts-martial is conferred by the Articles of War, and by other enactments of Congress of similar character had in pursuance of the authority conferred upon that body by the Constitution to " make rules and regulations for the government of the land and naval forces." ' Military Jurisdiction. — Courts-martial, as has beea seen, are courts of limited jurisdiction, and as such their records must show affirmatively that they have authority to hear and determine cases coming before them for trial. The jurisdiction of courts-martial is not only statutory, but is also exclusively criminal in character, and such tribunals are entirely without power to entertain civil causes, or to take jurisdictioa over property or property interests of any kind, or to make or enforce decrees respecting its possession or owaership. Their jurisdiction is exclusive as to what are known as military offenses, that is, offenses created by the Articles of War, and by other enactments of Congress of similar character.* > Rliode Island m. Mass., 13 Pet., 657 ; Mo. vs. Lewis, 101 U. S., 33. « Ex parte Dollman, etc., 4 Cr., 75 ; Sheldon vs. Sill, 8 How., 441 ; Bos well vs. Otis, 9 How., 336 ; Rose vs. Himely, 4 Cr. 241. ' The court-martial having jurisdiction of the person of the accused and of the ofEense charged, and having acted within the scope of its lawful power, its decision and sentence cannot be reviewed or set aside by the civil courts by writ of habeas corpus or otherwise. Johnson vs. Sayre, 158 U. S., 109, 118; Dynes vs. Hoover, 20 How., 65, 83; Ex parte Reed, 100 U. S., 13; Ex parte Mason, 105 U. S., 696; Smith vs. Whitney, 116 U. S., 167, 177-179. * Courts-martial (though, within their scope and province, authoritative and inde- pendent tribunals) are bodies of exceptional and restricted powers and jurisdiction ; their cognizance being confined to the distinctive classes of offenses recognized by the military code. Their jurisdiction is criminal, their function being to assign, in proper cases, punishment ; they have no authority to adjudge damages for personal injiiries or private wrongs.* Dig. J. A. Gen., 331, par. 1 ; Ex parte Wilkins. 3 Peters. 309; Barrett vs. Crane, 16 Verm., 346; Brooks vs. Adams, It Pick., 441 ; Brooks vs. Davis, IT id., 148; Brooks vs. Daniels, 38 id., 498 ; Washburn vs. Phillips, 3 Met., 296 ; Smith vs. Shaw, 13 Johns., 357 ; Mills vs. Martin, 19 id., 7 ; In Matter of Wright, 34 How. Pr., 331 ; Duffield * See S Greenl. Ev., sees. 471, 476 ; United States v. Clark, 6 Otto, 40 ; Warden vs. Bailey, 4 Taunt., 78. 42 THS! JUBI8DIGTI0N OF OOURTS-MARTIAL. 43 Concurrent Jurisdiction. — From the nature and source of their respective jurisdictions, civil and military courts can never have concurrent jurisdiction in the strict sense of the term. The same act or omission, hovrever, may give rise to both a military and a civil trial, but the offense in each case is distinct and separate, one being created by the Articles of War and the other by the common law, or by statute in the State or district within whose territorial limits it was committed.' Classification. — The question of jurisdiction as respecting military tribunals may be regarded from several points of view, accordingly as it relates (1) to place, (2) to time, (3) to persons, or (4) to offenses. These ' aspects of the subject will be discussed in the order named. ^^^^"^^ — >1. Jurisdiction as to Place. — The jurisdiction of courts-martial, not j^ 3 being restricted in point of territorial operation, extends to every part of ?the territory of the United States and, as to military persons, covers all military offenses committed by them, whether within or beyond such terri- torial limits. In so far, therefore, as mere jurisdiction is concerned, it vs. Smith, 3 Sergt. & Rawle, 590 ; Bell vs. Tooley, 12 Iredell, 605 ; State vs. Stevens, 3 McCord, 33 ; Miller w. Seare, 2 VV. Black., 1141 ; 6 Opjns. Att.-Gen., 425. "A court-martial is a oo-irt of limited and special jurisdiction. It is called into existence, by force of express statute law, for a special purpose and to perform a par- ticular duty ; and when the object of its creation is accomplished it ceases to exist. ... If, in its proceedings or sentence, it transcends the limit of its jurisdiction, the members of the court and the oflBcer who executes its sentence are trespassers, and as such are an- swerable to the party injured, in damages, in the courts." 8 Greenl. Ev., sec. 470, Courts-martial are no part of the judiciary of the Uni.ted States, but simply instru- mentalities of the executive power. They are creatures of orders ; tlie power to convene them, as well as the power to act upon their proceedings, being an attribute of command. But, though transient and summary, their judgments, when rendered upon subjects within their limited jurisdiction, are as legal and valid as those of any other tribunals, nor are the same subject to be appealed from, set aside, or reviewed by the courts of the United States or of any State. Ibid., 313, par. 1. See, also, Dynes vs. Hoover, 30 Howard, 79 ; Ex parte Vallandigham, 1 Wallace, 343 ; Wales vs. Whitney, 114 U. 8., 564; Fugitive Slave Law Cases, 1 Blatch., 635; Tn, re Bogart, 3 Sawyer. 403, 409; Moore vs. Houston, 8 S. & R., 197; & parte Dunbar, 14 Mass., 893 ; Brown vs. Wadsworth, 15 Verm., 170 ; People vs. Van Allen, 55 N. Y., 31 ; Peraalt vs Rand, 10 Hun, 333 ; Ex parte Bright, 1 Utah, 148, 154 ; Moore vs. Bastard, 4 Taunt., 67 ; 6 Opins. Att.-Gfen., 415, 435. "No acts of military officers or tribunals, within the scope of their jurisdiction, can be revised, set aside, or punished, civilly or criminally, by a court of common law." Tyler vs. Pomeroy, 8 Allen, 484. Where a court-martial has jurisdiction, "its proceedings cannot be collaterallv impeached for any mere error or irregularity committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances." Ex parte Reed, 10 Otto, 13. ' A soldier, for example, assaults his superior offifer, the latter being, in the execution of his office, at a military post. The offense committed in this case constitutes a viola- tion of the 31st Article of War, over which a court-martial has exclusive jurisdiction. Were an enlisted man, however, to meet a military superior, under similar circumstances of duty, in a city or other, place without or beyond the limits of a military post, and to make a similar assault upon him, two separate offenses would result : one the civil offense of assault and battery, triable by a civil court having appropriate criminal jurisdiction, the other the military offense of striking a superior officer, under the 31st Article of War, which would be exclusively triable by court-martial. In neither case could an acquittal or conviction by one tribunal be pleaded in bar of a trial before the other, since the offenses are distinct in each case, though growing out of precisely the same act. 44: MILITARY LAW. matters not where an offense has been committed, so long as it is one over which some form of military tribunal has jarisdiction and is committed by a person amenable to military law.' Restriction upon the Convening Authority. — While, as has been seen, there is no limitation upon the territorial jurisdiction of military tribunals in so far as the place of commission of the offense is concerned, there are ■certain limitations in respect to the places at which courts-martial shall be convened by each of the several classes of persons empowered by law to con- stitute them. It may be said, in general, that a convening officer may con- vene a court-martial only at a place within the territorial limits of his "^command. Thus the President of the United States, the Secretary of War, and the Major-General commanding the Army may convene general courts- martial at any^ace wlEETh the'terriloHarjunsdiction of the United States; a department commander may similarly convene such courts at any place within his department, a division commander within his division, and so on. A garrison or summary court may only be convened at the post or garrison commanded by its convening officer. When the power to convene a court- martial appertains to a command, as distinguished from a place, — as to a regiment or an army in the field, for example, — it may be exercised wherever such command may lawfully be operating when the necessity for the trial arises. 2. Jurisdiction in Point of Time. — As courts-martial do not depend upon a state of war for their jurisdiction, save in respect to the crimes men- tioned in the 58th Article and to a limited number of offenses which pertain solely to a state of war, which do not exist in time of peace, and which cease to exist with the termination of hostilities or with the treaty of peace, the jurisdiction of military courts is only restricted in point of time by the operation of statutes of limitation. Statutes of Limitation. — Statutes of limitation, in criminal practice, are enactments which, if pleaded by an accused, operate to deprive the courts of power to try certain offenses when a period of time, expressly stated in the statute, has elapsed since their commission. These statutes are not prohibitory as to jurisdiction, but constitute matter of defense which, to become effective, should be pleaded and proved." " By pleading the general issue the accused is assumed to waive the right to plead the This double jurisdiction, or liability, is not peculiar to the practice of courts-martial, since it may be created by the criminal laws of the United States and those of one of the StatRi of the Union. A sale of liquor without a Federal license in a State in which the sale of liquor is prohibited by law may constitute a penal offense under the prohibitory law of the Slate and, at the same time, an offense against the revenue laws of the United ' Dis;, J. A Gen., 323, par. 3. " Manual for Courts-martial, p. 33; Dia^. J. A. Gen., 124, par. 13; In re Bogart, 3 Sawyer, 397: In re White, 17 Fed. Rep., 733; In re Davison, 21 ibid., 618; In re Zim- merman, 30 Fed. Rep., 176; Q. 0. 33 of 1893. And compare U. S. vs. Cooke, 17 Wallace, 168. THE JURISDIGTION OF COURTS-MARTIAL. 45 limibation by a special plea iu bar; but, under a plea of not guilty, the limitation may be taken advantage of by evidence showing that it has taken effect.'" Limitations at Military Law. — Two statutes of limitation form part of the military law of the United States. One of these, which is embodied in the 103d Article of War and applies to military offenses generally, provides that " no person shall be liable to be tried and punished by a general court- martial for any offense which appears to have been committed more than two years before the issuing of the order for such trial unless, by reason of having absented himself, or of some other manifest impediment, he shall not have been amenable to justice within that period." ' ' Dig. J. A. Gen., 134, par. 12. See, also, tlie article " Pleas iu Bar of Trial " in the chapter entitled The Incidents op the Trial. ' 103d Article of War. In view of tiiis' Article it is tlie duty of the Government to prosecute an offender within a reasonable time after the commission of an offense. Ibid., par. 11. By the absence referred to in the original Article, in the term " unless by reason of liaving absented himself, "is believed to be intended not necessarily an absence from the United States, but an absence byjeason of a "fleeing from justice," analogous to that specified in Section 1045, Revised Statutes, which has been held to mean leaving one's home, residence, or known abode within the district, or concealing one's self therein,^ ■with intent to avoid detection or punishment for the offense against the United States.* Thus heid that, in a case other than desertion, it was not essential for the prosecution to he prepared to prove that the accused had been beyond the territorial jurisdiction of the United States in order to save the case from the operation of the limitation. Ibid., p. 135, par. 14. A court-martial, in a case of an offense other than desertion, sustained a plea of the statute of limitations in bar of trial for the reason that the judge-advocate could produce 110 evidence to show that the accused was not within the territorial jurisdiction of the United States during his absence. Held that such showing was not necessary, and that it was sufficient that the absence should be any unauthorized absence from the military service whereby the absentee evades and for the time escapes trial. This construction of the, term "absented himself "in the Article corresponds to that placed on the words " fleeing from justice " as used in the statutes of the United States to designate those whom the statutes of limitation for the prosecution of crimes do not protect. Ibid., 135, par. 15. It is quite clear that any person who takes himself out of the jurisdiction, with tie intention of avoiding being brought to justice for a particular offense, can have no benefit of the limitation, at least when prosecuted for that offense iu a court of the United States. ... A person fleeing from the justice of his country is not supposed to have in mind the object of avoiding the process of a particular court, or the question whether he is amenable to the justice of the nation or of the State, or of both. Proof of a specific intent to avoid either could seldom be had, and to make it an essential requisite ■would defeat the whole object of the provision in question. Streep vs. United States, 160 U. S., 138; United States m. Smith, 4 Day, 131, 135; Eoberts vs. Reilly, 116 U. S., 80, 97. The mere fact that the offense was concealed by the accused and remained unknown to the military aithorities for more than two years constitutes no " impediment " in the sense of the Article. Dig. Opin. J. A. Gen., 133, par. 5. A mere allegation in a specification to the effect that the whereabouts of the offender was unknown to the military authorities during the interval of more than two years which had elapsed since the offense is not a good averment of a " manifest impediment" in the sense of the Article. Ibid., par. 6. The prohibition of the Article relates only to prosecutions before general courts-martial ; it does not apply to trials by inferior courts So, courts of inquiry may be convened without regard to the period which has elapsed since the date or dates of the act or acts * U. S. TO. O'Bi-ien, 8 Dillon, 381; U. S. to. White, 5 Cranch C. C, 38, 73; Gould & Tucker, Notes on •Xevised Statutes, 349. 4:6 MILITARY LAW. Statute of Limitations in Desertion. — The other, subsequently enacted, applies to the offense of desertion in time of peace only, and provides that " no person shall be tried or punished by a court-martial for desertion in time of peace and not in the face of an enemy, committed more than two years before the arraignment of such person for such ofEense, unless he shall meanwhile have absented himself from the United States, in which case the/" time of his absence shall be excluded in computing the period of the limitakf-' tion: provided that said limitation shall not begin until the end of th^ term for which said person was mustered into the service." ' \ 3. Jurisdiction as to Persons. — Amenability in General. — As the ame- \ nability of an individual to military law involves the temporary surrender of a part of his civil rights, which are placed in abeyance during the period of his military service, and, in addition, the voluntary acceptance of certain obligations to which citizens, as such, are not subject, it follows that no person can be subjected to military jurisdiction without his consent as evidenced by his voluntary entrance to the military service, nor, save in a limited number of cases presently to be explained, can he be made amenable to such jurisdiction without the express authority of law. For the reasons thus stated, military laws are always strictly construed as to those clauses which are calculated to subject to their operation individuals who are in no way connected with the military establishment. To What Persons Applicable. — Military law is, in general, applicable to military persons alone. The following classes of persons become subject to military jurisdiction by their voluntary entry into the military service either by enlistment or appointment: (a) the officers and enlisted men of the regular and volunteer forces;" (J) the militia when called into active service by the President to execute the laws of the IJnion, to suppress insurrections, or to repel invasions.^ In addition to the classes above named, which con- stitute the military establishment of the United States, Congress has, by several statutes, subjected other classes of persons to military jurisdiction, but under conditions, as will presently be seen, which operate to create a doubt as to the validity of the enactments in question.* Under this head fall : (c) certain civilians in time of war;' (d) the inmates of the Soldiers' Home" and («) of the several branches of the National Home for Disabled Volunteer Soldiers.' These will be discassed in the order named. to be investigated.* Nor does tbe rule of limitation apply to the hearing of complaints by regimental courts under Article 30. Ihid., 124, par. 10. ' Act of April 11, 1890 (26 Stat, at Large, 54). » Sections 1094 and 1343. Revised Statutes of the United States; 64th Article of War 3 See. 1644, ibid. ; 64th Article of War. * See note 6, post. ' 45th, 46th, and 68d Articles of War; Sec. 1343, Eev. Stat. U. S. « Sec. 4824, Rev. Stat. "< Sec. 4835, ihid. ; but see note 3, page 54, post. Sections 4834 and 4835 have never l.€en given effect, presumably because they have been regarded as unconstitutional. * See 6 Opin. Att.-Gen., 239. THE JUBI8DIGTI0N OF COURTS-MARTIAL. 47 a. The Regular and Volunteer Forces of the United States.- —These con- stitute a part of the military establishment of the United States and are raised in accordance with statutes enacted by Congress in pursuance of the power conferred upon that body to raise and support armies. The only distinction between these two descriptions of military force is that the regular forces, composed of the officers and enlisted men of the line of the Army and of the scYcral staff corps,' including the officers and enlisted men on the retired list, constitute the permanent military establishment; while the volunteer forces,. though on precisely the same footing as the regular army in respect to their recruitment and the appointment and selection of officers, are raised for limited periods of time, at the expiration of which they cease to exist.' 5. The Militia. — The militia of the United States is a portion of its constitutional military force, and is composed of all able-bodied male citizens of the respective States between the ages of eighteen and forty-five years who are resident therein and are not exempted by statute from the per- formance of military duty." The able-bodied male citizens who, by enroll- ment under the statutes,' are thus made liable to military service constitute the enrolled militia j ' the organized or embodied militia is composed of such ' The volunteer force during the late war was not a part of the militia, but of the Army of the United States. Though assimilated to the militia in some respects, as, for example, in the mode of original appointment of regimental and company officers, it was as distinct in law from the militia as was the so-called "regular" contingent of the Army.* Volunteer oiEcers, once mustered into the service of the United States, and while they remained in that service, did not differ substantially from regular officers in their status, rights, or otherwise. Their tenure of oflBce was indeed briefer; this, how- ever, was not a material legal distinction, since the term of regular officers was also in some cases limited by statute to a definite period, as the duration of the existing war. '■■ Exemptions may be either statutory or for disability. Statutory exemptions may be created by enactments of Congress, or by those of the legislatures of the several States, and are subject to statutory revocation at the discretion of the legislative body which en- acted them. Com. »«. Bird, 12 Mass., 443. The burden of proof that the statutory con- ditions of exemption exist rests upon the claimant. Com. ««. Smith, 13 Mass., 316; Thayer vs. Stacy, 3 Pick., 506 ; Lees vs. ChilSs, 17 Mass., 351 ; Twombly vs. Pinkham, 3 N. H., "70 ; Brush vs. Bogardus, 8 Johns., 157; Littlefield vs. Leland, 8 Me., 185; Irish vs. Mattison, 15 Vt., 381. Exemptions for disability are based upon the words of the Act of May 8, 1792, (1 Stat, at Large, 171,) which declare the militia to be composed of all " able-bodied male persons " between the ages of eighteen and forty-five. All males within the limits of age therein prescribed are presumed to be physically competent to perform military duty, and the burden of proving the contrary rests upon the person claiming exemption. Hume vs. Vance, 7 Me., 266; Darling ®«. Bowen, 10 Vt., 147 ; Warner vs. Stockwell 9Vt., 9. When the fact of physical disability has been established as a qualifying cause, the con- sequent exemption extends to such duties only as one having such disability is unable to perform. Smith, Petitioner, 3 Pick. Mass., 386. ' Act of May 8, 1792, (1 Stat, at Large, 271;) Sections 1625, 1637, Revised Statutes. "Gale**. Currier, 4 N, H. 169; Thorn vs. Case, 21 Me., 393; Hill to. Turner, 18 Me., 413.- By far the greater portion of the militia of the States has never been enrolled or organized ; the Act of May 8, 1792, (Section 1625, Rev. Stat.,) requires the militia to be enrolled, but that statute has never been fully carried into effect, and it may be doubted whether it is within the power of the Federal Government to require such enrollment on the part of the several States. The militia are of, or belong to, the States. They are State military forces, that may be called into the active service of the United States, and * As illustratinf^ the distinction made in Sec. 8, Art. I, of the Constitution, between the Afmy and the militia, and indicating the status of the voluiiteers, during the late war, as a part of the former, see Kerr vs. Jones, 19 Ind., 351; Wantlan v.i. White, id., 471; In the Matter of Kimhall, 9 Law Rep., 603; Burroughs vs. Peyton, 16 Grat., 483, 485. 4^8 MILITARY LAW. portions of the enrolled militia as have been organized by the several States into companies, battalions, regiments, and other tactical bodies for purposes of instruction and discipline. It was not the intention of the framers of the Constitution to vest the entire control of the militia in the Federal Government, but to reserve to the several States an efficient participation in its management and, by the appointment of its officers, to maintain such control over its organization and discipline as would be calculated, in time of peace, to give it the char- acter of a State as distinguished from a National militia. These objects were accomplished by clauses in the Constitution conferring upon Congress the power to provide for its armament, to prescribe its tactical organization, and to secure uniformity in drill and military instruction;' reserving to the several States the power to appoint its officers and to control its organiza- tion, discipline," and training in accordance with the methods prescribed by Congress.' Active Service of the Militia. — It is thus seen that the militia of the several States, considered as a military force, may be i-egarded from two points of view: (1) as a military force belonging to the State of which its members are citizens; (3) as a portion of the constitutional military force of the United States. It may therefore, in a proper contingency, be called into active service by either State or Federal authority. The power to call the militia into the service of the State is vested in some department of its government, usually in the governor, who is ex officio the commander-in- chief of its military forces. The corresponding power to call a portion of the militia into the military service of the United States is vested, by Congressional enactment, in the President, the constitutional commander- in-chief of its military forces." The Constitution itself prescribes the purposes' for which the militia may be called out and, by an express mention of those purposes, restricts its which the United States may make provision for the foiin of the organization of, and for which it may prescribe a uniform system of drill or discipline and a uniform armament and equipment ; but they are not primarily military iorces of the United States in the sense that the regular and volunteer forces are a part of such military forces. They are a State militia, any part of wbich may become a part of the military forces of the United States when called by the President into its military service. J. A. G. ' By the Constitution of the United States, the power to determine who shall compose the militia is vested in Congress; and as it has been exercised by Congress, a State legislature cannot constitutionally provide for the enrollment of any other persons in the militia. Opin. of Justices, 14 Gray (Mass.), 193. ' The term " discipline " as used in Art. I, Sec. 8, of the Constitution, relates to drill merely, and not to military discipline, in the sense in which that term is now used ; the control of the discipline, properly speaking, of the militia in time of peace being vested in t!ie several States. See, also, Ditj. J. A. Gen., 330, par. 9, 3 Com. TO. Thaxter, 11 Mass., 386; Com. to. Allen, 16 Mass., 523. ■* The President has no original authority over the militia by right of his ofHce. He can only call them out when Congress provides for his doing so as the agent of the United States for such purpose. When the call is complied with, the militia becomes national militia, and he becomes their commander-in-chief. Dig. Opin. J. A. Gen., 519, par. 2. See also Sections 1643-1656, 5397-5299, Revised Statutes. 5 Article I, Section 8, CI. 15. THE JUB.I8DI0TI0N OF COURTS-MARTIAL. 4-9 employment to the specific uses named; i.e., to "execute the laws of the Union, suppress insurrections, and repel invasions." The period of service of the militia thus called into active service is restricted by statute to a term not exceeding nine months in duration.' Emergency, ly Whom Determined. — The question of determining whether an emergency exists justifying the calling forth of the militia or any por- tion of the same," the authority to whom the call shall be addressed — •whether to the governor of a State or to the commanding officers of the militia itself, — and all questions as to the strength aud composition of the several quotas or contingents to be furnished, and the State or States which are to furnish them, are matters within the exclusive discretion of the Presi- dent, as the commander-in-chief of the Army and Navy of the United States." ' Section 1648, Revised Statutes. Tliere is no corresponding limitation upon tlie power of the States in respect to the length of time during which their militia may be employed in active service. See, also, note 2, p. 51, post. 2 The Act o£ February 28, 1895, (1 Stat. L., 424,) authorizing the President under certain circumstances to calloutthe militia, is constitutional, and the President is the final judge of the emergency justifying such call. This construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the Act of Congress. The power itself is to he exercised upon sudden emergencies, upon great occasions of State, and under circumstances which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. The service is a military service, and the command of a military nature ; and in such case every delay and every obstacle to an eflBcient and immediate compliance necessarily tend to jeopard the public interests. Martin vs. Mott, 12 Wheat., 19, 30. Where a power is confided to the President by law, the presumption is that in the exercise of that power he has pursued the law. The existence of an exigency justifying the calling out of the militia is not traversable and need not be averred. It is not necessary to set forth the orders of the President ; it is sufficient to state that the call of the governor for the militia was in obedience to them. For disobedience to a call made by a governor for the militia in pursuance of the orders of the President, a citizen is liable to be tried by a court-martial organized under the laws of the United States. Ibid., 33. Sanderheyden vs. Young, 11 Johns. (N. Y.), 150. ' The manner of calling out of the militia by the President under the Act of 1795 (See. 1642, R. S.) is indicated by the Supreme Court in the leading case of Houston vs. Moore,* where it is observed that " the President's orders may be given to the chief executive magistrate of the St te, or to any militia officer he may think proper." The call would ordinarily be addressed to the governor, who, in most of the States, is made commander-incliief of the active militia of the State. A further form, indeed, of calling out the militia, viz., by a conscription, was authorized during the late war by the Act of July 17, 1862. Dig. j'. A. Gen., 519, par. 1. The calling fortli of the militia into tlje United States service is an administrative function, a ministerial act, in which the Secretary of War may issue the necessary orders as the organ of the Executive, and his act is the act of the President. Ibid., par. 3. In the exercise of its constitutional power "to provide for calling forth the militia '' and "to provide for organizing " the same, etc.. Congress has made no distinction be- tween any different portions of this force, or recognized any such portion as the " national guard." The law relating to the subject, Revise4 Statutes, title 16, Sections 1625, 1643, etc., contemplates but a single integral body as constituting the militia and as liable to be called out. Under the existing law, the " national guar.l " of a State cannot legally be called cut as such. Upon a call, the governor may indeed order them out, as being organized and available, so far as they will go to make up the number of the militia required. Ibid., p. 520, par. 7. The Pnited States statutes take no notice of "national guard "as such. If called * 5 Wheaton, 1 (1880). 50 MILITAET LAW. How Called into Service. — It has been seen that the order of the President calling forth any part of the militia ' under the several Acts of Congress ' authorizing its embodiment may be addressed to the governor of the State or to the commanding oflB.cers of particular organizations of the militia, as he may think proper.' To make this power efEective it must be coupled with authority to compel obedience to the President's command. To this end, therefore, the statutes above referred to make a failure to appear at the appointed rendezvous, on the part of an individual member of the militia, a military offense, to which an appropriate penalty is attached, and over which a court-martial convened by the authority of the United States, or that of the State to which the militia force of the ofEender belongs, is given concurrent jurisdiction.' out, it is not ns '• national giiaid," but as militia; and when so called forth or included in a call, it must be governed by the existing laws providing for the organization, discipliue, etc., of the militia. Dig. J. A Gen., 520, par. 8. The "national guard," so called, being merely militiii, cannot (where not called forth) be "supported" or "maintained" by Congress, which is authorized by the Constitution to "support" and "niainlain" the Army and Nuvy only. So officers of the national guard cannot be commissioned by the President without a violation of the Constitution, which " reserves the appointment of militia officersto the States respectively." Ibid., par. 10. ' Houston vs. Moore, 5 Wheatou, 1 ; see, also, note 3, p. 49, ante. 2 Acts of Feb. 28, 1795, (1 Slat, at Large, 424,) April 8, 1814, (3 ibid., 134.) and July 17, 1863, (12 ibid., 594.) The maimer of the calling out of the mililiii by the President under the Act of 1795 (Sec. 1642, Rev. Sts.)is indicated by the Supreme Court in the leading case of Houston vs. Moore,* where it is observed that " the President's orders may be given to the chief executive magistnite of the State or to an}' militia officer he may think ijroper." The call would ordinarily be addnssed to the governor, who in most of the States is made commander-in-chief of the active militia of the State. A further form indeed of calling out the militia, viz., by a consciiption, was authorized during the late war by the Act of July 17, 1863. Dig. J. A. Gen., 519, par. 1. The President has no original authority over the militia by right of his office. He can only call them out wlien Congress provides for his doing so as the agent of the United States for such purpose. When the call is complied with, the militia becomes national militia, and lie becomes their commander-in chief. Tne law governing his exercise of power in calling out is found in Sees. 1642, 5297, 5298, and 5299, Eev. Sts. Jbid. par. 2. Tlie calling forth of the militia into the U. S. service is an administrative function, a ministerial act, in which the Secretary of War may issue the necessary orders as the organ of the Executive, and his act is the act of the President. Ibid., par. 3. It is not essential for a militia organization that there should be a formal muster-in to bring it into the actual service of the United States. The provision of the Act of 1862 relating to the muster-in of militia is directory only. Ibid., par. 4. The President, in calling out a force of militia, authorized the governor of a State to designate the particular militia of that State to be included in the call, and the gov- ernor Ihereuijon designated a certain regiment, and formally accept-ed its service. Held that in so doing he acted as the agent of the President, and that his acceptance was in law an acceptance by the President, and was equivalent to a muster-in of the regiment. Ibid. , par 5. ' Houston vs. Moore, 5 Wheaton, 1. Section 1658, Revised Statutes, prescribes that " courts-martial for the trial of militia shall be composed of militia officers only," The 77th Article of War contains a recognition of the same principle in the form of a pro- hibition to the effect that "officers of the regular army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces, except as provided in Article 78," "Held that the enactment applied also in principle to courts of inquiry con- vened in the militia, and that officers of the army could not, for purposes of instruction *5 Wheaton, 1. 1^ 1^^ C| THE JUBISDIOTION OF COURTS-MABTIAL. s: Wlien Subject to Military Law. — The militia whea called into active service by the President become subject to military law in the same manner and to the same extent as other troops of the United States.' The officers of the militia while "employed in conjunction with the regular or volunteer forces of the United States take rank next after all officers of like grade in said regular and volunteer forces, notwithstanding the commissions of such militia officers may be older than the commissions of the said officers of regular and volunteer forces of the United States." ^ ConsGriptii)n. — In addition to the methods above described, the United States may obtain the service of a portion of its militia by an exercise of the right of conscription. Resort was had to this method of obtaining a mili- tary force by the Acts of July 17, 1863, March 3, 1863, and February 10, 1864. These statutes provided for a national enrollment under the authority of the United States, for an apportionment of quotas in accordance there- with, and authorized such quotas to be obtained by conscription in the several districts into which each of the States was divided. Certain classes of persons were exempted from the operation of the conscription law, and drafted men were released from service upon the presentation of acceptable substitutes or by the payment of a sum specified in the statute.' c. Retainers to the Camp ; Camp-followers ; Civilian Employes. — The 63d Article of War makes two classes of persons amenable to military law who, unlike the classes already described, form no part of the military forces of the United States. By their voluntary presence, however, with an army in the field, in time of war, they may be regarded as having submitted them- selves, of their own free will, to the status in which they are placed by the operation of the statute. The Article arranges such persons into two classes: (1) Retainers to the camp, or camp-followers. Under this head fall or assistance, legally be detailed to be associated with militia officers as members of such courts." Dig. J. A. Gen., 521, par. 11. ' Section 1644, Revised Statutes of the United States; 64 Article of War. ' Oue bunched and twenly-fourtb Article of War. The Act of February 28, 1795, (1 Stat, at Large, 434,) fixed tbe period of service of the militia serving under a call of the President at three months ; this period was extended to six mnuths by the Act of April 8, 1814,|3 ibid., 134,) and to nine mouths by the Act of July 17,1862,(12 ibid., 594; Sec. 1648. Rev. Stat.) The period of service begins, in any case, on the date of the arrival of the militia at the place of rendezvous, on which date the obligations of the Uniled Stales in respect to pay, rations, clothing, and tlie like become operative. The Acts of Feb. 38. 1795, (1 Stal. at Large, 524,) and March 19, 1836, (5 ibid., 7,) authorize certain travel allowances, in behalf of members of the militia, during the period of assembly, prior to its enlry into the service, and during a corresponding period covering its dispersion after discharge. Where miliiia are called out and mustered into actual service, the stalf-offlcers of their commanding general cannot be considered as in any sense appointed by the Secre- tary of War or conimis*.ioned by the President. Nor are they given the corresponding rank of staff officers, of the regular army, but their rank remains the same as it was be- fore in the militia under the State laws. Dig. J. A. Gen., 522, par. 18. » See Acts of July 17, 1863, (12 Slat, at Large, 597), March 3, 1863, (12 i6«(i., 731,) and Frbruary 24, 1864, (18 ibid., 8.) See, also, U. S. vs. Scott, 3 Wallace, 642 ; U. S. iis. Murphy, ibid., 649. ^^ MILITARY LAW. sutlers, traders, correspondents, restaurant-keepers, oifieers' servants, and the like, whose employment, if any there be, is private, not public, in character. (2) Civilian employees of the United States, such as clerks, teamsters, guides, interpreters, telegraph-operators, and the like, whose services are necessary to the administration of the several staff departments.' It will be observed that the statute is restricted in its operation to persons accompanying armies in the field in time of war, and in the actual theatre of military operations." It has been held to apply, however, to employees and others accompanying troops engaged in extensive operations against hostile Indians; ° but it has never been construed to apply, even ia time of war, to any portions of the territory of the United States in which military operations were not being carried on against the public enemy. It is proper to observe that individuals of the class termed " retainers to the camp," such as officers' servants and the like, as well as camp-followers generally, have rarely been subjected to trial in our service. For breaches of discipline committed by them the punishment has generally been expulsion from the limits of the camp and dismissal from employment.* ' Dig. J. A. Gen., 75, par. 2. 2 Tlie discipline autborized by the Article has mainly been applied to the description of " persons serving with the mmics of the United States in the field," that is to say, civilians serving in a qnasi-\m\i\&ry capacity in connection with troops in time of war and on its theatre. Thus daring the late war civilians of the following classes were, in repeated cases, held amenable, under this Article, to the military jurisdiction, and subjected to trial and p\iniahmeiit by courts-martial : teamsters employed with wagon- trains, watchmen, laborers, and other employees of the quartermaster, subsistence, en- gineer, ordnance, provost-marshal, etc., departments; ambulance-drivers; telegraph- operators; interpreters; guides; paymasters' clerks ; veterinary surgeons; "contract" surgeons, nurses and hospital attendants; conductors and engineers of railroad-trains operated upon tlie theatre of war for military purposes ; officers and men employed on government transports, etc. But the mere fact of employment by the government pend- ing a general war does not render the civil employee so amenable. The employment must be in connection with the army in the field and on the theatre of hostilities. Dig. J. A. Gen., 75. par. 2. Held iJune, 1863) that the force employed in the " Ram Fleet" on western waters was properly a contingent of the array rather than of the navy, and accordingly that civilian commanders, pilots, and engineers employed upon such fleet during the war and before tlie enemy were persons serving with the armies in the field in the sense of this Article, and, therefore, amenable to trial by court-martial. Ibid., par. 3. See, also, ibid., par. 6. " Dig. J. A. Gen., 76, par. 4. ^ Ibid., 70, par. 1. By the sixth amendment of the Constitution civilians are guaranteed the right of trial by jury "in all criminal prosecutions." Thus in time of peace a court-martial cannot assume jurisdiction of an offense committed by a civilian without a violation of the Constitution. It is only under the exceptional circumstances of a time of war that civilians may, in certain situations, become amenable to trial by court-martial.* Dig. J. A. Gen., 325, par. 7. A civilian brought to trial before a court-martial cannot, by a plea of guilty or other form of legal assent, confer jurisdiction upon the court where no jurisdiction exists in law.f Jbid. * See in support of this view, Ex parte MilliKan, 4 Wallace, 121-123; Jones vs. Seward, -10 Barb 663- In Matter of Martin, 45 ibid., ]4B; Smith vs. Shaw, 12 Johns., 257, 265; In Matt"r of Stacy, 10 ibid ' SHu' Mills vs. Martin. 19 ibid., 22; Johnson vs. Jones, 44 III., 14-i, 1S5; GriCHn vs. Wilenx. 21 Ind. 3S6- in re Kemp, 18 Wis., 359; Ex parte McRoberts, 16 Iowa, 000; Antrim's Case, 5 Philad., 288; 3 Opin Alt -Ben 600; 13 ibid., 63. . . . f . v- ., t Compare People vs. Campbell, 4 Parker, 386; Shoemaker vs. Nesbit, 8 EawIe, 801 • Moore va, Houston, 3Sergt. & Rawle, 190; DufBeld i;s. Smith, ibid., 699; also One Hundred and Third Article. THE JURISDICTION OF COUBTS-MABTIAL. 53 d. Relieving, or Giving Intelligence to, the Enemy. — In addition to the classes already described, certain persons become subject to military juris- diction, and so to trial by court-martial, as a consequence of the commission of specific statutory offenses in time of war. Such are: (1) those who relieve the enemy with money, victuals, or ammunition, or knowingly harbor or protect him;' (2) whosoever holds correspondence with or gives intelli- gence to the enemy, either directly or indirectly ;° (3) spies." Spies are persons who, in disguise or under false pretenses, enter the lines of an army for the purpose of obtaining information for the use of the enemy. Acting as a spy, therefore, is an offense against the laws of war, and, as such, comes into existence only during the pendency of active military operations. It has already been seen that military laws are always strictly construed j that is, that no persons are made subject to them or brought within their operation save with the express authority of law. The word " whosoever " in Articles 45 and 46 and the words " all persons " * as used in Section 1343, Any statute by wliicli any class of civilians is attempted to be made amenable to trial by court-martial for offenses committed wbile civilians and in time of peace is necessarily unconstitutional. Dig. J. A. Gen., par, 8. ' 45th Artitle of War. ■' 46th Article of War. ' Section 1343, Revised Statutes.' While the 4otii aud 46lh Articles Appear to confer jurisdiction upon courts-martial to try and punish civilians for the offenses therein named, it may perhaps be' doubted whether, since the adoption of the Constitution, the conviction of a civilian under either Article -would be sustained. For the offenses thus set forth, however, civilian* would, in time of war, properly be triable by military commissions. * In view of the general term of description in this and the succeeding Article, "whosoever," it was held, during the late war, by the Judge- Advocate General and by the Secretary of War,* and has been held later by the Attorney-General, f that cmliana equally with military persons were amenable to trial aud punishment by court-martial under either Article.^: Dig. J. A. Gen., 40, par. 1. During the late war all inhabitants of insurrectionary States -were prima facie enemies- in the sense of this and the succeeding Article. § A citizen of an insurgent State who entered the U. S. military service became of course no longer an enemy. So Jield of a- lieutenant of the 1st E. Tenu. Cavalry. Ibid., 41. -par. 2. It is no less a relieving an enemy under this Article that the money, etc., furnished is exchanged for some commodity, as cotton, valuable to the other party. Ibid., par. 8. The act of "relieving the enemy " contemplated by this Article is distinguished from that of trading wi:h tLie enemy in violation of the laws of war ; the former being restricted to certain particular forms of relief, while the latter includes every ki-id of commercial intercourse not expressly authorized by the government. Ibid., par. 4. * See G. O. 67, War Dept., 1861; also the following Orders of that Department publishing and ap- provinef sentences of civilians tried and convicted under tliese Articles : G. O. 7G, 175, 250, 371, of 1863; do. 51 of 1804; G. C. M. 0. 106, 157, of 1864; do. 260, 671, of 1805. 1 13 Opins. Att -Gen., 472. t Admitting this construction to he warranted so far as relates to nets committed on the theatre of war or within a district, under martial law, it is to be noted that it is the effect of the leading adjudged cases to preclude the exercise of the military jurisdiction over this class of offenses when committed by civilians in places not under military government or martial law.' See, especially, Ex parte Milligan, 4 Wallace, l?l-li3; Jones to. Seward, 40 Barb., 563; also other cases cited in note to par. 7, p. 3^0, Dig. J. A. Gen. § See the opinion of the U. S. Rupveme Cnurt (frequently since reiterated in substance) as given by Grier, J., in the" Prize Casp-;," 8BIack, 666 (IBfiS); and by Cliasc, O. .1.. in thi? eases of M-s. Alezinde'-'a Cotton, and The Venice, 2 Wallace, 874, 418 (1864). In the latter case the Chief Justice observes : "The rule wliich declares that war makes all the citizens or subjects uf one belligerent enemies of the govern- ment and of all the citizens or subjects of the other applies equally to civil and to international wars." That an insurreotionarj; State was no less " enemy's country," though in the military occupatioa of the United States, with a military governor appointed by the President, see opinion by Field, J., in Coleman vs. Tennessee, 7 Otto, 516, 517. 54: MILITARY LAW. Eevised Statutes, have been held to inclade civilians as well as military persons, and to render them liable to the penalties therein imposed.' e. Inmates of the Soldiers^ Some and of the National Home for Disabled Volunteer Soldiers. — The inmates of the Soldiers' Home at Washington, D. C, are declared in Section 4834 of the Eevised Statutes " to be subject to the Eules and Articles of War in the same manner as soldiers of the Army " ; ' Section 4853, Eevised Statutes, declares that " all inmates of the jSTational Home for Disabled Volunteer Soldiers shall be subject to the Eules and Articles of War, and in the same manner as if they were in the Army. " ' Beginning of Period of Amenability. — Members of the military estab- lishment become amenable to the jurisdiction of courts-martial by their vol- untary entry into the military service. In the case of a commissioned officer of the regular or volunteer forces such amenability dates from the accept- ance of his appointment or commission,* or, in certain cases, from the date ' Held Ihat the offense of liolding correspondence with the enemy was completed by writing and putting in progress a letter to an inhabitant of an insurrectionary State during the late war ; it not being deemed essential to this offense that the letter should reach its destination.* Dig. J. A. Gen,, 42, par. 1. It is essential, however, to the offense of giving intelligence to the enemy that material information should actually be communicated to him ; the communication may be verbal, in writing, or by signals. Ibid., par. 2. ^ This section, however, is unconstitutional and a dead letter. These inmates are no part of the army, nor are they supported by the United States. They ire civilians occu- pying dwellings and sustained by funds held in trust for them. The territory of the Home being within the District of Columbia, and not having been exempted by Congress from the operation of the criminal laws of the District, the inmates are subject to those laws like any other residents. Dig. J. A. Gen., 705, par. 3. See, also, 744 ibid., par. 4, and 30 Opin. Alt. -Gen., 514. ' See uole 3, supra. In March, 1870, the president of the National Home for Dis- abled Volunteer Soldiers, a civilian, convened at the Home a court-martial composed of eight inmates of the same (all civilians, but designated by their former rank in the volunteer service, as "surgeon," " captain," "sergeant," and " private") for the trial, on charges of desertion and other offenses, of another (civilian) inmate. The court tried the accused, convicted him, and sentenced him to a term of imprisonment. The pro- ceedings and sentence were approved by the convening authority, who thereupon applied to the Secretary of War for an order designating a military prison for the con- finement of the party in execution of his sentence. Held (upon a reference of the case for opinion, iiy the Secretary of War) that the proceedings were unprecedented, un- authorized a5 «rajfoo, and void as a whole and in detail; that the provision in the Act establishing tlie Home that the inmates should be "subject to the rules and articles of war in the same manner as if they were in the army," even if it could be regarded aa constitutional, conveyed no authority for such a court as that constituted and composed in this case ; and that the sentence adjudged by the same could not legally be executed in the manner proposed or otherwise.f See, also, U. S. to. Murphy, 9 Fed. Rep. 26, in which it was held that inmates of this Home were not in the military service of the United States. Dig. J. A. Gen., 339, par. 15, ^ An appointment (or commission) in order to take effect at all must be accepted; but, when accepted, it takes effect as of and from its dale, i.e., the date on which it is completed by the signature of the appointing power, or that aa and from which it pur- ports ia terms to be operative.^ Dig. J. A. Gen,, 149, par. 1. * Compare Hensey's Case, 1 Burrow, 642; Stone's Cnse, 6 Term, 527; Samuel, 580. t It is inaccurately stated in the report of the case of Rennervs. Bennett, 31 Ohio St., 434, (December 1871,) that no inmate of the National Home had ever been subjected to a trial by oourt-mai-tlal. The instance referred to in the text, however, is the only one known of such a trial. X See Marbury vs. Madison, 1 Cranch, 137 ; United States vs. Bradley, 10 Peters, 304; United States vs. Le Baron, 19 How., 78; Montgomery vs. United States, 6 Ct. CI,, 97, THE JURISDICTION OF COURTS-MARTIAL. S5 of mnster-in' of the organization to ■which he belongs; in the case of an enlisted man the date of entry into service, and so of amenability to military law, is determined by his enlistment." If any portion of the militia be called into the service by the President, the amenability of its members to military law begins at the date of assembly named in the orders calling them forth. * In respect to persons conscribed, such amenability relates to and becomes operative from the date fixed in the statute authorizing the conscription.* BnUsfment. — The enlistment of a person in the military service of the United States is always a voluntary act, and consists, in substance, of the execution of a contract of enlistment, to which the United States and the enlisted man are parties." The transaction which, as will presently be seen, operates to efEect an important change of status, in so far as the enlisted * Dig J. A. Gen., 746, par. 4. ' Our law not defining enlistment, nor designating wlmt proceeding or proceedings shall or may constitute an enlisting, it may be said in general that any act or acts which indicate an undertaking, on the pai't of a person legally competent to do so, to render military service to the United States for the term required by the existing law, and an acceptance of such service on the part of the government, may ordinarily be regarded as legal evidence of a contract of enlistment between the parties, and as equivalent to a formal written agreement where uo such agreement has been had.* The 47th Article practically makes the receipt of pay by a parly as a soldier evidence of an enlist- ment on his part, estopping him from denying his military capacity when sought to be made amenable as a deserter. So held that the fact that a party, after hnving been armed and clothed as a soldier, had voluntarily rendered material service as such, although he had received no pay, constituted prima facie evidence that a legal contract of enlistment had been entered into between him and the United States. But enlistments in our army are now almost invariably evidenced by a formal writing and engagement under oath. Ibid , 384, pnr. 1. (See, also, as illustrating what constitutes a formal enlistment. Arti- cle 2 in the chapter entitled The Akticlbb of Wak. See, also, Ex parte Grimley, 137 U. S., 137.) * Houston vs. Moore, 1 Wheaton, 1 ; Martin ts. Mott, 12 ibid., 19, 30. Dig. J. A. Gen., 519, par. 1, 2, 3, 5 ; Military Laws of the United States, par. 1256, notes ; Sec. 1649, Revised Sliitules. * Section 13, Act of March 8, 1863 (13 Slat, at Large 733). ' See note 2, supra. A mere non-compliance with an army regulation, in making an enlislment, does not perse affect the validity of the contract. Thus the fact that the recruiting officer has knowingly enlisted a married man in derogation of par. 825 of the Regulations, or that a married man has procured himself to be enlisted under a repre- sentation that he was unmarried, does not affect the validity of the enlistment. In such a ca.se the President or the Secretary of War may, in his discretion, forthwith discharge the soldier under the 4th Article of War, or may hold him regularly to service for the term for which he has enlisted. f Dig. J. A. Gen., 383, par. 2. Sections 1U6-1118, Rev. Sis., providing that deserters, convicted felons, insane oi intoxicated persons, and certain minors shall not be enlisted, etc., are regarded as direc- tory only, and not as necessarily making void such enlistments, but as rendering them voidable merely at the option of the government.:]: In cases of such enlistments, except of course where the party, by reason of mental derangement or drunkenness, was willi- out the legal capacity to contract, the government may elect to hold the soldier to ser- * "On a charge of desertion, or other offense against military discipline it will be sufficient to prove that the accuspd received the pav or did the diitins of a soldier, without other proof of his en- listment or oath." 3 Greenl. Ev., | 4S3. And see Lebanon to. Heath, 47 N. Hamp., 359; Ex parte Anderson, 10 Iowa, 599. t In Ex parte Schmeid, 1 Dillon, 587, an application for a discharge from his enlistment made bv a soldier who had enlisted as an unmarried man, and based upon the ground that he had in tact a wife and child at the time and that his enlistment was therefore a nullit.y, was refused by the court on habeas corpus. See, also, In, re Grimley, 137 U. S., 14", and the similar ruling in Ferren's Case, 3 Benedict, 442. i See United States vs. Wyngall, B Hill, 16 ; United States vs. Cottingham, 1 Rob., 631 ; Commot>- wealth i;s. Baker, 5 Binney, 437 ; In Matter of Graham, 8 Jones' Law, 416 ; Cox vs. Gee, Winst. L. & E-. 131. 56 MILITARY LAW. man is concerned, is supported and reinforced by the solemn sanction of an oath of enlistment. The act of enlistment is thus seen to be contractual in character ; a violation of the contract, however, involves certain penal conse- quences which will elsewhere be described. " The effect of the act' of enlistment is to create a status, and the taking of the oath of enlistment is the pivotal fact which operates to change the status from that of citizen to that of soldier. By enlistment the citizen becomes a soldier. His rela- tions to the State and the public are changed. He acquires a new status with correlative rights and duties; and although he may violate his contract obligations, his status as a soldier is unchanged. He cannot of his own volition throw off the garment he has once put on, nor can he, the State not objecting, renounce his relations, and destroy the status, on the plea that, if he had disclosed truthfully the facts, the other party, the State, would not have entered the new relations with him, or permitted him to change his status. ' ' ' Termination of Liability. — The enlistment contract, thus entered into, may be terminated prior to the completion of the stipulated period by purchase ' of discharge, or by a discharge due to disability caused by wounds, injury, or disease contracted or incurred prior to, or during, the term of enlistment ; ' it may also be terminated at any time by a discharge issued at the discretion of the Secretary of "War, under the authority conferred by the 4th Article of War. It may be voided, by the same authority, at the instance of the parent or guardian, if entered into by a minor without his consent;* it is not voidable, however, at the instance of the enlisted man on the ground of minority, fraud, misrepresentation, or concealment, even though in point of age he was without legal capacity to contract.' An vice, subject to any application for discharge whicli may be addressed by himself or his parent, etc., either lo the Secretary of War or to a United States court..* ' Ex parte Grimley, 137 U. S., 137. = Section 4, Act of June, 16, 1890 (36 Stat, at Large, 157). ^ Fourth Article of War, paragraphs 154-157, Army Regulations of 1895. ■* See note 5, page 55, mite; Dig. .J. A. Gen., 387, par. 5, 6. ' It is well established that a soldier cannot himself avoid his contract of enlistment on the ground of minority, and abandon at pleasure the military service. His release on this ground can be obtained only on application of a parent or guardian entitled to his services, and wilhout whose consent he enlisted. f The application of the parent, whether made to the Secretary of War or, on habeas corpus, to a U. S. court, must be made before the soldier attains his majority and ratifies his contract. | Dig. J. A. G-en., 389, par. 13. The enlistment of a minor wilhout consent is not void, but is voidable merely, and only by the United States, which, on the fact of minority, elc, becoming linown, may waive the objection and adopt and continue the enlistment or terminate it at pleasure. If the minor deserts, he cannot take advantage of his own wrong and plead in defense, on trial, that the enlistment was void. 45 Nor can he do so if on enlistment he purposely * Under the existing law the authority to discharge soldiers on account of minority, etc., is not reserved to the Secretary of War alone, but the United States courts are empowered to inquire into the validity of enlistments on habeas corpus, and tliereupon to discharge enlisted persons in proper cases. .Ba; parte Grimley, 137 U. S., 137'; Ex parte Sahmeidi, i Dillon, 687; In re McDonald, Lowell, 106; McConologue's Case, 107 Mass., 154. This power cannot legally be exercised by a State court. Tarble's Case, 13 Wallace, 39". + In re Hearn, .32 Fed., 141 ; U. S. vs. Gibbon, 24 Fed., 135; In re Morrissey, 137 U. S., 157. t In re Dohrendorf, 40 Fed., 148; In re Spencer, id., 149. § In re Morrissey, 187 U. S., 157. THE JURISDICTION OF COURTS-MARTIAL. 57 eTifretment is normally terminated at the expiration of. the period of enlist- ment by a formal discharge, in writing, issuing from the proper military authority. ' The discharge certificate, the issue of which operates to put an end to the status of enlistment, is evidence not only of the fact of discharge, but of the character of serTice rendered by the soldier during the period of his engagement. Volunteers or militia may be discharged individually, as above described, or they may be mustered out in organized bodies, at the expiration of their term of service; " in either case a formal certificate of discharge is issued, concealed his age and the enlistment was therefore fraudulent. That a soldier was a minor at enlistment does not afiect his capacity to commit a military offense or the juris- diction over him of a court-martial. Wliere a minor deserts lie must abide, like any other soldier, tlie consequence of his crimiual act, viz., arrest, trial, and sentence if con- victed. And till the charge of desertion has been disposed of, or till the sentence has been undergone, not even his parent can procure his discharge. The right of the United States to hold him to the penalty of the infraction of his contract and of military dis- cipline is paramount to the r ght of the parent to his services, and the parent cannot procuie his release on habeas corpus wliile held in mililary custody awaiting trial, or under sentence on conviction of desertion or other mililary offense. The law requiring consent of parent or guardian applies to an Indian minor enlisting in the army. Ibid., par. 13. ' See 4th Article of War, post. Except in cases to which the last paragraph of the 60th Article of War may be applicable, a soldier cannot be made amenable for an offense committed under an enlistment prior to that in which he is serving. Ee- enlistment does not revive such a liability. Dig. J. A. Gen., 654, par. 1. ' Dig. J. A. Gen., 355, par. 1. A soldier honorably discharged in the usual form at the end of his term is no longer subject to military discipline or control.* Having become a civilian, he is entitled to be restored at once, or as soon as the exigencies of the service will permit, to the rights and status of a citizen. Ibid., 356, par. 6. The formal certificate of discharge furnished in blank by the Adjutant-General is, when duly made out and signed (see Art. of War 4), legal evidence of the fact, of discharge, and of the circumstances therein stated, under which it was given. f The certificate is not a record, and its statements are not conclnsive upon the Government when contradicted by record or other better evidence. Ibid., 358, par. 13. The discharge furnished to the soldier, or for him, lakes effect, like a deed, upon delivery. The delivery should be personal, unless at its date, the soldier is in confine- ment awaiting trial or under sentence; in such case the delivery may be constructive, the certificate being committed to the commander of the company, post, etc., to be retained by him for the soldier until released from arrest or imprisonment, and then rendered to him -personally. This is the recognized practice; the delivery to the com- mander being deemed tantamount to actual delivery. Ibid., par. 14. Any form of discharge other than such as is prescribed in the 4tb Article of War is irreguliir and inoperative (unless indeed otherwise authorized by subsequent slatute). Mere desertion does not operate as a discharge of a soldier; he may then be dropped from the rolls of liis command, but he is in no sense discharged from the army. Nor can an official publication, in orders, of a sentence of dishonorable di^^clmrge have the effect of discharging a soldier ; there must still be a notice, actual, as by the delivery of the formal discharge certificate, or constructive. A soldier cannot discharge himself by simply leaving the service at the expiration of his term. The final statements required by par. 141, A. R 1895, to be furinshed with the discharge, constitute no pait of the di^'Clmrge: the disciiarge is complete without them. Ibid., 359, par. 17. The statement of " character " appended to the certificiite is no pait of the discharge. This description is devolved by par. 148, A. R. 1895, upon the commanding officer * Much less is he subject to be punished. In the late case of Whil^e vs. McDonongh, 3 Sawyer, 811, where a snlrlier whose term of enlistment expired while he was on a transport with a detachment was formally discharged, and snbspquentlv, on account of an alleged breach of discipline, was ordered by his commandmg officer to work in the coal-liole, the cou-rt pay : "The conduct of the oflticer in command was arbitrary and unjustifiable either by law or military necessity." t Hanson vs. S. Scituate, 116 Mass., 339; Bd. of Oomrs. vs. Hertz, 87 Ind., 336; U. S. vs. Wright, 5 Philad., 396. 58 MILITARY LAW. The service of a commissioned officer may be terminated in time of peace by resignation, by dismissal in pnrsaance of the sentence of a general conrt-martial, or, under the authority conferred by Section 1329 of the Eevised Statutes, he may, for absence without leave extending over a period of three months, be dropped from the rolls by order of the President.' In addition to these methods, the service of a commissioned officer in time of war may be terminated by a formal discharge at the expiration of his term of service ; and he may also be discharged at the discretion of the President, but with the right, as will presently be seen, to have the question of his dis- missal inquired into by a general court-martial.' Jurisdiction after Expiration of Service. — As has been seen, an officer or soldier (except as otherwise expressly provided by statute) ceases to be amenable to the military jurisdiction for offenses committed while in the military service after he has been separated therefrom by resignation, dis- missal, being dropped for desertion, muster-out, discharge, etc., and has thus become a civilian.' The discharge of a soldier, therefore, when subject to trial and punish- ment for a military offense is a formal waiver and abandonment by the United States of jurisdiction over him. Nor does a soldier after having once been discharged (as where he has been dishonorably discharged by sentence for desertion or any other military offense) remain liable to military juris- diction, or become subject thereto, as to past offenses, by again entering the military service, whether by enlistment or by conscription or appointment. ' Nor can a person who, by reason of acceptance of resignation, dismissal, discharge, etc., has become wholly detached from the military service be made liable to trial by court-martial for offenses committed while in the service, on the ground that such offenses were not discovered till after he had left the Army. Exceptions : 60th Article of War j Military Convicts. — The 60th Article of "War confers jurisdiction upon courts-martial for the trial of officers or enlisted men for offenses therein enumerated, subject, however, to the opera- tion of the statute of limitations contained in the 103d Article. The Act of June 18, 1898,* confers jurisdiction for the trial of enlisted men only who have been sentenced to dishonorable discharge and to confinement in addi- ■whose duty It may be to make out the discharge. The Army Regulations do not give to his superior auy authority over the subject. (See G. O. 74 of 1881.) Dig. J. A. Gen., par 18. 1 Section 1229. Revised Statutes. See Newton m. U. S., 18 Ct. CIs., 435 ; Dig. J. A. Gen., 370, par. 5 ; Ibid, par. 7. See, also, Section 1230, Rev. Statutes. ' Sections 1239 and 1230, Rev. Stat. « Dig. J. A. Gen., 323, par. 5. « Section 5, Act of June 18, 1898. (30 Stat, at Large, 483.) TEE JUBISDIOTION OF COURTS-MARTIAL. 59 tion thereto, such jurisdiction attaching during the period of imprisonment imposed by the sentence of a general court-martial. But a soldier, if he has not been in fact discharged, may be brought to trial by court-martial after the term of service for which he enlisted has expired, provided before such expiration proceedings with a view to trial have been duly commenced against him by arrest or service of formal charges.' By such arrest or service of charges the military jurisdiction attaches, and, once attached, trial by court-martial, and punishment upon conviction, may legally ensue though the soldier's term of enlistment may in fact expire before the trial be entered upon.' 4. Jurisdiction as to Offenses. — As the Federal Government, as such, has no common-law jurisdiction, it follows that there can be no criminal offenses against the United States unless they are made such by statute." This principle applies with equal force to military offenses which, to become triable and punishable by military tribunals, must be expressly created by statute. The several military offenses known to the law are to be found in the Articles of War and in subsequent enactments of Congress. Other offenses, while not defined in those Articles, are adopted by them and courts- martial are given jurisdiction over them. In some cases- this grant is general, applying to all times and places; in others it is limited to time of war only. Still other offenses — those of being a spy, and forcing a safe- guard, for example — become such only when a state of war exists to which the United States is a belligerent party. Courts-martial have exclusive jurisdiction to try offenders for acts con- > Dig. J A. Geu., 324, par. 6. See; also, G. C. M. O. 16, A. G. O , 1871. ' In tbe leading case on tbis point, of a seaman in the navy (In re Walker, 3 Ameri- can Jurist, 281*;, the Supreme Court of Massachusetts held (Jan. 25, 1830) as follows : " In this case tlie petitioner was arrested, or put iu confinement, and charges were pre- ferred agidust him to the Secretary of the Navy before the expiration of tbe time of his enlistment; and this was clearly a sufficient commencement of the prosecution to authorize a court-martial to proceed to trial and sentence, notwithstanding the time of service liad expired before the court-martial had been convened." And, to illustrate the injurious consequences of an opposite ruling, the court goes on to remark that " if any of the class of otieiises not punishable at common law," and " of which no other courts excepting courts-martial can take cognizance, should be committed by any seaman im- mediately before the expiration of his term of service, he would escape with impunity. He might be guilty of tbe grossest insult to his officers ; of disobedience of orders in the most critical moment to the ship ; and iu the hour of battle he might refuse to fight, and there would be no power to punish him." So held by the Judge-Advocate General in a case of a soldier of the regular army arrested cm the day before the expiration of his term of enlistment, with a view to a trial for a militiiry offense by court-martial, that the jurisdiction of the court had duly attached, and that his trial might legally Be pro- ceeded with. And similarly held in repeated cases of soldiers and officers of regular and volunteer regiments. Dig. J. A. Gen., 324, par. 6. ' U. 8. m. Worrall, 2 Dallas, 384 ; Ex parU Bollman, 4 Cranch, 75 ; U. S. vs. Hud- sou, 7 Cranch, 32 ; U. S. vs. Coolidge, 1 "Wheat., 415 ; U. S. vs. Beraus, 3 Wheat., 326. * And see Judge Story's charge to the jury in United States vs. Travers, 2 Wheeler Cr. C, 509; In the Matter of Dew, 35 L. B., 540; In re Bird, 2 Sawyer, 33. €0 MILITARY LAW. fltituting military ofEenses only; they also have jurisdiction to try offenders for certain acts which, besides constituting military ofEenses, are also civil crimes. In the latter case the military ordinarily gives precedence to the ciTil court, but when an officer or a soldier has been arraigned before a duly constituted court-martial for an offense triable by it, tbe jurisdiction thus attached cannot be set aside by the process of a State court." As regards offenses, the jurisdiction therefore embraces the offenses specifically defined in the Articles of War, or included under the general terms of the 61st and 62d Articles;' the offense of military persons trading Tvith the enemy,' and that of fraudulently enlisting in the service of the United States." The 61st and 62d Articles of War.— The 61st Article of War gives to certain acts or omissions on the part of an officer the character of a military offense under the name of conduct unbecoming an officer and gentleman; the particular acts or behavior that shall constitute such conduct being determined by custom of the service, as indicated by the approved decisions of courts-martial in cases referred to them for trial. Especial weight is attached to the decisions of the President in cases arising under the Article in which he appears as the reviewing authority.' Certain crimes, disorders, and neglects, when committed by military persons under circumstances cal- culated to make them prejudicial to good order and military discipline, have the quality of military offenses conferred upon them by the terms of the 63d Article.' Oflfenses Exclusively Triable by General Courts-martial. — These courts have, as regards persons and with reference to other courts-martial, ex- clusive jurisdiction over officers,' cadets,' and "candidates for promotion." ' Over enlisted men, other than candidates for promotion, they have con- ' "Manual for Courts-raartial " (edition of July, 1898), p. 14, par. 6. See, also, Dig. J. A. Gen., p. 328, par. 12. ' Section 1343, Revised Statutes. • Sections 5306 and 5313, ibid. * Act of July 27, 1892. (27 Stat, at Large, 278.) See G. O. 57, A. G. O., 1893. For definition of fraudulent enlistment, see " Manual for Courts-martial " (ed. of July 11, 1898), page 13, note 4. A court having once duly assumed jurisdiction of an offense and person cannot, by any wrongful act of the accused, be ousted of its author- ity or discharged from its duty to proceed fully to try and determine, according to law and lis oath. Thus the fact that, pending the trial, the accused has escaped from mili- tary custody furnishes no ground for not proceeding to a finding, and, in the event of conviction, to a sentence, in the case ; and the court may and should find and sentence as iu any other case. ' See the 61st Article in the chapter entitled The Akticlbs of War. ' See the 62d Article in tbe chapter entitled The Articles of War. ' 83d Article of War. « Section 1326, Revised Statutes. ' Section 4, Act of July 30, 1892. (27 Stat, at Large, 336.) Act of June 18, 1898, (30 Stat, at Large, 483.) TEE JURISDICTION OF COURTS-MARTIAL. 60a current jurisdiction with the inferior courts in cases cognizable by the latter. As regards offenses,' they have exclusive jurisdiction over all offenses punishable capitally,' and over those set forth in the 58th Article, when committed in time of war. Over other offenses they have concurrent juris- diction with the inferior courts; subject to the qualification that all offenses for which the prescribed limit of punishment is in excess of the limits of the punishing power of an inferior court, as well as all serious non-capital offenses for which limits of punishment have not been prescribed, are, when practicable, to be tried by general court-martial. Appellate Jurisdiction. — It has been seen that the jurisdiction of courts- martial, in respect to military offenses, is both original and exclusive. Save in the case contemplated in the 30th Article of War, which will be explained hereafter, their jurisdiction is &\?,o final, and cannot be made the subject of appeal to a military tribunal of higher authority or more extensive jurisdic- tion. Nor can a case properly triable by a court-martial be carried, by way of appeal, to any form of civil tribunal ; all of which, without exception, are without jurisdiction to try cases properly arising under the Articles of War." Rules of Interpretation. — Whenever a common-law offense is, by a suit- able enactment of Congress, given the character of an offense against the United States, the rules regulating the interpretation of criminal statutes at common law will prevail in all questions respecting its interpretation. ' Paragraph 931, Army Regulations of 1895. See, also, Act of June 18, 1898. (30 Stat, at Large, 483.) ' See " Manual for Courts-martial" (ed. of July 11, 1898), par. 2, p. 15, and par. 13, p. 8. « 83d Article of War. ■* Though transient and summary their judgments, when rendered upon subjects within their limited jurisdiction, are as legal and valid as those of any other tribunals ; nor are the same subject to be appealed from, set aside, or reviewed by the courts of the United States or those of any of the States. Dig. J. A. Gen,, 313, par. 1 ; see, also, note 1, page 15 ante, Swaim vs. U. S., 165 U. 8., 553, 554. 605 MILITABT LAW. TABULAR STATEMENT OF THE JURISDICTION OP COURTS-MARTIAL.' Juris- diction. {The United States. The territory of the enemy in time of war. Friendly foreign territory in time of peace (exterritoriality). ' Daring period of service. After expiration of service. ■ Time. Persons. ■ Offenses. 1. Desertion. (48 A. W.) 3. Where proceeding has been instituted before expiration of service, by arrester con- finement, etc. 3. Offenses under Article 60. Trial to be had within statute of limitation. All ofEenses except desertion in time of peace ; order for trial to be issued within two years after commission of offense. (103 A. W.) Desertion in time of peace ; offender to be brought to trial be- tween date of desertion and two years after expiration of term of enlistment. (Act of April 11, 1890.) (Statutes of limitation are properly matter of defense. See chapter on Incidents of the Trial.) i. Regular Army. 1. Army of the United States < Volunteer Army. ( Drafted men. 3. Militia in service of the United States. 3. Marines detached for service with the army. 4. Military convicts while undergoing sentence of imprison- ment after dishonorable discharge. (Act of June 18, 1898.) 1. Retainers to the camp. (1. OflBcer's servants. (68 A. W.) ] 2. Camp-followers. 2. Persons serving with an army in the field (63 A. W. ). Civilian employes, contractors, etc. 5. Civilians. \ 3. All persons relieving, corresponding with, or giving intelligence to the enemy. (45, 46 A. W.) 4. Spies. (See 1843, R. S.) 5. Persons trading with the enemy, etc. (Sees. 5306, 5313, R. S.) 1. Specific (All articles 3. General ) Articles 61 _ (described). J and 62. Sections 1359, 1360, 5806, 5313, R. S Under Articles of War. Military. All except 58 and 60 A. W. Military and Civil, and 60 A. W. 58 Under other statutes. ■{• Act of July 37, 1892; etc., etc. ' Prepared by Captain Geo. H. Boughton, 3d Cavalry, Assistant Professor of Law, U. S. Military Academy. CHAPTEE VI. ARREST AND CONFINEMENT. THE AEREST OF OFFICERS. Arrest in General. — To enable the proper military authority to put an ^Mistant end to criminal or unmilitary conduct, and to impose such restraint as may be necessary upon the person of a military offender, with a view to his trial by court-martial, the Articles of War empower commanding officers to arrest officers serving under their immediate command ; they also confer upon all commissioned officers a similar power to confine enlisted men. As both of these acts constitute restraints upon freedom of movement, they require and have received express statutory sanction. Arrest of Commissioned Officers. — The 65th Article of War provides that " officers charged with crime shall be arrested and confined in their barracks, quarters, or tents, and deprived of "their swords by the commanding officer." The arrest of a commissioned officer is usually executed by a staff-officer of the proper commander, by means of an oral or written order or communica- tioQ advising him that he is placed in arrest, or will consider himself in arrest, or in terms to that effect. The reason for the arrest need not be, bat usually is, specified, and the arrest may also be accomplished by the com- manding officer in person.' Except in the case con templated-in— tIia-2i>th-Ajiticle of-Wac— arJn the p. yent pf a.n ex tra ordinary emergency, -nAnftJMit,- cnmTTia,Tiding officers can pl ace commissioned officers in ar rest: the commanding officer so authorized being the commander of the tactical or territorial command to which the arrested officer belongs, that is, of the department, post, or staff corps, or of the army, division, brigade, regiment, battalion, battery, or other separate ' Dig. J. A. Gen., 169, par. 1; Macomb, § 19. The term "ciime" is here employed in a general sense, referring to offenses of a militnvy character, as well as to those of a civil character which are cognizable by court- martial. Dig. J. A Gen., 78, par. 1. Com- pare Wolton VI. Gavin, 16 Ad. & El., 6fi, 68; Simmons, § 360. An arrest, though an almost invariable, is not an essential preliminary to a military trial ; )o give tlie court jurisdiction it is not necessary thai the accused should have been arrested ; it is sufficient if he voluntarily, or in obedience to an order directing him lodo so. appears and submits himself to trial. So. neither the fact that an accused has not been formally arrested, or arrested at all, nor the fact that, having been once arrested imd released from arrest, 'be has not been re-arrested before trial, can be pleaded in bar of trial, or constitute any- ground of exception to the validity of the proceedings or sentence. Dig. J. A. Gen., 169, par. 1; ibid., 338, par. 11. 61 62 MILITARY LAW. or independent organization or detachment in the field. Where a regiment, battalion, or. company is included in a post command, the commander of the post, rather than the commander of the inferior organization, is the one by whom the arrest of a subordinate officer should be efEected.' A court-martial has no control orer the nature of the arrest or other status of restraint of a prisoner except as regards his personal freedom in its presence. Nei ther t he cour tier th^jgresident can place an accused persoiLinjrTCstJi_^e_b^_^i£tjilready in tha^_£tatusj|^oFrain the "court, evea ■~\ I with a Tiew to facilitate his defense, interfere to cause a close ari^ est to~be enlargedT" The officer in command is alone responsible for the prisoners in his charge." Status of Arrest. — On being placed in arrest, an officer resigns his sword to the person executing it; if this form be omitted it is nevertheless consid- ered to have taken place, and hence originates the custom, which is invaria- bly observed, that an officer in arrest appears without his sword.' The status of being in arrest is inconsistent with the performance of any military duty, and an officer in that situation is therefore without power, during the pendency of his arrest, to exercise military command, or even to perform any of the duties incident to his rank or station. The imposition of arrest, however, affects in no manner the right of an officer or soldier to receive the pay, allowances, or emoluments of his rank in the military service.' An officer in arrest has no right to demand a court-martial either on himself or others; the commanding general, or other officer competent to order a general court-martial, being the judge of its necessity or propriety. Nor has an officer who may have been placed in arrest any right to demand a trial, or to persist in considering himself in arrest, after he shall have been released by proper authority.' An officer is in no case entitled to demand to be arrested. ° \l / An jpfflcer under arrest will not make a visit of etiquette to his com- j manding officer, or call on him, unless senTfoff and in case of businesSTEe I will make known his oTijecOn writing. ~lt is considered indecorous in an officer in arrest to appear at public" places.' limits of Arrest. — Unless o'ther limits are specially assigned him, an officer in arrest must confine himself to his quarters. It is generally under- ' Dig. ,T. A. Gen., 170, par. 3 ; par. 897, A. R., 1895. ^ Dig. J. A. Gen., 31-1 par. 5 : ibid., .S28, par. 11. ' Jlscomb, § 19. An officer in arrest will not wear a sword nor visit officially his commandintt or other suTverior officer unless directed to do so. His applications and requests of every nature will be made in writing. Par. 901, A. R., 1895. On the march, field-officers and non-commissioned staff-officers in arrest will follow in the rear of their respective regiments, and company oiHcers and non-commissioned offi- cers in arrest, in rear of their respective companies unless otherwise specially directed. Par. 903, A. R., 1895. *Ibid., 171, par. 8. ' Macomb, §§ 28, 39 See, also, § 27, ibid. « Dig. J. A. Gen., 169, par. 1. ^ Ibid., § 30. See, also, paragraphs 900-903, Army Regulations of 1895. ARREST AND CONFINMMBNT. 63 stood, indeed, tliat he can go to the mess-hoase or other place of necessary resort. It is not unusual, however, for the commander to state in the order of arrest certain limits within which the officer is to be restricted, and, except in aggravated cases, these are ordinarily the limits of the post where he is stationed or held. An officer or soldier, though retained in close arrest, should be permitted to receive such visits from his counsel, witnesses, etc., as may be necessary to enable him to prepare his defense.' Although the Articles of War make no mention of any difference in the nature of the arrest in order to trial, still a difference is established by the custom of the Army, according to the degree or measure of the crime ; an officer accused of a capital crime, or of any offense to which the penalty attached is so severe as to excite a natural temptation to escape from jastice, should be detained in a state of confinement as secure as the closest civil imprisonment.' If the offense be of a lighter nature, the presumption is that the officer whose character is thus impeached must be solicitous to obtain a judicial investigation of his conduct, and he is therefore generally allowed to be in arrest at large ; that is, without his sword, but on his word of honor to await the issue of a trial or his enlargement by proper authority. The degr ee and measure of the arrest must, however, bcentirelvat-the^dis-. cretio n"of the commanding offi xieiiwiidMMriJA-in-afl-I -cases reyulatfi his conduct by tne particular circumstances of the case and by the dictates of propriety and humanity." Breach of Arrest. — The 65th Article of "War contahis the requirement that " an officer who leaves his confinement before he is set at liberty by his commanding officer shall be dismissed the service." An offense in violation of tliis_Articleja.QHly_Committ6d' when m\. officer confined- iaii-elose-ao^rest " to his Quarters leaves the same without authority. This clause of the Article, being highly pen aJJn^ charaeter, is-siJaatly.coiistraed,_anjLJoi!;Jhis reason a breach of a mere fo rmal arr est, or of_anv arrest not accompaniedby co nfinement to quaS5E£! ^H .ld he . an-offfinse.nat- within this ArM^ls but under Article 62/ The mere doing of an act prohibited by the status oF arrest, but witGout intent to violate the terms of the Article, such as the wearing of a sword through inadvertence, or the like, constitutes a construc- tive breach of arrest, which, though reprehensible or even punishable, does not constitute the offense described in the Article.' ' Dig. J. A. Gen., 170, par 3. ' ~ ' No court-martial, military commander, or other military authority is empowered to accept bail for the appearance of an arrested party or to release a prisoner on bail. Bail is wholly unknown to the military law and practice ; nor can a court of the United States grant bail in a military case. Ibid., 177. 3 Macomb, §20. ■• Dig J. A. Gen., 78, par. 1. See, also, par. 3 and par. 4, ibid. '• "Where an officer in close arrest was permitted by his con-.macding officer to leave temporanly Ids confinement, held that his delaying his return for a brief period beyond the time fixed therefor did not properly constitute an oflEense under this Article. Ibid.. par. 3. "K 64 MILTTABT LAW. Termination of Arrest. — An arrest lawfully imposed, can only be termi- nated by the commanding officer who imposed it, or by his superior or sac- cessor in office. If the arrest be imposed with a view to trial, the arrest is terminated by the proper reviewing authority in his action upon the proceedings of the court-martial; the arrest ceasing when the sentence becomes operative, unless sooner terminated — as in a case of acquittal, for example — by the officer ordering the court. Restrictions upon the Duration of Arrests. — With a view to place a limitation upon the power to continue an officer in the status of arrest, and to prevent abuses in its exercise, the TOth Article of War provides that " no officer or soldier put in arrest shall be continued in confinement more than eight days, or until such time as a court-martial can be assembled." The 71st Article, however, contains a more elaborate restriction upon the author- ity to arrest in its requirement that " when an officer is put in arrest for the purpose of trial, except at remote military posts or stations, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be iriedis_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 "Erfal within thirty days after the expiration of said ten days. If a copy of the charges be not served, or the arrested officer be not brought to trial, as herein re- quired, the arrest shall cease. But officers released from arre st under the provisions of this Article may J)e tried j^ wheneverThe exigencies of i]ifi_asr^ vice shall permit, within twelve months after such release from arrest." ' Delafning officers or soldiers in arrest for long and unreasonable periods when it is practicable to bring them to trial is arbitrary and oppressive, and in contravention both of the letter and spirit of this Article. Whether the delay in any case is to be regarded as so far unreasonable as properly to subject the commander responsible therefor to military charges, or a civil action, mast depend upon the circumstances of the situation and the- Tbougli any unauthorized leaving of his confinennient by an ofiScer in close arrest is strictly, !i violation of the Article, it would seem, in view of the severe mandntory puD- ishment prescribed, that an officer should not in general be brought to trial under thf^ same unless his act was of a reckless or deliberately insubordinate character. Dig, J. A. Gen., US, par. 4. It is no defense to a charge of breach of arrest in violation of this Article that th" accused is innocent of the offense for which he was arrested.* It is a defense, however, that subsequently to the original confinement the accused has been put on duty or allowed to go on duty, provided that he has not been duly re-arrested and re-confined before the breach assigned. -f Ibid., par. 5. The requirement of this Article that an offender "shall be dismissed" is held to be exclusive of any other^puniahment. A sentence of dismissal, with forfeiture of pay, is unauthorized and Inoperative as to the forfeiture, and as to this should be disap- proved. Ibid , 79, par. 6. ' For a history of this Article, see Article '71 in the chapter entitled The Articles OF War. * Hough (Prac), 494. + Hough (Prac), 19. ARREST AND CONFINBMBN'T. 65 exigencies of the service at tlie time." Ujider no circumstances, however, can anjjfficer or enlisted man_release^imself from arrest, or terminate a la wf ally imposed status of arrest at his own volition. ' Arrests under the 24th Article of War. — An exceptional power to impose arrests upon commissioned officers and to order enlisted men into confinement is contained in the requirement of the 24th Article of War that ^'all officers, of what' condition soever, have power to part and quell all quarrels, frays, and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery, or company, and to order officers into arrest, and non-commissioned officers and soldiers into confine- ment, who take part in the same, until their _Broper superior officer i s .acq uainted ther ewith. And whosoever, being so ordered, refuses to obey such officer or non-commissioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct." This Article, framed to meet the grave emergency of serious frays or dis- orders in a military command, is in substance an application of a well-known rule of the common law to the needs of the military service.' The term officer is here given a peculiar statutory interpretation, not recognized else- where in the Articles of War, in that it is applied to all military persons above the grade of private soldier. The duty of determining the existence of an emergency of sufficient importance- to bring "the Article into operation ' Dig. J. A. Gen., 80. Compare Blake's Case, 2 Maiile & Sel., 438; Bailey vs. Waiden, 4jd, 400. '' Though an officer in whose case the provisions of this Article in regard to service of charges and trial have not been complied with is entitled to be released from arrest, he is not autlioiized to release himself therefrom. If he be not released in accord- ance with the Article, he should apply for his discharge from arrest, through the proper channels, to the authority by whose order the arrest was imposed, or other proper superior. Dig. J. A. Gen , 80, par. 1. The term " within ten days thereafter " held to mean after his arrest. Ibid., par. 2. Held a sufficient compliance with the requirement as to the service of charges to liave served a true copj' of the existing charges and specifications, though the list of witnesses appended to the original chiirges was omitted, and though the charges them- selves were not in sufficient legal form, and were intended to be amended and redrawn. Ibid., p. 81, par. 3. The fact that cases of officers put in arrest "at remote military posts or stations " are excepted from the application of the Article does not authorize an abuse of the power of arrest in these cases. And where, in such a case, an arrest, considering the facilities of communication with the department headquarters and other circumstances, was in fact unreasonably protracted without trial, held that the officer was entitled to be released from arrest upon a proper application submitted for the purpose. Ibid., par. i: ' It is a principle of the common law that any bvstander may and should arrest an affrayer. 1 Hawkins, P. C, c. 63, s. 11; Timothy vs. Simpson, 1 C. M. & R., 762. 765; Phillips m. Triill, 11 Johns. 487. And that an officer or soldier by entering the military service does not cease to be a citizen, and as a citizen is authorized and bound to put a stop to a breach of the peace committed in his presence, has been specifically held by the authorities. Burdett vs. Abbott. 4 Taunt., 449; Bowyer, Com. on Const. L. of Bug., 499; Simmons, g§ 1096-1100 This article is thus an application of an established common-law doctrine to the relations of the military service. See its application illustrated in the following General Orders: G 0. 4, War Dept., 1843; do. 63. Dept. of the Tennessee, 1863; do. 104, Dept. of the Missouri, 1863; do. 52, Dept. of the South, 1871; do. 92, id., 1873. 66 MILITARY LAW. I rests^grimarily upon the senior officer present at the time of its occurrence; -/ / injbhe^eyentjof-hisJailure to act,Jhe daty, but not the responsibili ty, passe s toihejiext in rank, and so on, in successions To insure its effectual opera- tion, the Article imposes the duty of implicit obedience upon all military persons present in respect to such orders as may be given them in further- ance of the purpose of quelling the disorder. Arrests under the 25th Article of War. — The 25th Article of War con- tains the requirement that " no officer or soldier shall use any reproachful or provoking speeches or gestures to another," and authorizes the arrest of any officer who makes use of such speeches or gestures.' This Article confers no jurisdiction or power to punish on courts- martial, but merely authorizes the taking of certain measures of prevention and restraint by commanding officers; i.e., measures preventive of serious disorders such as are indicated in the two following Articles relating to duels,* CONFINEMEKT OF ENLISTED MEN. How Executed. — The arrest of an enlisted man is executed, or his confinement ordered, by his immediate commander, or by the officer who has observed the commission of a military offense; in which ca5e_tllfi_ ^ / fact of confinement will be immediately reported to the commander of "'■' the_^compajay_or_detacbment to which the oflender^belongs.' The con- finement of an enlisted man, though required, by regulation and by custom of service, to be ordered by a commissioned officer, may be executed by a sub- ordinate or by any duly authorized military person, as by a non-commissioned officer or by a sentinel. Except as provided in the 34th Article of War, or when restraint is necessary, no soldier will be confined without the order of an officer, who shall previously inquire into the offense.* By custom of the service, non-commissioned officers are frequently placed in close arrest in the same manner and subject to the same restrictions as commissioned officers.' An enlisted man while in confinement awaiting trial or awaiting the result of trial should not be fettered or ironed except where such extreme ' " No officer or soldier shall use any reproachful or provoking speeches or gestures to another. Any officer who so offenrls shall be put in arrest. Any soldier who so offends sliall be coaflned, and required to asli pardon of the party offended, iu the presence of his commandina; officer " 3olh Article of War. = Diir. J. A. Gen., 33. Compare Samuels, 372. ' 66th Article of War. The word " crimes," as used in this Article, is construed to mean serious military offenses. So that a soldier will not properly be "confined" where not charged with one of the more serious of the military offenses; in olher words, ■where charged only with an offense of a minor character. Dig. J. A. Gen., 79, par. 3; paragraphs 903-906, Array Regulations of 1895. * Paragraph 905, A. R. 1895. ■^ Macomb, § 31. Should a non-commissioned officer break an arrest so imposed, the charge of breach of arrest would, of course, be laid under the 63d Article, the provisions of Article 65 applying exclusively to commissioned officers. ABBEST AND CONFINEMENT. 6T means are necessary to restrain him from violence, or there is good reason to believe that he will attempt an escape and he cannot otherwise be securely held.' Under existing regulations " soldiers in confinement awaiting action on the proceedings of their trials are assimilated to those awaiting trial, and both classes may, at the discretion of the commanding officer, be employed, separately from prisoners undergoing sentence, upon such labor as is habitually required of soldiers. More severe or other labor would not be legal, nor would labor with a police party consisting in whole or in part of men under sentence however slight their sentence might be.' A soldier in arrest in quarters may be required to do fatigue or police work about his quarters which otherwise other soldiers would have to do for him." ' Miscellaneous Provisions respecting Confinement. — The 67th and 69th Articles of War prescribe a method of procedure in respect to the confine- ment of enlisted men and fix the conditions which, if performed by the committing officer, not only justify the commander of the guard in receiv- ing, but, under an appropriate penalty, require him to receive and safely hold, a prisoner tendered to him for confinement. The conditions referred to are fully set forth in the Articles in question, which provide that ".no provost- marshal or officer commanding a guard shan_re|use to receive or keep any prisoner CQjQimtted to his charge by an officer belonging to the forces of the United States, provided the officer committing shallj^ at the same time, deliver an account' in writing, signed by himself, of the crime charged against_the^^^igQll£lL." ; * and "any officer who presumes without proper authority to release any prisoner committed to his charge, or sufiers any prisoner so committed to escape, shall be punished as a court-martial may direct." ' Release of Enlisted Men from Confinement. — This subject, in its relation to commissioned officers, has already been discussed, and it is only necessary to say at this point that the restriction upon the power to arrest which is contained in the 70th Article of War applies equally to the cases of officers and enlisted men. " The latter part of this clause evidently allows a lati- tude which is capable of being abused ; but, as in a free country there is no 1 D-:?. J A. Gen., 171, par. 10; par. 909, A. K 1895. See G. O. 55, A. G. O. 1895. « G. O. 44, Div. Attiinlic, 1889. ' Dig. J. A. Gen., 171, par. 11; par. 9C7, A. R. 1895. Soldiers lield in military arrest, while they may be snbjected to such restraint as may be necessary lo prevent their escaping or commitling violence, cannot legally be sub- jected to any punishment. The imposition of punishment upon soldiers while thus detained has been on several occasions emphaticiiUy denounced by department com- manders. Si e for exampje, the remarks of such commanders in G O 23, Dept. of the East, 1863; do. 26, Dept. of California, 1866; do. 23, Dept. of the Lakes, 1870; do. 106, Dept. of Dakota, 1871. And compare remarks of Justice Story In Steere vs. Field. 2 Ma.son, 516. Dig J. A. Gen., 79, par. 1. *67th Article ofWar. « 69th Article of War. ^8 MILITARY LAW. wrong without a remedy, the military law points out a mode of redress for all officers and soldiers who conceive themselves injured by their command- ing officer which must always be sufficient for restraining every act of injustice or oppression." ' In addition to the provisions already discussed, the 68th Article of War, ■with a view to prevent arbitrary imprisonment, contains the requirement that " every officer to whose charge a prisoner is committed shall within twenty-four hours after such commitment, or as soon as he is relieved from his guard, report in writing, to the commanding officer, the name of such prisoner, the crime charged against him, and the name of the officer com- mitting him; and if he fails to make such report, he shall be punished as a court-martial may direct. " ° To the same end the Army Regulations provide that " all persons under guard without written charges will be released by the old officer. of the day at guard-mounting unless specific orders to the contrary have been given in each case by the commanding officer." ' ' Macomb, § 22. « 68tli Article of War. ' Paragraph 908, Army Regulations of 1895. CHAPTEK VII. CHARGES AND SPECIFICATIONS. The Charge. — The instrument in which the military offense against a n accused person is set forth (corres-B Oflding to the indjctmerit in criminal_pror ceau re) is called, the charge. ^ Unlike the indictment, however, a military "charge is c omposed of ttyo parts, the cAar.Q'e yroyer, in w hich the particula r offens e is alleged in'g'enSTal'terms, and the specification, i n which, as its name implies, the factTc^stitiiting the offense charged are fully and sufficiently stated. An accusation against an officer or soldier not thus separated in form would be irregular and exceptional in our practice, and till amended would not be accepted as a proper basis for proceedings under the code.' rorms of Charges. — While the same particularity is not called for in mili- tary charges which is required in criminal indictments, there are certain essential conditions which must be complied with in their preparation. These are : (1) that Jhe charge jhajiig^ laidjjnder the proper Article of War, or other statute ; (2 ) that such ch arge shall set forth in. the s pecifica - t ion facts sufficient to constitute the particular offense. This is best accom- plished, as to the charge, by a brief description of the offense, wherever practicable in the words of the Article under which it is charged, adding the phrase " in violation of the Article of War," or other statute describ- ing the offense. "Desertion, in violation of the 47th Article of War," " Sleeping on post, in violation of the 39th Article of War," " Being a spy, in violation of Section 1343 of the Eevised Statutes of the United States," are examples of the proper forms of words appropriate to be used in such allegations." ' Dig. J. A. Gen., 324, par. 1. See, also, Manual for Ootirts-martial, pp. 15-30. In our practice, unlike that of the English courts-martial, a military charge properly consists of two parts, the technical "charge" and the "specification." The former designates by its name, particular or general, the alleged offense ; the latter sets forth the facts supposed to constitute such offense. Dig. J. A. Gen. 324, par. 1. ' Dig. J. A. Gen., 335. par. 3. In regard to the proper form for a military charge, Atty.-Gen. dishing (7 Opins., 603) says: "There is no one of exclusive rigor and necessity in which to state military accusations." He adds further : " Trials by court- mariial are governed by the nature of the service, which demands intelligible precision of language, but regards the substance of things rather than their forms. . . . The most bald statement of the facts alleged as constituting the offense, provided the legal offense itself be distinctively and accurately described in such terms of precision as the rules of military jurisprudence require, will be tenable in court-martial proceedings, and 69 10 MILITAB Y J. A W. Specifications. — The requirement above stated in respect to the specifica- tion is fulfilled by a compliance with the following conditions: (1 ) the ofEender^ould be identified and described as a member of t he milit ary establishment or, if a civilian, as a person amenable to military Jurisdiction; ^SfJ^^^elfacts constituting the "essential elements or ingredien ts of th e ofEe^e shouldbejufficiently set forth ;'and, (3) where inten t is an essential ingredient of the offense, there must be an allegation of such cr iminal in tent in the specification: this is accomplished by the use of the words "willfully," "^owmglyT'^" feloniously," " corruptly," or other terms of like import,' according to the circumstances of the particular case. These precautions are necessary not only to apprise the accused of the offense charged against him, but for the purpose of showing, affirmatively, that the person mentioned in the charges, .as well as the offense charged or alleged, is within the jurisdiction of the court convened for the trial of the case. " These essentials being observed, however, the simpler and less encumbered with verbiage and technical terms the charge is the better, provided it be expressed in clear and intelligible English. However inarti- ficial a pleading may be, it will properly be held sufficient as a legal basis for a trial and sentence, provided that the charge and specification, taken together, amount to a statement of a military offense, either under a specific Article or under the general Article, No. 62." ' The specification should also be appropriate to the charge. A charge of "conduct to the prejudice of good order and military discipline," with a specification setting forth a violation of a specific article, is an irregular and defective pleading, and so, of course, is a charge of a specific offense with a will be adequate groundwork of coiivictiou and sentence." So it is observed by Atty.- Gen. Wirt (1 Opins., 286) that "all that is necessary" iii a military cliarge is tliat it be "sufficieutly clear to infonu the accused of the military ofleuse for wliicli be is to be tried, aud lo enable liim to prepare bis defense." And see Tytler, 209 ; Kennedy, 69. It is ably remarked by Gould (Pleading, p. 4) Ibat "all pleading is essentially a logical process"; aud that, in analyzing a correct pleading, "if we lake into view with what is expressed what is necessarily supposed or implied, we shall find in it the elements of a good syllogism." But it can hardly be expected that military charges in general will stand this lest. ' Some military offenses, as defined in the Articles of War or the statutes creating them, contain no reference to an intent ; under this head fall sleeping on po.st, signing a false certificate, under the 13lh Article, and disrespect to a commanding officer, imder Article 30 ; in such cases it is not necessary to allege a particular intent, or indeed any intent whatever, or to establish any intent in evidence at the trial. In other cases a specific intent is described in the Article defining the offense ; of this the offenses defined in the 5th, 8ih, 14th, and 45tli Articles are examples, all of which offenses must be " knowingly" committed in order to warrant a conviction ; so, too, the offenses defined in the loth and 16th Articles must be " willfully " committed. Crimes nt common law, however, of which some are enumerated in the 58lh Article, must be charged and proved ■with the particular intent which is attributed to them at common law, as modified by- statute in the State in which they were committed. The word " feloniously " is properly used, as descriptive of the intent, when the act constitutes an offense punishable by imprisonment in a State pri.son or penitentiary under the ordinary criminal code, altliough, as a matter of military pleading, it is not essential if the offense is otherwise suflBciently set forth. Indeed it is only as a matter of precaution with respect to the 98lh Article of War that the word is used. » Dig. J. A. Gen., 224, par. 3. CHARGES AND SPECIFICATIONS. 71 specification describing not that but a difEerent specific offense, or a simple disorder or neglect of duty.' Exclusion of Evidence from Specifications. — It_ has been seen that the specification^shoald-contain a statement of the facts, constituting the offense — not T;he evidence by wh ioh__such facts are supported. Every offense, whether military or civil, is made up of certain elements of fact, that is, of certain acts or omissions which, combined with a particular intent, consti- tute such offense. It is these elements of fact and intent which should be alleged in the specification. " While, however, it is in general irregular to plead matter of evidence, there is no objection to noting in brief in the specification the immediate result or effect of the act charged, as a circum- stance of description illastrating the character and extent of the offense committed." ' General Terms : Specific Articles. — A charge expressed in too general terms is faulty and imperfect; this for the reason that the accused is entitled to know for what particular act he is called to account.' So, too, a charge expressed in the alternative — either under Art. 17 or Art. 60 — is irregular and defective, and, upon motion, may be stricken out or required to be amended.* Where an offense is clearly defined in a specific Article, it is irregular and improper to charge it under another specific Article. So where the Article in which the offense is defined makes it punishable with a specific punishment to the exclusion of any other, it is error to charge it under an Article, such as the 63d, which leaves the punishment to the discretion of the court. On the other hand, it is equally erroneous to charge under a specific Article, making mandatory a particular punishment, an offense properly charged only under Article 63.' ' Dig. J. A. Gen., p. 338, par. 13. * Dig. J. A. Gen., 333, par. 31. Thus while a homicide, if amounting to murder, and capital under Sec. 5339, Rev. Statutes, or by the law of the State, etc., cannot as such be made the subject of a military charge in time of peace, yet a capital homicide, where it has been committed in connection with or as a consequence of a specific military offense charged against the accused, — as, for example, "mutiny," or "offering violence to a superior officer," — may properly be staled in the conclusion of the specification, as mat- ter of aggravation and as indicating the animus of the accused or the amount of force employed. IMd. " Dig. J. A. Gen., 336, par. 34. Thus a specification under Art. 63, in a case of an officer, wliicli set forth, not a specific act of offense, but an habitual course bf con- duct as incapacilatiiig the accused for service or for the performance of his proper duty, held seriously defective and subject to be stricken out on motion. For such con- duct indeed the remedy i' not by charge and triil, but by retirement under Sec. 1253, Bev. Sts. Ibid. * Ibid., par 35. ' Ibid.. 335, par. 4. Such loose and indefinite forms of charge as "fraud," " worthlessness," "inefficiency," "habitual drunkenness," and the like, will be avoided by good pleaders. Such charges indeed, in connection with specifications setting forth actual military neglects or disorders (not properly chargeable under spe- cific Articles), may be sustained as equivalent to charges of "conduct to the prejudice of good order and military discipline " But a charge of " worthlessness," with specifi- cations setting forth repeated instances of arrests, confinements in the guard-house, or '^2 MILITARY LAW. Number of Charges, etc. — An accused person may be brought to trial upon any number of separate charges and. specifications; such number, indeed, being limited only by the number of separate offenses which may have been committed. Where, however, there are two sets of charges against an accused, they should if practicable be consolidated, and one trial be had upon the whole, instead of two trials, one upon each set. ' Charges under Several Forms. — The prosecution is at liberty to charge an act under' two or more forms, where it is doubtful under which it will more properly be brought by the testimony." In the military practice the accused is not entitled to call upon the prosecution to elect under which charge it will proceed in such or indeed any case.' Allegations as to Persons. — The accused should be described in the charges and specifications by his true name, and should be further designated by his correct rank and station, or title of office, in the military service. It is not esaeatial to state in a specification the full Christian na me of the trials and convictions for slight ofEenses, of the accused, AeM an insuflScient pleading ; such instances not constituting military offenses, hut merely the punishments or penal consequences of such offenses. (What is really called for in such a case is a discharge of the soldier under the 4th Article of War.) A specification averring a general inca- pacity induced by habitual intoxication does not set forth a military offense. The accused in such a case should he charged with the acts of diunkeuness committed, as separate and distinct instances of offense. Ibid., 227, par. 10. Where a specific offense is charged (i.e., an offense made punishable by an Article olher than the general — 68d — Article), and the specification does not state facts constituting such specific offense, the pleading will he insvifficient as a pleading of that offense. Legal effect may, however, be given to a pleading if the charge and specification taken together amount to an allegation of an offense cognizable by a court-martial under Art, 62. And in all cases, — whatever be the form of the charge or specification. — if the two are not inconsistent, and, taken together, make out an averment of a neglect or disorder punishable under this general Article, the pleading will be sufficient in law and will constitute a legal basis for conviction and sentence. Hid., 226, par. 6. ' Ibid., 237, par, 9, But after the accused has been arraigned upon certain charges, and has pleaded thereto, and the trial on the same has been entered upon, new and additional charges, which the accused has had no notice to defend, cannot be introduced or the accused required to plead thereto. Such chaiges should be made the subject of a separate trial, upon which the accused may he enabled properly to exercise the right of challenge to the court and effectively to plead and defend. As to the further ob- jection to such charges that the court would not be qualified to try them under its oath, see The Arraignment in the chapter entitled The Trial. » See General Orders No. 71, A. G. O., 1879. ' Dig. J, A. Gen., 237, par. 8. So, too, where a particular act or omission consti- tutes a violation of more than one Article of War, as of the 60th and 61st, or the 61st and 62d, the offense may be charged under both ;* undue multiplication, however, of chargee, or forms of charge, is to be avoided : thus charges should not in general be added for minor offenses which were simply acts included in and going lo make up graver offenses duly charged. It may, indeed, sometimes be expedient where the of- fenses are slight in themselves, and it is deemed desirable to exhibit a continued course of conduct, to wait, before preferring charges, till a series of similar acts have been committed, provided the period be not unreasonably prolonged ; but in general charges should be preferred and brought to trial immediately or presently upon the commission of the offenses. Anything like an accumvlation, or saving up, of charges, through a hostile animus on the part of the accuser, is discountenanced by the sentiment of the service, f Dig. J. A. G«n., 226, par. 7. * " For the purpose of meeting the evidence as it may transpire." State vs. Bell, 27 Md., 675, + See G. C. M. O, 71, Hdqrs. ot the Army, 1879, CHAR0E8 AND SPBOIFIOATIONa. 73 accused,__oi^otlier party regujred to J)e indicated. Only such.: name or initial need be gir-e-H- as^will be sufflcient—to., unmistakably identify ttje - party.' • Allegations as to Time and Place. — The time and place of the commis- sion of the offense charged should properly be averred in the specification, in order that it may "appear that the offense was committed within the period of limitation fixed by the 103d Article, and enable the accused to understand what particular act or omission he is called upon to defend." A reasonably exact allegation of the time is also important in some cases — especially those of desertion and absence without leave^n order that the accused, if subse- quently brought to trial for the same offense or, what is the same thing in law, for an offense included in the original offense, may be enabled (by a production and exhibition of the record) properly to plead a former acquittal or conyiction of that offense.' Where the exact time or place of the commission of the offense is not known it is frequently preferable to allege it as having occurred " |i» or about " a certain date or time, or " at or near " a certain locality, rather than to aver it as committed on a particular day or between two specified days, or at a particular place. There is no definite construction to be placed upon the words " on or about " as used in the allegation of time in a specifi- cation. The phrase cannot be said to cover any precise number of days or latitude in time. It is ordinarily used in military pleading for the purpose of indicating, in cases where the exact day cannot well be named, some period, as nearly as can be ascertained and set forth, at or during which the offenses charged are believed to have been committed. And the same is to be said as to the use of the words " at or near " in connection with the aver- ment of place. These terms " on or about " and "at or near '^ are, how- ' Dig. J. A. Gen., 229, par. 13. A misnaming or misdescription of tlie ranlc of the accused in the specification should be taken advantage of by exception in the nature of a plea in abatement. Where not objected to, the error is immaterial after sentence, provided the accused is sufficiently identified by the testimony, etc. * Wliere a specification to a charge preferred by a superior against an inferior oflicer, instead of referring to the former in the third person, alleged that the accused addressed abusive language to "me," and committed an assault upon "me," without naming or otherwise indicating the subject of the abuse or assault, held thiit such a form, though supported by some of the English precedents, was not sanctioned by our practice, and that, on objection being made to the same by the accused, the court would properly either require that the specification be amended, or that, in incorporating the charge in the record, the name of the preferring oflacer be added. IMd., 229, par. 14. ' As to the latitude allowiible in the allegation of time in military pleadings, com- pare 1 Opins. Att.-Geu., 295, 6. In the civil practice " nothing is better settled than that proof of guilt is not con- fined to the day mentioned in the indictment. It may extend back to any period previous to the finding of the hill and within the statutory limit for prosecuting the oflEense." McBryde m. State, 34 Ga., 203. » Dig. J. A. Gen., 230, par. 17. * See the article entitled Pleading in the chapter relating to the Trial. 74 MILITARY LAW. ever, not nnfreqnently (though unnecessarily') employed in practice where the exact time or place is known and can readily be alleged.' Where the offense charged is one of omission the same exactness in the averment of time is in general scarcely required as where it is one of the commission of a specific act. It is sufficient in the former case to allege that the offense occurred between certain named dates not unreasonably separated." Where time or place is omitted to be averred, or is averred without suffi- cient definiteness, and the defect is excepted to by the accused on being called upon to plead, the court will properly direct that an amendment be made. But where no such objection, is interposed by the accused, the proceedings will be sufficient in law, provided the time and place of the offense can be ascertained with reasonable certainty from the testimony taken in connection with the specifications. If otherwise, the proceedings will, where practicable, be returned to the court for correction, or, where this cannot be done, they will in general properly be disapproved. And where the offense is alleged to have been committed on a particular day and the evidence shows that it was committed on quite a different day, in such case, provided time is not of the essence of the offense, and the specific act charged is sufficiently identified by the other testimony, the variance between the allegation and the proof will not constitute a fatal defect, and need not induce a disapproval of the sentence where there has been a conviction. A return, however, of the record to the court for correction, if practicable, would properly be resorted to, by the reviewing officer, before taking final action.' ■ Dig. J. A. Gen. , 230, par. 18. Wbere a specification alleged that the accused was absent without leave at various times between two dates twenty days apart, held that the same was defective and subject to exception as being double, each such absence being a substantive and distinct ofEeuse.* But where the specification to a charge of violation of the 60th Article alleged the presentation by the accused of a fraudulent claim for rations furnished for recruits and also for lodgings furnished for the same recruits at the same time, held that the specification related to one transaction and was not, therefore, to be necessarily regarded as double or defective, in view of the liberal rules of pleading appli- cable to military charges. Ibid., 239, par 15. 'Ibid., 231, par. 19. So an ofiEense of commission which probably was not com- pleted, or may not have been completed, on any particular day may be similarly charged. Thus Iield tluit the allegations of time and place were sufficient in a specifica- tion in which it was set forth that the offense charged (which consisted in an improper disposition of public properly) was committed by the accused "while en route between Austin, Texas, and Waco, Texas, between the 5th and 25lh days of May, 1867." Ibid. But where it was alleged in a specification that the accused was drunk on duty at some lime or times during a period of seventy days, 7ield that the specification did not give sufllcient notice to the accused of the specific offense which he was required to defend, and was therefore uncertain and insufficient.f Hid. 2 Dig. J. A. Gen., 331, par. 30. * In the military as in the civil practice double pleading— i.e., speciflcations setting forth two (or more) distinct offenses (especially when-charg:eable under different Articles of War)— is properly con- -demned, and in sundry ca.ses the conviction and sentence have been disappi'oved on account of the du- plicity in law of the pleadinRs. See G. C. M. O. 80, War Department, 1875 ; G. O. 3, 83, Department of the Missouri. 1863; id., 49, Department of the Ohio, 1804. t Compare cases in General Orders 193, Army of the Potomac, 1862 ; do; 98, Department of New Mexico, 1883. OHARGEa AND 8PEGIFI0ATI0NS. 75 ' Documents, Oral Statements, etc. — A specification in alleging the viola- tion of an order which has been given in -writing, or of any written obligation — as an oath of allegiance, parole, etc., — should preferably set forth th? writing verbatim, or at least state fully its substance, and then clearly detail the act or acts which constituted its supposed violation.' Oral statement* should, wherever practicable, be set forth precisely as made or uttered; it alleged in substance, they should be so fully set forth as to leave no doubt as to their character or purport. Amendments of Charges. — A_jnaterial amendment of a charge should properly be made before the_ actual^ trial? WjEere a'court^martial, after the trial was concluded'^ directeiijLS.Bfi£ification to be amended bo as to render it more dejinite^j^^ time and_.place,. and then caused the accused to be arraigned and to plead over again, its action was held to be without sanction of law or precedent." Withdrawal of Charges. — A withdrawal of charges constitutes no legal', bar to their being subsequently revived and re-preferred. Charges, however, once formally withdrawn will not in general properly be revived except upon new material evidence being obtained. Charges once accepted as s~ sufficient basis for action, by the commander competent to convene a court for their trial, cannot properly be withdrawn except by his authority." List of Witnesses. — The Regulations require that charges formally pre- ferred against officers, enlisted men, or other persons amenable to military jurisdiction shall be accompanied by lists of the witnesses relied upon to substantiate the charges so preferred. Such a list of the proposed witnesses, however, is no part of the military charge. In serving upon the accused a copy of the charge s, it is not . essential, though the better practice, to add a copy of the hst of witnesses where one is appended, to .the originaLchatg.e& Append ing such a list^ however, does, not preclude the prosecution^ Jrom calling witnesses not named therein.* Joint Charges. — Properly to warrant ^e joining of several persons in the same charge and the bringing them to trial together thereon, the offense must be s uch as requires for its comnussion^a_^ coinbination _of action, and must have been committed b y the aqcused in co ncert, or in pursuance of a ' Dig. J. A. Gen., 230. par. 16. * Ibid., 236, par. 38. How far charges maybe amendedby the judge-advocate before the organization of the court depends mainly upon his authority, general or special, to maku amendments. After the arraignment amendments of form may always be made, wiih the assent of the accused or by the direction of the court ; and so may slight amendments of substance not so modifying the pleading as to make it a charge of a new and distinct ofEeuse. An amendment so substantial as materially to modify the "mat- ter " before the court will not in general be authorized, and any amendment whatever of substance should be alloweil by the court with caution and subject to the right of the accused to apply for a continuance. Ibid., 234, par. 28. ^ 3 Utid., 234, par. 27. I , / / /^ (A *iW(?.,335, par. 29. \ _ [ ( — VJ I '?'6 MILITARY LAW. I common ^iptenl;. The mere fact of their committing the same offense together and at the same time, although material as going to show concert, does not necessarily establish it. Thus the fact that several soldiers have absented themselves together without leave will not, in the absence of evi- dence indicating a conspiracy or concert of action, justify their being arraigned together on a common charge, for they may have been availing themselves merely of the same convenient opportunity for leaving their station.' Character of Oflfense, Military or Civil. — As to whether an act which is a civil crime is also a military oilense, no rule can be laid down which will cover all cases, for the reason that what may be a military offense under cer- tain circumstances may lose that character under others. For instance, larceny by a soldier from a civilian is not always a military crime, but it may become such in consequence of the particular features, surroundings, or locality of the. act. What these may be cannot be anticipated with a iweeping rule comprehensive enough to provide for every possible combina- tion of circumstances. Each case must be considered on its own facts. But if the act be committed on a military reservation, or other ground occupied by the army, or in its neighborhood, so as to be in the constructive presence of the army; or if committed while on duty, particularly if the injury be to a member of the community whom it is the offender's duty to protect; or if committed in the presence of other soldiers, or while in uniform; or if the offender use his military position, or that of another, for the purpose of intimidation or other unlawful influence or object, — such facts would be sufficient to make it prejudicial to military discipline within the meaning of the 6M Article of War." / By Whom Preferred. — Any_officer may prefer charges; an officer is not / <3iMlliijlifls.d from preferring charges by the facj that he is himself under ! charges or in arrest. Charges should be preferred to the authority empQwefc3~fo~^"iivene the court for their trial and signed by the officer submitting them. The signing of charges, like orders, with the name of an officer, adding " by the order of" his commander, is unusual and objecr tionabl^. Where charges are not signed voluntarily by the officer by ' Dio' J. A. G-eu, , 233. par. 23. Desertion, of which the gist Is a certain personal intent, is not ( :'ainarily charijeable as a joint ofEense.* Where two or more soldiers have deserte'd together as tiie result of a concerted plan, they may properly be jointly charged ■with " conspiracy to desert, to the prejudice of good order and militjiry discipline " (or with desertion, in the execution of a conspiracy— G. O, 21, A. G. O. of 1891), or each offender, in addition to being charged with desertion, may also be severally charged witli engaging in such couspiilacy. In the absence of such additional charge, the fact of coacert may of course be put in evidence under the charge of desertion as illustrating the 'animu» of the act committed. Ibid. ^- r-'^M'.ifflial for Courts-marlial, 16, par. 7. * See G. O. T8, War Dept., 1872, issued by the Secretary ot War in accordance with opinions, pre- viously gaven, of the Judge-Advocace General. CHABQES AND SPECIFICATIONS. 77 whom they are preferred, they are, in practice, usually subscribed by the judge-adTocate of the court.' 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 cognizant of a serious ofEense coramitted by an oflBcer or soldier to bring it to the attention of the proper commander. So a charge may originate with an enlisted man. But, by the usage of the ser- vice, all military charges should be formally preferred by, i.e., authenticated by the signature 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.' When Preferred. — Charges should be preferred so soon as the commis- sion of the ofEense has been observed by or made known to the officer pre- ferring them, or within a reasonable time thereafter. Charges so preferred carry with them a presumption of good faith and the assurance that they have been brought in the interest of discipline, and with a view to their being brought to trial while the facts are fresh in the minds of the witnesses. Charges unreasonably delayed carry no such presumption, and the delay, unless explained, gives ground for the belief that some other consideration than the good of the service has been instrumental in their preparation.^ Previous Convictions. — With a view to enable the convening authority to determine the form of tribunal to which a particular set of charges should be referred for trial, and to enable the court to determine the proper measure of punishment to be awarded upon conviction, the Regulations require that charges against enlisted men shall be accompanied by evidence of such pre- ' Ibid., 333, par. 24. An objection that a charge is not signed should be taken at the arraignment, when the omission may be supplied by tlie judge-advocate's affixing his signature. By pleading the general issue the accused waives the objection. Ibid., 335, par. 82. But to be taken cognizance of by the court it is not essential that a charge should be signed by any ofB(-er. II', though not so signed, it be duly officially transmitted by the convening c immander, or other competent superior authority to the court, either directly or tliroiigli the judge-advocate, "for trial," or "for the action of the court," or in terras to siicli effect, it is sufficiently authenticated for the purposes of trial, and trial upon it may be proceeded witli by arraignment thereon of the accused. Ibid , par. 33. Though charges are prepared in the Office of the Judge- Advocate General, they are not to be signed by him. If not signed by the officer actually preferring them, Ihcy will properly be authenticated by the signature of the Acting Judge- Advocate of the Depart- ment, or, preferably, by the judge advocate of the court. Ibid., par. 31. 2 Dig. J. A. Gen, 230, par. 33. 'It is a reprehensible practice to allow charges to lie long dormant before being preferred. Charges should not be delayed, but should be brought to trial as soon as t)racticable and while the evidence is fresh. A delay of five monilis remarked upon as prejudicial to the administration of justice and unfair to the accused. Ibid.. 385, par. 30. All the offenses with which an officer or soldier may be at one time chargeable should, if practicable, (and if the same are sufficiently grave,) be charged and brought to trial together. Ibid., 326, par. 7. 78 MILITABT LAW. vious convictions as have been recorded against the accused during the j period of twelye_mfin±hs_next preceding the preparation and submission of / the_chaxges. ' I ' By "previous conviction" is meant a conviction by a duly authorized military tribunal, the sentence of which has been approved by the proper reviewing authority.' Such previous convictions, however, are not limited to those for offenses similar to the one for which the accused is on trial, as the purpose in requiring them to be submitted is to see if the prisoner is an old offender, and therefore less entitled to leniency than if on trial for his first offMise. This information might not be fully obtained if evidence of previ- ous convictions of similar offenses only were laid before the court. It has no bearing upon the question of guilt of the particular charge on trial, but only upon the amount and kind of punishment to be awarded, and to this end it is proper that all previous convictions should be known. As the accused is not on trial for the offenses, evidence of previous convictions of which it is proposed to introduce, the 103d Article of War cannot be held to apply.' How Prepared and Submitted. — To accomplish this purpose the evidence of previous convictions must be submitted in such form as to ensure its admission and consideration by the court to which it is referred ; it should therefore be prepared in accordance with the rules, hereafter to be explained, regulating the admissibility of documentary evidence. Previous convictions by courts-martial other than the summary court are proved by the records of th^ trials, or by duly authenticated orders promul- gating them. The proper evidence of previous convictions by summary courts is the copy of "the record furnished to company and other com- manders, as required by paragraph 932, Army Eegulations, or one furnished for the purpose, and certified to be a true copy by the post commander or adjutant.' / Convictions incurred during a prior enlistment_are not admi ssible; e x- / cept of desertion, and thgn only where the accused Is, undergoing trial_for I desertion.' Evidence of a previous conviction by a civil court is n ot admissible Jn._±hJls.-pnMjediire;' nor is eyidenee of a previous conviction 1 admissiHe_where_Jilia_£adirLgs. were disapproved by the proper reviewing 1 authorit^J^ ' Excculive Order of March 30. 1898. ' Wliere the post commander acts as the summary court no formal approval of the sentence is necessary. ' Maniml for Courts-martial, title "Previous Convictions." ■•See Manual for Courts- martial, title "Previous Convictions"; see, also, par. 939, A. R. 1895. ' Dig. J. A. Gen., 610, par. 5. » Jbid., 611, par. 6. ' Ibid., par. 7. The term '-previous conviction" as employed in the Executive Orders respecting maximum punishments means a conviction to which effect has been CHARGES AND SPECIFICATIONS. 79 Statement of Service: Surgeon's Report. — Charges against an enlisted man forwarded to the authority competent to order a general court-martial for his trial will also be accompanied by a statement of service in the pre- scribed form, setting forth the dates of his present and former enlistments, the character upon each of the discharges given him, and the date of his confinement for the offenses alleged in the charges. This statement is in- tended simply for the information of the convening authority and will not be introduced in evidence, nor made part of the record of the trial, but will be returned to the convening authority with the record. ' In case of a deserter the surgeon's report as to his physical fitness for service, required by par. 131 of the Army Eegulations, will also be for- warded.' Submission of Charges. — Charges preferred by commissioned officers are submitted to the officer authorized by law to convene a court for their trial; if the officer preferring them is serving at a military post or with a com- mand in the field, they are submitted through the proper commanding oflScer, who is required by regulations to investigate them and to certify that, in his opinion, the charges so submitted and investigated can be sustained." Action of Post Commander. — The post commander or the commanding officer of an organization in the field is required, upon the receipt of charges and specifications, to make such personal investigation as is sufficient to satisfy him (a) whether the case is one in which a trial is necessary to the interests of disciplined (3) if such trial Ts believed by him to be neces- sary, whetlT5l'~6he"EYl^efice"in support of the charges jijujchasto^warfaht a/ con^clion. 'lF~the case is one triable by a general court-martial only (a where the charges are preferred against a commissioned officer), he will foirward the charges to the proper convening authority accompanied by a certificate, in the form of an indorsement, to the effect that the charges have been formally investigated by him, and that, in his opinion, they can be sustained by the testimony of witnesses. ' given by the approval of tlie sentence by competent authority, and applies to the records of all trials except thiise had by a summary court where the post commander acts as the court and no approval .of tlie sentence is required by law. Ibid. See, also. Manual for Courts-martial, p. 19, note l..and Dig. J. A. Gen., bll, par. 8. ' Par 937, A. R. 1895. For form see Appendix. " An enlisted man apprehended or surrendering as a deserter, and whose trial for desertion is not barred by the statute of limitations, will be examined by a medical ofiBcer at the post wliere lie is received, and a report of this examination will be for- warded to department headquarters. If, on account of disease, age, or other permanent disability, tlie man is found unfit for service, the report, with the department commander's recommendation thereon, will be forwarded to the Adjutant-General of the Army. It the examinallDn shows that the man is fit for service, the department commander will bring him to trial or restore him to duty without trial as the interests of the Govern- ment may dictate. Par. 121, A. R. 189-"). ' Commanding officers will, before forwarding charges, personally investigate them, and by indorsement on the charges will certify that they have made such investigation, and whether, in their opinion, the charges can be sustained. Par. 928, A. R. 1895. 80 MILITAB7 LAW. Charges preferred for offenses cognizable by inferior courts will also be laid before the post commander, who will examine them as to the rank Of the accused and the nature of the offense. If he thinks that the accused should be brought to trial, he will cause him to be brought before the summary court, where he will be arraigued and tried in accordance with \ the prevailing court-martial practice. If the accused, being a non-commis- 1 sioned ofBcer, objects to being tried by a summary court, and requests a 1 trial by a regimental or garrison court, his request should, in general, he I 1 granted, and the proper inferior court convened for his trial. Against I such objection a summary court would, under the statute, be without juris- \diction to try the case of a non-commissioned officer, save with the authority W the officer competent to order his trial by general court-martial. Such authority, if granted, should be entered upon the record in order to show that the court acted with jurisdiction in the particular case. Action of Convening Authority. — It has been seen that the question whether a particular set of charges shall or shall not be brought to trial is to be determined in every case by the proper convening authority, who is responsible for the maintenance of discipline, and whose decision as to the necessity or propriety of a trial is final and conclusive.' " Commanding officers are not required to bring every dereliction of duty before a court for trial, but will endeavor to prevent their recurrence by admonitions, with- ' holding of privileges, and taking such steps as may be necessary to enforce their orders. " ' If, therefore, in the opinion of the convening authority the case is one of sufficient importance to discipline to warrant its reference to a court-martial, a proper military tribunal is appointed, or the charges are referred to an existing court for trial. Service of Charges upon the Accused. — The 71st Article of "War, which regulates in part the arrest of commissioned officers, requires the officer by whose order an accused officer has been arrested to " see that a copy of the charges on which he is to be tried is served upon him within eight days of his arrest, and that he is brought to trial within ten days thereafter." By custom of service enlisted men are also entitled to be informed of the nature of the charges for which they have been confined. Custom of service also 7 ■ ' See pariigrapli 931, A. R. 1895. * See, in I lie Manual for Couits-maitlal, Section IV of the chapter relating to charges and speciflualions. * In cases where charges preferred against an officer are appnrently susceptible of a reasonable explanation it is not unusual, especially where the charges are preferred by an inferior against a superior, to afford the officer charged an opportunity to make explanation before it he determined whether to bring him to trial. Dig. J. A. Gen., 334, par. 25. Cliiirges 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. Ibid., 283, par. 28. * Par. 930, A. R. 1895. CEABGE8 AND SPECIFICATIONS. 81 makes it the duty of the judge-advocate to furnish the accused with a copy of the charges upon which he is to be tried, within a reasonable time previous to the trial. It is thus seen that the same duty is imposed upon difEerent officers, but for different reasons ; and neither officer is responsible for a failure of the other to perform the duty thus imposed. Should such a failure of daty occur, however, the rights of an accused person cannot be prejudiced thereby, since he is entitled to receive a copy of the charges and specifications a sufficient time in advance of the trial to enable him to secure ■ the necessary witnesses, to obtain counsel, and to make proper preparations for his defense.' Although the 71st Article requires such service of charges to be made previous''' to the trial, the statutes are otherwise silent in this regard, and it can only be said in general terms that such time must be reasonable in amount.and sufficient, as above stated, to enable him to ad- equately prepare his defense. Should the time allowed be insufficient, however, that fact should be made the ground of an application to the court for postponement, under the 93d Article, or to the copvening authority for ' a reasonable delay in bringing the case to trial. 1 In the criminal practice of tlie United States courts an indictmpnt for treason must be served upon the accused three entire days previous to the trial ; indictments in capital cases must be similarly served at least two entire d.ays before the commencement of the trial. In United m. Curtis (4 Mason, 233) it was held that the requirement of two days meant two days before the trial of the case by the jury, and not two days before the arraigumeut. CHAPTEE VIII. THE INCIDENTS OF THE TRIAL. Meeting of the Court-martial. — The court assembles at the time and place mentioned in the convening order. The president takes his place at the head of the table, and the members take seats on either side of the president, in order of rank ' as named in the order appointing the court. The judge-advocate and the reporter, if there be one, take their places at the foot of the table ; where seats are also provided for the accused and his counsel, and for the particular witness who is undergoing examination.' During the informal meeting of the court, prior to the introduction and arraignment of the accased, any preliminary matters that may seem to demand its attention are brought up and disposed of. The judge-advocate then verifies the presence of the ofl&cers composing the detail ; absent mem- bers are noted, and such communications in writing as have been submitted in respect to such absence are read to the court and are noted in the record.' • Tiie relative rank of the members, as determined by the convening authority in the order appointing them, is iu general to be regarded as final. Dig. J. A. Gen., 88, par. 8 ; ibid. . 89, par. 2. In view of the repeal (by the Act of March 1, 1869) of the old 61st Article of War, an officer, except where specially assigned to duty according to his brevet rank by the President, is no longer entitled to precedence, on courts-martial or otherwise, by reason of his brevet rank. Dig. J. A. Gen., 198, par. 2. ' It is one of the most important duties of the judge-advocate to see that adequate preparations are made for the meeting of the court and the trial of the case or cases that are to come before It This includes the securing of suitable rooms and furniture, the provision, by timely requisitions, of the requisite stationery, and of such clericiil and messenger service as will be needed for the service of the court, and, if need be. a waiting- room for the witnesses. He should also see to it that the witnesses for the day are present at the opening of the trial, or that they are in readiness whenever their testimony IS required. ' A member of a court-martial, though strictly answerable only to the convfning authority for a neglect to be present at a session of the court, will properly, when pre- vented from attending, communicate the cause of his absence to the president or judge- advocate, so that the same may be entered iu the proceedings. Where a member, on reappearing after an absence from a session, fails to offer any explanaiion of such absence, it will be proper for the president of the court to ask of him such statement as to the cause of his absence as he may think proper to make. It need scarcely be added that the absence of a member does not affect the legality of the proceedings, provided a 82 THE INCIDENTS OF THE TRIAL. 83: If the statutory quoram is present, the court is now able to enter upon, the trial of a case; if less than a quorum is present the court can transact no business, but may adjourn from day to day to await the arrival of absent members. Or it may communicate the fact to the convening authority in order that their places may be supplied, or that such orders may be issued as the necessities of the case may require.' When the preliminary business has been disposed of, the judge-advocate- announces that he is ready to proceed to the trial of the accused person named in the convening order or, in all cases after the first, with the case next in order for trial. Introduction of the Accused. — The accused is then introduced by the judge-advocate. He appears in uniform, vvithout arms, if an ofiBcer or enlisted man, and without irons or fetters in any case ; that is, perfectly free from restraint as to his limbs and bodily movements; this in order that he may be absolutely free from embarrassment in making his defense." Except^ therefore, in an extreme case, as where, the accused being charged with an aggravated and heinous offense, there is reasonable ground to believe that he- will attempt to escape or to commit acts of violence, the keeping or placing quorum of members remain. Dig. J. A. Gen., 494, par. 2. See, also, 7 Opin. Att.-Gen.^ 101. It does not invalidate the proceedings of a court-martial that a member who has been present during a portion of the trial, and lias then absented himself during a portion, haa subsequently resumed his seat on the court and taken part in the trial and judgment. Nor is the legal validity- of the proceedings affected by the adding of a new member to the court pending the trial. In either case, however, the testimony which has been introduced and the material proceedings which have been had, while the new or absent member was not present, should be communicated to him before he enters or re-enters- upon his duties as a member. Dig. J. A. Gen., 494, par. 3. Such was the ruling of the Secretary of War on Genl. Hull's trial,* and this prece- dent was followed in repeated, though not frequent, cases during the late war. For a member, however, who has been absent during a substantial part of a trial to return and take part in a conviction and sentence is certainly a marked irregularity, and one which may well induce a disapproval of the findings and sentence in a case where there is reason to believe that the accused may have suffered material disadvantage from the member's action. It is understood of course to be that a member cannot legally resume his seat where, by his absenting himself, the court has been reduced below five members. It was indeed held by Attorney- General Berrien -f that a member nf a court-martial who has absented himself during the taking of testimony is disqualified to take part in the sentence. Attorney-General Gushing, however, held, in a later opinion, % that whether the absent member should resume his seat and act upon his return "must depend upon his own views of propriety." ' Strictly, communications from the convening authority to the court as such (and vice versa) should be made to (and by) the president as its organ ; communications relating to the conduct of the prosecution to (and by) the judge-advocate. Dig. J. A. Gen. , 318, par. 17. ' Dig. J. A. Gen., 334, par. 1. In order that he may not be embarrassed in making his defense, the accused party on trial before a court-martial should be subjected to no restraint other than such as may be necessary to enforce his presence ur prevent dis- orderly conduct on his part. Ibid. "Where an accused person appears before a court- * See the reply dated March 7, 1814, of the Secretary of War, Hon. John Armstrong, to the com- munication of the "acting special juJge advocate." Hon. Jtlartin Van Buren, submitting questions for the court. (Forbes' Trial of Hull, Appendix, pp. 38, 39.) ^ 2 Opin. Att.-Gen., 414. t 7 ibid., 98. 84 MILITARY LAW. of irons upon him while before the court will not be justified. Even in such a case it will be preferable to place an adequate guard over him.' The fact that the accused is an officer of high rank should not be regarded as constituting a ground for allowing him any special right or privilege in his defense before a court-martial. The administration of jas- tice by a military as by a civil court must be strictly impartial or it ceases to be pure. All persons on trial by the one species of tribunal, as by the other, are deemed to be equal before the law." Introduction of Counsel; — The counsel for the accused, if he desires sudi assistance, is then presented to the court by the judge-advocate. If theFe be objection to the introduction of counsel generally, or to the particular person offered by the accused in that capacity, or if the accused desires delay in order to enable him to secure the services of a particular person as counsel, such questions are disposed of at this time.' Stenographer. — If the case is one of sufficient importance to warrant the employment of a stenographer, the person employed in that capacity is now introduced, and sworn to the proper performance of his duties. * martial in iious, or uuder an}' other form of visible constraint, the court, through its ' president, should address the post commander, inviting his attention to the fact, witli a view to the removal of the restraint so imposed. It would then become the duty of the post commander to cause the irons, or other form of restraint, to be removed, or to show why a necessity exists for tlie unusual restraint employed. It the reasons seem sufficient to the court, the fact of restraint, with the reasons assigned therefor, should be entei'ed at large upon the record. If the reasons so assigned are not, in the opinion of the court, sufficient to warrant the unusual course pursued, the further trial of the case should be desisted from, and the matter presented to the convening officer for his action. See G. O. 88, Dept. Colorado, 1897. "The fact, however, that an accused soldier was tried with hands or feet in shackles, or with ball and chain attached, these having been omitted to be removed during the hearing before the court, does not, however reprehensible, affect the legal validity of the proceedings or sentence." Dig. J, A. Gen., 741. par. 3. ' Ibid.; see, also, ibid., 334, par. 1; G. C. M. O. 62, Dept. of the Missouri, 1877; do. 55, id., 1879; and, as to the civil practice, Lee m. State, 51 Miss., 566; People m. Har- rington, 43 Cal., 175. 2 Dig. J. A. Gen., 335, par. 4. ' See the title " Counsel for the Accused," under the heading "Officers of the Court," in the chapter entitled The Compositiok of CoTJRTSMAitTiAi,,. •■ The employment of a stenographic reporter, uuder Section 1203, Revised Statutes, is authorized for general courts only, and in cases where the convening authority con- siders it necessary. The convening authority may also, when necessary, authorize the detail of an enlisted man to assist the judge-advocate of a general court in preparing the record. Par. 958, A. R. 1893. When a reporter is employed under Section 1203, Revised Statutes, he will be paid not to exceed $10 a day during the whole period of absence from his residence, traveling or on duty, which shall be in full for taking and transcribing all notes, making such number of copies to be made at one writing as the judge-advocate may ' require, and, unless otherwise specially ordered by the Secretary of War, in full for all services rendered and expenses incurred by the reporter. In special cases, when authorized by the Secretary of War, stenographic reporters may be employed at rates not exceeding 35 cents per folio (one hundred words) for taking and transcribing the notes in shorthand, or 10 cents per folio for other notes, exhibits, and appendices. -Reporters will be paid by the Pay Department on the certificate of the judge-advocate. Par: 959, ibid. No person in the military or civil service of the Government can lawfully receive extra compensation for clerical duties performed for a military court. Par. 960, ibid. THE INCIDENTS OF THE TRIAL. 85 Clerk to Assist the Judge- Advocate. — la cases in which the services of a steaographic reporter are not deemed necessary, the Eegalations authorize the convening authority to detail an enlisted man to assist the judge-advocate of a general court-martial in the preparation of the record. ' Reading of the Convening Order. — The order convening the court, together with any orders subsequently issued ia modification thereof, is then read to the accused by the judge-advocate, both standing ; this with a view to apprise him of the composition of the court and to enable him to exercise intelligently the right of challenge. CHALLENGES. f Procedure.— The composition pf the court-martial having been made known to the accused by the reading of the convening order, together with any orders of subsequent date which have operated to modify the composi- tion of the court as originally constituted, he is asked by the Judge-advocate whether he objects to being tried by any member named in the order. If his reply be in the negative, the court proceeds at once to the arraignment ; if, on the other hand, the accused has objection to a member, he is required to exercise his right in this respect by challenging but one member at a time." Nature of the Bight. — The right of challenge in court-martial procedure is regulated by the 88th Articlj of War, which provides that " rnembejra_of t a court- martial mayj pe challenged by a prisoner, but onlj 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. " ' / ' Par. 958, A. R 1895. ^ 88th Article of "War. ^ This Article authorizes the exercise of the right of challenge before all courts except tield-officers' courts and suuimary courts. These courts are uot subject to be challenged, because, being composed of but one member, there is no authority provided which is competent to pass upon the validity of the challenge. Dig. Opin. J. A. Oen., 99, par. 1. The Article imposes no limitation upon the exercise of the right of challenge other tfian that " more than one member shall not be challenged at a time." Thus while the panel, or the court as a whole, is not subject to challenge, yet all the members may be challenged provided they are challenged separately. The Article contains no authority for challenging the jndge-advocate. Ibid., 103, par. 15. An otHcer cannot in general fitly or becomingly act as judge-advocate in a case in which he is personally interested as accuser or prosecutor. Where the judge-advocate had prepared the charges and was the accuser in the case and, moreover, entertained a strong personal prejudice or hosiility against the accused, held that he was ill-chosen to act as judge advocate espe- cially in the capacities of prosecuting official and adviser to the court. A personal animus against the accused is particularly unbefitting a judge-advocate in a case where ,the accused is not represented by counsel. One who without personal prejudice against .the accused, or interest in his conviction, has signed the charges as company commander may not improperly act as judge-advocate in the case. Ibid., 462, par. 26. ; , The court of itself cannot excuse a member in the absence of a eha,llenge. A member 86 MILITARY LAW. The terms of this statute restrict the general right of challenge in two important particulars: (1) A member may be challenged ouly fo r cause stated ; as a_conseqLuence, Jthat are cal led " peremptory challenges " in civ il proceHure are forbidden injthe practice of^courig::ffl,aElMl;-4?) .He, ma j chal - lenge but one member at a time ; from this rule^ it results that courts-martial are notpernutted to .,ente,rtaiu, as such, "challenges tothe arrajj'Mihat is, objections to the entire membership/ If such objections exist, the end sought may be attained by a plea to the jurisdiction, to be explained hereafter. How Exercised. — Every member of a court-martial enters upon the per- formance of his duty with the presumption of competency to try any case that may properly be brought before the tribunal of which he has been con- stituted a member. If he be objected to, therefore, the burden of proof rests upon the party making the challenge of establishing his incompetency. The result is to raise an issue in which both parties have a right to be heard, and which must be decided by the court by a preponderance of testimony ; the judgment, after hearing, being that the challenge is sustained and that the challenged member is excused from sitting, or that the challenge is not sustained and the challenged member will resume his seat. Pending deliberation upon the question of sustaining a challenge, the challenged member withdraws from the session of the court." Classification of Challenges. — It has been seen that only what are known as " challenges for cause" may, under the 88th Article, be offered to the membership of a court-martial. The challenges "for cause stated" thus authorized may be arranged into two classe s, prinQ ipal_ chal lenges and challenges to the favor. A^ principal challenge is one in which, when the ground_of challenge 1ms been established, the challenged member is excus ed from sitting as a matterof course. A challenge to the favor is one alleging bias, prejudice, or .interest, to exist, andTwKcF^may or may~not be sus-. tainedTt he question d epending upon the nature and amountof the in terest, or prejudice, agjietermined by the admission of the member or by the evi- dence submitted in jts^ support.' ~" not challenged but considering Limself disqiialifled can be relieved only by application to the convening authority. Dig. Opiu. J. A. Gen., 103, par. 16. ' An accused challenged tbe entire court on the ground that the convening officer was "accuser." Held properly overruled; the array cannot be challenged at military law. The Article declares that " the court . . . shall not receive a challenge to more than one member at a time." Ibid., par. 17. * It is not necessary (though usual and proper) for a member to withdraw from the court-room on being challenged and pending the deliberation on the objection. Ibid., par. 11. See, also, in connection with the subject of challenges, Macomb, §S5 45-49; O'Brien, 236; DeHart. 114-127; Benet, 79; Ives, 89; "Winthrop, 279; Tytl'er, 115; Simmons, §495; Clode, Mil. Law, 111; Man. Mil. Law, 388; Man. for Courts- martial, 26, 27; Dig. J. A. Gen., 99-103. • The distinction here noted is one that is now peculiar to military tribunals, and is THE INOIDENTB OF THE TRIAL. 87 ■Waiver of Challenge. — An objection to the competency of a member must, as a general rule, be brought before the arraignment; and if the accused is aware of its existence at that time and fails to bring it forward, he will be deemed to have waived his right of challenge as to such member or cause of objection.' Should a challenge be regularly made but improperly overruled by the court, such waiver on the part of the accused is presumed not to have been made, and be is entitled to whatever benefit may accrue in consequence of the erroneous action of the court.' Should the fact that a member is liable to objection, however, be developed at a later stage of the proceedings, such ground of objection being unknown to the accused when the opportunity for challenge was afforded him, the court, in the exercise of a reasonable discretion, may permit the objection to be raised at any stage of the trial. ^ Challenges by the Judge-Advocate. — After the right of challenge has been completely exercised by the accused, the judge-advocate may interpose objections to competency in behalf of the United States. Incompetency, How Established.— Th e incompeten cy of a member may be establi shed by the voluntary admission of the challenged member, by the testi mouy of.. witnesses, or by the^ examination of -the-meiftber on his voir diT^eS-^apx^on. the statement of the ground of challenge, its sufficiency or propriety is admitted by the member, he is excused from further duty as a member. To warrant this course, however, the objection alleged must be sufiEicient in itself to warrant the court in sustaining it had it been established recognized to exist, in respect to challenges to petit-jurors, in but a few jurisdictions in the United States. In those States in which the distinction still exists principal challenges are tried by the court, and challenges to the favor by triers. ' Keyes m. U. S., loCt. Cls., 533; Brewer es. Jacobs, 23 F. R., 317; Mina vs. Hepburn, 7 Cr., 290 ; Pitlsfield vs. Burnstead, 40 N. H., 477 ; Clark vs. Van Vrancken, 20 Barber (N. Y.), 278; Ripley ««. Coolidge, Minor(Ala.), 11; Glover vs. Woolsey, Dudley (Ga.), 85; State vs. Bunger, 14 La. Ann., 461; Hallock vs. Franklin, 2 Met. (Mass.), 558; Wickers- bam vs. People, 2 111., 138. See, also, opinion of the Attorney-General of January 19, 1878, (15 Opins., 433,) in which the opinion expressed bythe Judge- Advocate General in the most recent of the cases upon which this paragraph is based — ihat the fact that one of the charges upon which the accused was convicted was preferred by a member of the court, who also testified as a witness on the trinl (but who, though clearly subject to objection, was not challenged by the accused) could not afEect the validity of the sentence of dismissal after the same had been duly confirmed — is concurred in by the Attorney- <3reneral. Dig. J. A. Gen., 103, par. 14, note 1. ^ The i&vx that a sufficient cause of challenge exists against a member, but, through ignorance of his rights, is not taken advantage of by the accused, or if asserted is im- properly overruled by the court, can afflect in no manner the validity in law of the proceedings or sentence, though it may sometimes properly furnish occasion for a dis- approval of the proceedings, etc., or a remission in whole or in part of the sentence. Ibid., pill-. 14. Where, before arraignment, the accused (an officer), without having personal knowl- edge of the exisience of cround of challenge to a member, had credible hearsay informa- tion of its existence, held that he should properly have raised the objection before the members were sworn, and that the court wms not in error in refusing to allow him t(? take it at a subsequent stage of the trial. Ibid., 102, par. 13. * Ibid., pars. 13, 14. * For form of voir dire, see p. 510, fost. »» MILITARY LAW. by the testimony of witnesses.' If testimony be introduced in support o\ the objection, the court will decide, after a full hearing, upon a preponder- ance of testimony, and will susbain the objection or refuse to sustain it in accordance with the weight of evridence submitted. If testimony be intro- duced in support of an objection, and if such testimony is not deemed sufficient in amount to warrant the court in excusing the member, the challenged member may be sworn on his voir dire, and questioned as to his competency to sit in the trial of the case.'' Grounds of Objection. Principal Challenges. — The distinction between principal challenges and challenges to the favor has already been explained.' Under the former it would constitute a valid ground of objection to a mem- ber that he had sat upon a previous trial of the same case, or was a member of a court of inquiry which had investigated the subject-matter, or had been required, as a matter of official duty, to investigate the circumstances and, as a result, to submit an opinion as to whether the case should be brought to trial. In the former cases the member has been compelled, by the sanction of an oath, to form an opinion upon evidence submitted in a legal investiga- tion ; " in the latter he has been required, by the operation of a lawful order, not only to form, but to give expression to, an opinion based upon personal inquiry into the facts of a particular case. Por the reasons above stated, it is the duty of a court-martial, the ground of objection having been shown to exist, to excuse the member from further attendance upon the court during the trial of the case. The Accuser ; Material Witness, etc. — It is ordinarily a sufficient ground j of challenge to a member that he is the author of the charges and is a \ I material witness^in the case. The mere fact that he is to^e a wj_tness_is not / in generaljgjie..held sufficient.'' So, too, the fact that a member signed or formally preferred the charges is not, of itself, a sufficient ground of objection, ' ' Courts should be liberal in passing upon challenges, but should not entertain an objection which is not specific, or allow one upon its mere assertion by the accused, ■without proof and in the absence of any admission on the part of the member. A posi- tive declaration by tlie challenged member to the efiect that be has no preindice or interest in the case will in general, in the absence of material evidence in support of the objection, justifj' the court in overruling it. Di,'. J A. Gen., 101, par. 18. ' Bishop, Crim. Proc., 934 ; Maxwell, 577 ; Wharton, Crim. Proc, 676; Thompson on Trials, 103. ^ Held that the members of a court-martial who had composed a previous court b}' whicli the same accused had been tried for the same act, though under a different charge, were all subject to be set aside on challenge. Dig. J. A. Gen., 101, par. 10. Held suiflcient ground of challenge to a member, of a court-martial that he had pre- viously taken part in an invcsiigaliou of the same case before a court of inquiry, though sucli court did not express a formal opinion. Jbid.. par. 8. Held good ground of challenge to a member of a court-martial in a case of alleged theft by a soldier that such member bad been a member of a previous court of inquiry which had investigated the case and fixed the misappropriation of the property upon the accused. Ibid., par. 9. * Dig. J. A. Gen., 100, par. 3. THE INCIDENTB OF TEE TRIAL. 89 since he may have done so ministerially or by the order of a superior. Bat where a member, upon investigation or otherwise, has initiated or preferred the charges as accuser, or as prosecutor has caused them to be brought to trial, he is properly subject to challenge.' Opinion. — For an opinion to disqualify, it must be positive and decided in character and must have been formed after deliberation upon the facts in the case." In general it does not disqualify if it is based upon mere rumor, I J'' or upon statements in newspapers, if the member is able to say that he can give an impartial decision upon the evidence submitted.' If, however, such opinion has been based upon conversations with witnesses or formed by reading reports of testimony, it would operate as a cause of disqualification.'' Bias or Prejudice; Rank of Member. — The law contemplates that each member who sits in the trial of a case shall have a mind entirely free from bias or prejudice in respect to the accused ; if a member has such bias or preju- dice, or is interested iu the result of the trial, he is not able to act impartially, and so should not be permitted to pass upon the guilt or innocence of a person toward whom such bias or prejudice is entertained.' It is not good ' Dig. J. A. Geu., 100, par. 3. Thus, that a membei- had originated and preferred tlie charge for a disobedience of his own order was held good cause of challenge. So, la a case of a trial for an assault upon an officer, the fact that the officer upon whom the assault was committed, and who was the prosecuting witness, was a meujber of the court was htld to constitute complete cause of challenge to him as member. Ihid. That a member is the regiraenlal or company commander of the accused does not per se constitute sufficient ground of challenge. But such ground may exist where the commander has preferred the charges or where the relations between him and the accused have been sucli as to give rise to a presumption of prejudice. Ibid., 100, par, 4. , ' Reynolds »s. U. S., 98 U. S., 145; Armistead's Case, 11 Leigh (Va.), 659: Wormley's Case, 10 Gratt. (Va.), 65S; Neely »s. People, 13 111., 685; Staup vs. Commonwealth, 74 Pa., 1 ; Burr's Trial, 416; State vs. Rose, 33 Mo,, 346; Thompson rs. 'TJpdeeraff 8 W. Va , 639. . i' s - = Hopt vs. People, 120 U. S., 430 ; Brown vs. State, 70 Ind., 576 ; 13 Eng. & Amer. Cyc. of Law, 355. " VI Eiig. & Amqr. Cyc. of Law, 855, 356. » "Where a member before the trial had expressed an opinion, based upon a knowledge of the facts, that tlie accused .would be convicted whichever way he might plead, held that he had clearly prejudged the case, and that the court should have sustained an ohjection taken to him by the accused, although upon being challenged he declared that he was without prejudice. Dig. ,J. A. Gen., 100, par. 5. See G. C. M. O. 66, H. Q. A., 1879. A mere general opinion in regard to the impropriety of acts such as those charged against the accused, unaccompnnied by tiny opinion as to his guilt or innocence on the charges, is not a sufficient ground of objection under tliis Article. Ihid.. 103, rar 21 A member on being challengel for prejudice, declared ibtit be did not consider the accu-ed (an officer) a gentleman, rind would luit nssociate with liim, and that he had stated so; but he added at the saiue time thiit he was not prejurliced for or against him. Held, especially as one of the charges was "conduct unbecorhing an officer and a gentle- man," that tlie challenge was Improperly overruled by the court. Ibid., 100, par. 6. An. accused objected to a member on the ground that some time before he had had a disagreement with the member and thought that he "might be prejudiced." The member decliired that lie was conscious of no prejudice whatever, but that on the contniry, his feelings toward the accused were friendly. Held that the court erred in sustaining the chullenge. Ibid., 103, par., 19. The accused were Indian scouts charged with mutiny. Some of the members of ^ MILITAB T LA W. ground of challenge to a member, for example, that he is junior in rank to the accused, nor is it sufficient ground that tbe member will gain a step or *' file " in the line of promotion if the accused is dismissed. It is, however, a sufficient cause of challenge to a member that if the accused (an officer) be convicted and sentenced to be dismissed the member will thereby be entitled to immediate promotion.' CONTINUAN'CES. , Procedure. — The organization of the court having been effected and the accased and his counsel having been introduced, a motion for a continuance, that is, for a delay in proceeding with the trial, will properly be in order. ' The subject of continuances is regulated by the provisions of the 93d Article of War, which directs that " a court-martial shall, for reasonable cause, grant a continuance to either party, for such time and as often as may appear to be just: provided that if the prisoner be in close confinement the trial j shall not be delayed for a period longer than sixty days. ' ' Such application to entitle it to consideration must be supported by evidence, usually in the form of a duly executed affidavit, setting forth the reason for the delay; if it be to obtain the attendance of an absent witness, for example, it should distinctly appear that the witness is material " and why, and that the accused has used due diligence to procure his attendance, and has reasonable ground to believe, and does believe, that he will be able to procure such attendance within a reasonable time stated." " Causes for Delay or Postponement. — The sickness or enforced absence of a party, or of a material witness, is an example of a " reasonable cause " within the meaning of the Article. The fact that the charges and specificatioiis upon which an accused is arraigned differ, in a material particular, from those contained in the copy served upon him before arraignment may also consti- tute a sufficient ground for granting him additional time for the preparation of his defense.' It is in general good ground for a reasonable continuance the court, though disclaiming any prejudice against the accused personally, were aware that tliey were present at the oulljreak, and were fully apprised, from their own personal presence or knowledge of the circumstances, that the mutiny, which had involved liomicide, constituted a most aggravated offense of the class. Held that, as these mem- bers could scarcely avoid applying their impre-isions to the accused when shown to be coiine ted witli ihe disorder they would fairly have been subject to objection as triers. Dig. J. A. Gen., 103, par. 20. 'Ibid.. 101, p.'ir. 7. Whether the trial of an officer by officers of an inferior rank can be avoided or not is a question not for the accused or the court, but for the officer convening the court; and his decision (as indicated by the detail itself as made in the convening order) upon this point, as upon that of the number of members to be detailed, is conclusive. An officer, therefore, cannot successfully challenge a member because merely of being of a rank inferior to his own. Ibid., 89, par. 1. 2 Manual for Oourts-martial, 39, § 8. ' Dig. J. A. Gen., 109, par. 4. Whereafter arraignment a material and substantial amendment is allowed by the court to be made by the judge-advocate in a specification, THE INCIDENTB OF THE TRIAL. 91 that the accused needs time to procure the assistance of counsel, if it is made to appear that such counsel can probably be obtained within the time asked, and that the accused is not chargeable with remissness in not having already provided himself with counsel." Where " reasonable cause " is, in the judgment of the court, exhibited, the party is entitled to some continuance under the Article. A refusal, indeed, by the court to grant_,sush continuance will not invalidate the pro- ceedings, bu^ if the-accjised-has. thus been prejudiced in his defense, may properly cQnstitute_good.grpund for disapproving the sentence, or, f or.miii- gating or parti ally remitting jthepun ishmen t.' SWEARING OF THE COURT-MARTIAL. Swearing of Members. — The challenges offered by the accused and by the judge-advocate, if any such there be, having been disposed of, the the effect of which amendment is to necessitate or make desirable a further preparation for hid defense ou the part of the accused, a reasonable postponement for this purpose will in genera! properly be granled by tlie court. Dig J. A. Gen., 109, par. 5. 1 Ibid., 110, par. 6. See, also, G. C. M, O. 35, A. G. O. 1875. ^ Ibid., 109, par. 3. In making an application for a continuance or postponement under this Article on account of tlie absence of a witness, the conditions prescribed in section 8, p. 39, of the Manual for Courts-martial should in general be substantially observed. But while the court may refuse the application if these conditions be not followed, it may, in its discretion, refrain from insisting that the same be strictly com- plied with, and accept a modified form.* It sliould, however, in all cases require that the desired evidence appear or be shown to be material, and not merely cumulalive,f and that to await its production will not delay the trial for an unreasonable period. It should also, in general, before granting the continuance, be assured that the absence of the witness is not owing to apy neglect on the part of the upplitaut. This feature, however, will not be so much insisted upon in military as in civil cases.J Ibid., 108, par. 1. Where an accused soldier, by reason of his regiment having been moved a long distance since his arrest, was separated, at his trial, from certain witnesses material to his defense, held that he was entitled to a reasonable continuiince for the purpose of procuring tlieir attendance or their depositions. Ibid.. 109, par. 3. Postponements. — The foregoing procedure applies to coniiiiuanees, properly so called, that is, to delays during the tritil asked for and granted, in conformity with the provisions of the 93d Article of War. If, in advance of the trial, either party desires a postponement of the trial for any cause, " application therefor should properly jbe made to the convening authority before the accused is arraigned." Manual for Coui ts-martial, 39, par. 7. So, too, if, during the trial, extended delay becomes necessary, that is,, a delay transcending the power of the court-martial to grant under the Article, application therefor" will, when practicable, be made to the authority appointing the court. When made to the court, and if, in the opinion of the court, it is well founded, it will be referred to the convening authority to decide whether the court shall be adjourned or dissolved." Manual for Courts-miirtiiil, 39, par. 8. * It; is not the practice of courts-martial to admit oounter-affldavil:s from the opposite party as to wliat the absent witness would testify. And as to the civil practice, see Williams vs. State, 6 Nebraska, 334 + Compare People™. Thompson, 4 Cat., ?X>,; Parker vs. State, B5 Miss., 414. X A. military accused cannot be chargred with laches in not procnrinyr the attendance at his trial of a witness wlio is prevented from being: present by superior military authority. Thus in a case in G. O. 63, Dept. of Dakota, 18731 an accused soldier was held entitled to a continuance till the return of material witnesses then absent on an Indian expedition. It would properly be so held upon common-law principles, even independently of the positive terms of the Article. In Eex vs. D'Eoa, 1 W. Black., ."iU, it was declared by Lord iWansfleld that " no crime is so great, no proceedings so instantaneous, but that, upon sufficient grounds, the trial may be put off." &2 MILITARY LAW. members of the court and the judge-advocate are then duly and severally sworn; the court and the judge-advocate, together with the accused and his counsel, standing during the administration of the oaths. The oath pre- scribed by law for the members of the court-martial is administered by the judge-advocate in the following form: " You, A B, do swear that you will well and truly try and determine, according to evidence, the matter now before you between the United States of America and the prisoner to be tried, and that you will duly administer justice, without partiality, favor, or afEection, according to the provisions of the rules and articles for the government of the armies of the United States, and if any doubts should arise not explained by said articles, then according to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authority, except to the judge-advocate; neither will you disclose or discover the vote or opinion of any particular member of the court-martial unless required to give evidence thereof, as a witness, by a court of justice in due course of law. So help you God." ^ The 84th Article requires that the oath shall be taken, not by. the court as a whole, but by " each member." Where, therefore, all the members are sworn at the same time, the judge-advocate will address each member by name, thus: " You, A B, D, E P, etc., do swear that you will well and truly try," etc." Swearing of the Judge- Advocate. — The appropriate oath having been duly administered to the members of the court-martial, the oath prescribed by law for the judge-advocate is then administered to that officer by the presi- dent of the court. The judge-advocate's oath is in the following form: " You, A B, do swear that you will not disclose or discover the vote or opinion of any particular member of the court-martial unless required to give evidence thereof, as a witness, by a court of justice in due course of law ; nor divulge the sentence of the court to any but the proper authority until it shall be duly disclosed by the same. So help you God." ' ' 84th Article of War. The words "a court of iustice" are deemed to mean a civil or criminal court of the United States, or of a State,* etc., and not to include a court-martial, f A case can hnrdly be supposed in which it would become proper or disirable for a court-martial to inquire into the votes or opinions given in closed court by the members of another similar tribunal. Dig. J. A. Gen., 98, par. 6. 2 Dig. J. A. Gen., 97, par. 1. ' 8olh Article of War. Where the record of a trial failed to show that the court or the judge-advocate was sworn, held that the conviction and sentence were without legal validity. The qualification by swearing is enjoined as a necessary preliminary by Articles of War 84 and 85, and the record must show affirmatively whatever is made by * The onlv case -which has been met -with in which the members of a court-martial have been reqiiirert to disclose their votes by the prcess of a civil court is that of In re Mackenzie, 1 Pa. Law J. R., 356, in which the members of a naval eoui-t-martial were compelled, against their objections, to state their votes as given upon the findings at a particular trial. t In the present corresponding British Article the words " or a court-martial " are added after the words " a court of justice." THB INCIDENTS OF THE TRIAL. 9^ This Article makes the administering to the court of the form of oatli thereby prescribed an essential preliminary to its entering upon a trial.' Until the oath is taken as specified the court is not qualified " to try and determine." The arraignment of a prisoner and the reception of his plea — which is the commencement of the trial — before the court is sworn, is with- out legal effect. A member added to the court, after the members originally detailed hare been duly sworn, should be separately sworn by the judge-advocate in the full form prescribed by the Article ; otherwise he is not qualified to act as a member of the court. A member who prefers it may be affirmed instead of sworn.^ Obligation of the Oath. — The members are sworn to " well and truly try and determine the matter now before them," that is, the particular set of charges which has been furnished the accused and upon which he is presently to be arraigned and tried. Prom this it follows that " after the accused has been arraigned upon certain charges and has pleaded thereto, and trial on the same has been entered upon, new and additional charges which the accused has had no notice to defend caunot be introduced or the accused required to plead thereto. Such charges should be made the subject of a separate trial, upon which the accused may be enabled properly to exercise the right of challenge to the court, and effectively to plead and defend." ' The requirement of the oath that the court " will well and truly try and determine according to evidence," and " will duly administer justice without partiality, favor, or affection, etc., according to the provisions of the rules and articles for the government of the armies of the United States," imposes an obligation upon the members, in reaching a finding and in award- ing an appropriate senteuce, to exclude from their minds all considerations not derived from the evidence submitted during the trial, or from the appli- cation of the law to the facts as thus established in evidence. It is also a departure from the engagement expressed in the body of the oath — to try and determine according to evidence, and administer justice according to the Articles of War, etc. — -for a court-martial to determine a statute essential to its jurisdiction and the legality of its proceedings. Dig. J. A. Gea., 650, piir. Vi. See, al.-;o, Riinkle vs. U. S., 133 U., S., 586. ' See, ill this conucctiou. G. O. 1.5, Hdqrs. of Army, 1880, which, in directing that judge-advorates shall be detailed for regimental and garrison as well as general courts- martial, rescinds G. O. 49 of 1871, prescribing a special form of oath for the former courts, and thus provides for their taking the due and regular oath recited in Art. 84. ^ Dig. J. A. Gen., 97, par. 1. See, also. Section 1, Revised Statutes of the United States. ^ Dig J. A Gen., 97, par. 4; 337, par. 9. In a case, therefore, where, after the court had bevn sworn and I lie accused had been arraigned and had pleaded, an addi- tional charge, setting forth a new and distinct offense, was introduced into the case, and the accused was tried and convicted upon the same, — held that as to this cliarge the proceedings were fatallv defective, tlie court not having been sworn to try and determine such charge. Ibid., 97,"par. 3. See G. C. M. O. 39, War Dept., 1867 ; G. O. 13, Northern Dept., 1864. 94: MILITABT LAW. case either upon personal knowledge of the facts possessed by the members and not pat in evidence, or according to the private views of justice of the members independently of the provisions of the code.' The oath contains the added requirement that " if any doubt shall arise not explained by said articles," justice is to be done, as between the United States of America and the prisoner to be tried, " according to your conscience, the best of your understanding, and the custom of war in like cases." The doubts here referred to must originate in, and grow out of, the evidence sub- mitted during the trial of the case ; as from conflicting testimony, deficiency of testimony in certain pa,rticulars, or from want of credibility as to , par- ticular witnesses, such doubt can in no case be derived from mere speculative theories as to the probable existence or non-existence of facts, or their bear- ing upon the guilt or innocence of the accused. " Obligation to Secrecy. — " No sentence of a court-martial is complete or final until it has been duly approved. Until that period it is, strictly speak- ing, no more than an opinion which is subject to alteration or revision. In this interval the communication of that opinion could answer no ends of justice, but might in many cases tend to frustrate and defeat them. The obligation to perpetual secrecy, with respect to the opinions of the particular members of the court, is likewise founded on the wisest policy." This end is therefore best attained " by the confidence and security which every member possesses that his particular opinion is never to be divulged. Another reason, of yet stronger nature, is that the individual members of the court may not be exposed to the resentment of parties and their connec- tions, which can hardly fail to be excited by those sentences which it is often obligatory upon courts to award. It may be necessary for officers in the course of tbair duty daily to associate and frequently to be sent on the same command or service with a person against whom they have given an unfavorable vote or opinion on a court-martial. The publicity of these votes or opinions would create the most dangerous animosities, equally fatal to the peace and security of individuals and prejudicial to the public service." " It will be observed that the strict verbiage of the oath places the obliga- tion of secrecy upon " the sentence of the court " and upon " the vote or opinion of any member," but does not in express terms forbid a disclosure of the " finding." An inflexible custom of the service, however, brings this incident of the trial within the same restriction, and its disclosure would be authorized only in the event of the officer being required to give evidence, in respect to such finding, before a tribunal of competent jurisdiction. The ' Dig. J. A. Gen., 97, par. 3. Compare G. O. 21, Dept. of the Ohio, 1866; G. C. M. O. 41, Dept. of Texas, 1874. - U. S. vs. Newton, 52 Fed. Uep. , 275 ; Com. vs. Drum, 58 Pa. St. , 9. ^♦Macomb, § 51. TME INCIDENTS OF THE TRIAL. 95 excepting clause of the oath, authorizing the disclosure of the finding and sentence to the judge-advocate, has been made necessary by a recent enact- ment of Congress requiring that officer to withdraw from the presence of the court whenever it sits in closed session.' Oath of Judge-Advocate. — The oath which is taken by the judge-advo- cate contains the same obligation to secrecy as that administered to the members, except so far as it relates to the disclosure of the findings and sen- tence to the person who is empowered to approve or disapprove the sentence of the court. It is not inconsistent with his oath or duty for the judge- advocate to communicate to the proper authority his views respecting the proceedings of the court." Oaths of Members, etc., of Minor Courts-martial. — The oaths prescribed by law for the members and judge-advocates of general courts-martial are administered in the same manner and by the same persons to the corre- > Sec. 2, Act of July 27, 1893, (27 Stnt. at Large, 278). Where the vote of each member of Ihe court upon one of several specifications upon which the accused was tried was stated iu the record of trial, held that such statement was a clear violation of the oath of the court, though it did not affect the validiiy of the proceedings or sentence. A statement in the record of trial to tlie effect that all the members concurred in the finding or lu the sentence, wliile it does not vitiate the proceed- ings or sentence, is a direct violation of the oath prescribed by this Article. Dig. J. A. Gen., 97, par 4. The disclosing of the finding and sentence to a clerk by permitting liira lo remain with the court at the final deliberation and enter the judgment in the record is a viola- tion of the oath and a grave irregularity, though one which does not affect the validity of the proceedings or sentence. iWd.,98, par. 5. A court-martial, member of court, or judge-advocate cannot of course lawfully communicaie to a reporter or clerk, by allow- ing him to record the same or otherwise, the finding or sentence of the court. Before proceeding lo deliberate upon its finding tlie court should require the reporter or clerk, if it has one, to withdraw. But the fact that the finding or sentence or both may have been made known to the reporter or clerk of a court-martial cannot affect the legal validity of its proceedings or sentence. Ibid., 264, par. 1. Held that the reopening of the court, after a conviction, to receive evidence of pre- vious convictions was not a violiition of the 84th Article of War.* The procedure was designed to carry out the spirit of the legislation which excluded judge-advocates from closed sessions — to place prosecution and defense on a more equal footing, by allowing the accused to be present when evidence of previous convictions '\% submitted and to scrutinize the same and test their legality. IHd., 609, par. 1. Upon a proposed enactment providing that the members of courts-martial be allowed, at their own request, to have their individual votes upon the finding or sentence entered upon the record, admsed that the same be not favored by the Secretary of War. Such a proceeding would indeed relieve self-respecting members from being implicated in an unjust or irrational finding or sentence, but it would materially impair the effect of the judgment of the court if tlie composition of llie vote were to be thrown open to scrutiny and discussion. The proceeding indeed might readily, contrary to the .spirit of the 84th Article, disclose the votes of all the members — as wliere, in a court of nine. four, requested a record of their personal votes. Ibid , 413, par. 17. 2 Macomb, §52; O'Brien, 240-243 ; Bengt, 104-105; Ives, 113-121 ; Wintlirop, 318 ; Tytler, 119-131 ; Clode, Mil. Law, 113; Man. Mil. Law, 52, 389; Man. for Courts-mar- tial, 38; Dig. J. A. Gen., 96-98; Adye, 154; Harwood, 74, 75. * In a recent case this opinion was restated by the Judg-e- Advocate General in the foltowing; terms: " The opening of the court to hear evidence of previous convictions justifies tlie iiitereiici' that the accused lias been convicted, hut would not be such a disclosure as is meant by the 8-lth Article of War, But the oath does not specify and does not include the flndiner, and must be construed with reference to the present system, which is established by authority having the force of law. It violates neither the language nor, under our present system, (whatever it may have done before,) the spirit of tbs Article to open the court, after conviction, to hear evidence of previous convictions." 96 MILITARY LAW. spending officers of regimental and garrison courts, and have tlie same obligatory effect. The oificers composing field-officers' courts and tlie summary court, recently established by law, are not sworn as such, but perform their duties under the sanction of their respective oaths of office. Interpreter. — If the services of an interpreter are required, he is intro- duced and sworn at this sbage of the trial.' THE ARRAIGlirMENT. Pleadings. — The oaths required by law having been duly administered, the court, as a conseqaence, becomes a legal tribunal, and the power con- ferred upon it by statute to try military offenses becomes fully operative. A pleading, technically speaking, is the statement, iu a logical and legal form, of the facts constitutiug a particular cause of action or ground of defense. In this sense the indictment in a criminal trial, and the cliarges and specifi- cations in a court-martial trial, constitute a part of the pleadings in the case. The first pleading in a court-martial trial consists in the charges and specifi- cations preferred against the accused, to which he is required to make answer, an djjiis answer, which i s know n technically as the " plea," may consist in either_a special plea iu_bar, presently to bo expI ained,_xuLia.jjlea of " guilty " or " not g uilty " to eacK_of^tjie_ charges and sp^cifica^tions. In the latter case the a ccused is said to plea d the " general issue ," that is, to the merits of the case; and it is this plea upon which, in ordinary oases, the trial on the merits proceeds." The formal answers of the accused to the several charges and specifications, as they are read to him by the judge- advocate, are called "pleas," and the reading of such charges, and the taking of pleas in answer thereto, constitute what is known as the " arraign- ment." During the arraignment the judge-advocate and the accused and his counsel remain standing. Classification of Pleas. — The several pleas which an accused may inter- pose in answer to the charges preferred against him are classified according to their nature and effects into (1) pleas to the jurisdiction, (3) pleas in bar of trial, (3) pleas in abatement, and (4) pleas to the merits of the case, that is, to the " general issue." Pleas to the Jurisdiction. — It is a rule of law, applying to all courts of special or limited jurisdiction, that their records shall show affirmatively, as to each case tried, that the court fxted with full jurisdiction not only as to the offense itself, but also as to the person of the offender. In order, therefore, that a particular court-martial trial may be valid, the following conditions must be fulfilled : (1) the court itself must have been properly constituted; (2) the accused must be subject to its jurisdiction; and (3) the crime for which he is tried must be a military offense. A defect in • For form of interpreter's oath, see page 39, Manual for Courts-martial. * Bisbop, Criminal Procedure, § 743. THE mOIDENTS OF THE TRIAL. 97 rany one of these particulars will be fatal to the jurisdiction. An objection .going to a want of jurisdiction cannot be waived by the accused, for criminal courts derive their power to try cases from formally enacted statutes, and can never acquire jurisdiction by the mere consent of the accused, as expressed in his waiver of a well-grounded objection to its jurisdiction. It is for this reason that pleas to the jurisdiction are submitted first in the order of plead- ing; since an objection to the jurisdiction of the court must be disposed of before the court can take a single step in the direction of the trial.' Objections to the Constitution of the Court. — Under this head it may be alleged, by a plea to the jurisdiction, that the convening oflBcer is without authority to convene the court. It has been seen that the power to consti- tute courts-martial is conferred in express terms by statute; it has also been seen that such power, not being' subject to delegation, must be personally exercised in every case by the proper convening authority.' The several Articles conferring power to appoint courts-martial also make the convening officer the judge of the existence or non-existence of certain facts or conditions, as to the number of officers that can be assembled, and the rank of the officers composing a particular court; in such cases the decision of the convening officer, as expressed in the order appointing the court, is final, and is not subject to inquiry by the court-martial itself, or to subse- quent review by a civil tribunal." This question, however, is one which presents but little difficulty in practice; if the convening officer in point of rank and command conforms to the conditions specified in the statute, his power to appoint a court-martial under such statute is complete and, in general, will be sustained. Convening Officer as Accuser. — The convening officer may also stand, in respect to the accused, in the situation of an accuser or prosecutor; in which event the appointing power passes, by operation of law, to a superior officer therein designated." While, in general, the signing of the charges fixes upon the signer the character of an accuser, such signing is not always con- clusive as to the fact, and may be rebutted by evidence showing that the officer whose name is signed to the charges acted pro forma, or in a mere ministerial capacity. On the other hand, a convening officer may be the accuser in fact, and within the meaning of the statute, without affixing his signature to the charges, which, indeed, may be signed by another, as by a staff-officer or by the judge-advocate of the court-martial. ' Objections going to the legal constitution or composition of the court, or to its juris- diction, should properly he specially presented when the accused is first called upon to plead; valid objections of this radical character, however, are not waived if the accused, instead of submitting a special plea, pleads over to the merits, since consent cannot con^ fer jurisdiction where none. ejcists in law. Dig. J. A. Gen., 591, par. 9. ^ See the chapter entitled Jurisdiction of Courts-martial. ' 75th, 81st. and 82d Articles of War. ■• , . . * 73d and 73d Articles of Wiu-. 98 MILITABT LAW. Whether the convening oflBcer is or is not the accaser in a particular case will depend upon the animus; and where he himself initiates the charge out of a hostile animus toward the accused or a personal interest adverse to him, or from a similar motive adopts and makes his own a charge initiated by another, he is to be deemed art " accuser or prosecutor " within the Article. Nor is he the less so where, though he has no personal feeling or interest in the case, he has become possessed with the conviction that the accused is guilty and deserves punishment and, in this conviction, initiates or assumes as his own the charge or the prosecution. For in this case, as in the former, he is unfit to be & judge upon the merits of the case: in the one instance he is too much prejudiced to be qualified to do justice ; in the other he has condemned the accused beforehand.' "While the objection, if known to exist, should be taken at or before the arraignment, being one going to the legal constitution of the court, it may be raised at any stage of the proceedings ; and if its existence be not admitted by the prosecution, the accused is entitled to prove it like any other issue." Objections to the Composition of the Court-martial. — An objection may also be addressed to the composition of the court; as that the accused is a member of the militia forces, and that the court is composed wholly or in. part of regular officers. ' The validity of the plea in this case will be deter- mined by the description of the accused as stated in the charges or as estab- lished by the testimony submitted in support of the plea. It is only neces- sary to observe in this connection that while a regular officer, as such, may not sit as a member of a court for the trial of officers or enlisted men of the militia or other forces, he may lawfully do so by virtue of a separate com- mission in an organization of militia or volunteers.* Amenability of the Accused to Trial. — It is essential to the jurisdiction of a military tribunal that the person of the accused should be amenable to military jurisdiction. As to an officer, this is shown by the acceptance of his appointment or commission; and as to an enlisted man, by proof of his enlistment, or muster-in, or, in some cases, by his voluntary acquiescence in, or implied acceptance of, the status of a soldier, as evinced by the perform- ' Dig. J. A. Gen., 82, par. 7. See, also, the chapter entitled The Constitution of Courts-martial. ' IMd.. 84, par. 8. Or it may be taken to the reviewing officer with a view to his dis- approving the proceedings, or may be made to the President, aftei- the approval and' execution of the sentence, with a view to having the same declared invalid or to the obtaining of other appropriate relief. Tbid. Compare late opinion — to a somewhat similar effect — of the Attorney-General of August 1, 1878,* in which it is also held that where the record of the tiial fails to indicate that the convening officer was the "accuser or prosecutor" of the accused, the latter, in applying to the Secretary of War to have the proceedings pronounced invalid on this ground, may establish the fact by the production of affidamts setting forth the circum- stances of ihe case and the action of the commander. Ibid., 82, par. 8, note 1. ' 77tU Article of War ; Section 1658, Revised Statutes. • Ives, 29; Dig. J. A. Gen., 43 (edition of 1868). * 16 Opin. Att.-Gen. THE INCIDENTS OF TEE TRIAL. 99 ance of the duties and acceptance of the pay or emolnments attached to the position.* Whenever it is proposed to subject a civilian to trial by court- martial, his amenability to such trial must, as a rule, be shown to have been expressly conferred by statute.' If such statutory authority be wanting, in no case can it be conferred by the act of the accused ; either by an express waiver of objection to trial, or by an implied acceptance of the jurisdiction, as would be shown by his submitting the case to trial by a military tribunal.' In some cases — the inmates of the National Homes for Disabled Volunteer Soldiers, for example — even the express authority of a statute is not sufficient to warrant the trial of a citizen by a military court." It is proper to observe that the Articles of War subjecting civilians to trial by court-martial are ' Dig. J. A. Gen., 323, paragraphs 4-6; ibid.. 75, paragraphs 1-8. To give a court-marliiil jurisdictiou of the person of an officer or soldier charged with a military offeuse, it is not necessary that he shall have been subjected to any particular form of arrest, or that he shall have been arrested at all, or even ordered to attend the court. Here, as before a civil tribunal, his voluntary appearance and submission for trial is all that is esseutial. Ibid., p. 3i8, par. 11. In order to become amenable to the military iurisdiction , an officer or soldier must have been legally and fully admitted into the military service of the United States. Thus lield that an officer of State volunteers appointed by a governor of a State, but not yet mustered into the' United States service, was not amenable to the jurisdiction of a court-martial of the United Slates for an offense committed while engaged in recruiting service under the authority of the governor. Ibid., 323, par. 4. It cannot affect the aiithorilyof a court-martial to lake cognizance of the military offense involved in an injury committed by a soldier against an officer that before the trial the latter lias resigued or been otherwise separated from the Army. Ibid., 339, par. 13. Whether a soldier may legally be held araennble to trial by court-martial for an offeuse committed by liim while on furlough will depend upon the nature of the offense and the circumstances of his situation. In general, indeed, where he is thus absent at his home or at sucli a distance from his station and from troops that his offenses will not directly prejudice military discipline, he will not render himself amenable to the military jurisdictiou unless, indeed, he commits a desertion Ibid., par. 14.. See Manual for Courts-martial, p. 16, par. 7. The discharge of a soldier not taking effect till delivery, actual or constructive, held that a soldier who committed a military offense on the day on which he was to be dis- honorably discharged under sentence, but before the discharge was delivered to him (or to the officer in charge of the prison at which he was also to be confined under the same sentence), was amenable to the military jurisdiction for the trial and punishment of such offense as being still in the military service. Ibid.. 830, par 16. Seld that wiien the volunteer army to which a soldier belonged was, at the end of the late war, disbanded, soldiers absent in desertion ceased to be subject to military juris- diction and became civilians, but that their last military record was that of deserters, and that, as to them, the disbandmeut of the army did not operate as a discharge from the service. Ibid., par. 17. Held that an officer could not, by procuring himself to be, or consenting to being, placed under a conservator as an habitual drunkard, in the form prescribed by the local law, withdraw himself from the military jurisdiction; but that he remained amenable to trial and punishment for offenses committed prior to such proceeding and within the period of limitation. Ibid., 831, par. 19. Held that an MCquittal of a soldier by a civil court on an indictment for larceny was no bar to his trial by court-martial for the same act, charged under the 62d Article of War. And so held in a case of an acquittal by a civil court of an officer who had committed a homicide of another officer in the course of an altercation in the presence of enlisted men at a military post. Ibid., par. 31. » Ibid. , 3'J5, par. 7, and cases cited. » Ibid., 336, par. 8; 705, par. 2; 744, par. 4. i " ^ MILTTAR r LA W. not operative in time of peace : they become so only in time of war and in the immediate theatre of military operations.' ' The Offense Charged must be a Violation of Military Law.— It is a well- established principle of our constitutional law that there can be no criminal offense against the United States which has not been made such by an enact- ment of Congress. This principle applies with equal force to military offenses. In the chapter relating to Charges and Specifications it has been shown that a military charge to be valid must allege an offense which is based upon, or consists in, the violation of a particular statute or xirticle of "War; since no other offense, whatever its character or however harmful in its effects upon military discipline, is triable by a military tribunal. There are some cases, however, in which the authority of several statutes must be appealed to in order to constitute a military offense; one statute defining the crime, and the other conferring power upon a particular court-martial to try and punish the offense. The 58 th Article of War is an example of this class; the Article confers jurisdiction upon general courts- martial, in time of war, to try certain specific offenses therein named; for definitions of those offenses, however, the law of the State or, in the absence of a statutory definition, the common law must be referred to. In other cases courts-martial are given jurisdiction over certain wrongful acts which are not expressly described in the statute conferring jurisdiction, or are described only in general terms. Such is the case in respect to offenses included withia the terms of the 61st and 62d Articles of War. ^ — ^ Pleas in Bar of Trial. — It has been seen that a plea to the jurisdiction £L)*v denies the power of the court-martial to hear a case referred to it for trial. In s trictness a plea in bar of trial^a dn uts the jurisdi ction of the c ourt as to the class of cas es, and thegeneral_amenabyit2_oif the accused to trial, but, ■ fa| ; reasons stated, den^^^ -j^^ right of the court to try tjig par ticular case befote _it. Such a plea in bar would be appropriate in any one of the follow- ing cates: A IVevious Acquittal or Conviction of the Same Offense. — The Fifth Amendment to the Constitution provides that no person shall for the same offense " be twice put in jeopardy of life or limb." " A similar but some- what less extensive immunity is secured, as to offenders against military law, .if- ' Dig. J. A. Geu., 325, par. 7; 326. par. 8. It is inaccurately stated in the report of the case of Renner m. Bennett, 31 Ohio St., 434, (December, 1871,) that no inmate of ihe National Home had ever been subjected to a trial by court-raarlial. The instance re- ferred to in the Digest of Opinions of the Judge-Advocate General (page 339, par. 15',, however, is the only one known of such a trial. ' A person is in jeopardy when put upon trial, bofoi-e a court of competent juris- diction, under an indictment or Information sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance — that is, empaneled and sworn. Cooley, Const. Law, 337, 328, cases; Anderson, Law Diet., title Jeopardy, 573 and cases cited. But see Dig. J. A. Gen., 118, par. 1 : XJ. S. vs. Martin, 38 Fed. Rep , 812 ; Kelly vs. U. S., 37 ibid., 616 ; U. S. vs. Barnhart, 33 iUd., 385 ; U. S. vs. VanVleet. 22 ibid., 85. I I CO THE INVIDENTS OF THE TRIAL. l not rarely been made in cases like larceny, where several distinct elements are required to constitute a crime in law. For example, a soldier will plead guilty to a charge of larceny, and thereupon make a statement dis- claiming tlie peculiar intent {animus furandi) necessary to the offense, thus really admitting onl\f an unauthorized taking. In such cases the court will properly instruct the accused that he should change his plea to not guilty, and if he declines to do so will properly call upon the judge advocate to introduce evidence showing the actual offense committed. Ibid., 59ii, par. 6, '' Dig. J. A. Gen., 589, par. 4. It has not un frequently happened that enlisted men .charged with desertion have, in connection with a plea of guilty, made a statement disclaiming having had, in absenting themselves, any intention of abandoning the ser- vice, and stating facts which, if true, constitute absence withoutleave only. In such a case the accused cannot in general fairly be convicted of desertion in the absence of an investigation, and the court will properly, therefore, induce him to change his plea to not guilty, or direct this plea to be entered and take such evidence as may be attainable to show what ofleuse was actually committed.! Ibid., par. 5. See, also, note to par. ante. * See view< of the Jiidge-AdTOcate General, relating to the subject of this paragraph, published in G. C. M. O. 69, Hdqr.s. of Ai-my, 1877. + Tlie views of the Judge-Advocate General as presented above have been adopted in the General Orders of the Wai- Department and in numerous orders of the various military department, etc., com- mands. In G. C. M. O i. War Dept.. 1873, the Secretary of War observes, in regard to two cases of sol- diers, as follows: " The written statements submitted by the accused are contradictory of their pleas of ' guilty.' The court should have regardei these statempnts as neutralizing the effect of their pleas, and should have had the accused instructed as to their legal rights, and advised to change their pleas 'with a view to the hearing of testimony. It not untrequently happens that soldiers do not understand the legal difference between absence without leave and desertiiin. or are wholly unable to discriminate as to the grade of their offenses, as determined by their motives. They thus sometimes ignorantly ' plead guilty and are sentenced for crimes of which they may be actually innocent. The proceedings, findings, and sentences are disapproved." • And see G. C. M. O. 31, War Dept., 1876. 118 MILITARY LAW. Standing Mute. — The 89th Article of "War provides that " when a prisoner, arraigned before a general court-martial, from obstinacy and delib- erate design stands mate or answers foreign to the purpose, the court may proceed to trial and judgment as if the prisoner had pleaded not guilty." In the early history ©f criminal trials in England there was a doubt as to whether a person could be convicted of felony and punished capitally who had not entered a formal plea of guilty or not guilty to an indictment for a crime amounting to felony at common law. This doubt was removed by statute in England in 1772,' and the practice of courts-martial in this respect was made to conform to that of the criminal courts by the insertion of an appropriate provision in the Articles of War. The provision so inserted was embodied, substantially in its present form, in the American Articles of 1776. It will be observed, however, that the 89th Article prescribes a form of procedure where the prisoner " from obstinacy and deliberate design stands mute or answers foreign to the purpose," Where the failure to plead results from a visitation of God," that is, from a cause beyond the control of the prisoner,' the fact is brought to the attention of the court by the interposi- tion of a suitable plea in bar of trial, the procedure under which will develop the precise nature and extent of the inability to plead, which is alleged in behalf of the accused, and will enable the court to apply an adequate and appropriate remedy.' Nolle Prosequi. — The court having been organized and sworn, and the accused having been arraigned and his pleas to the several charges and specifications having been entered, the court is fully in possession of the case, and the accused is in general entitled to have the trial carried forward to a conviction or acquittal. "A prosecution before a court-martial, however, proceeds in the name and by the authority of the Government. The United States, therefore, through the Secretary of War or the military commander who has convened the court, may require or authorize the Judge-advocate to enter a nolle prosequi in a case on trial (or, less technically, withdraw or dis- continue the prosecution), either as to all the charges, where there are several, or as to any particular charge or specification. But the judge-advocate can- not exercise this authority at his own discretion, nor can the court direct it to be exercised." ' > 12 Geo. III., ch. 20. « 2 Hale, PI. Cr., 317. ^ For a case in point, see Adye, 133, note. * Macomb, § 64; O'Brien, 247; DeHart, 136 Benet, 107;. Ives, 111; Winthrop, 336; Hough, 754; Simmons, § 552. ^ Dig. J. A. Gen., 536 ; see, also, Digest, 315, par. 7; ibid., 458, par. 10. In the British service it is held that the crown and the convening anthority may enter a nolle prosequi at any stage of the proceedings. This power is deduced from the undisputed power of the crown to enter a nolle prosequi at any time in a crimi- nal case. Clode, Mil. Law, 125 ; Regina vs. Allen, 1 B. & S., 855. TEE mOIDENTa OF THE TRIAL. 119 THE HEARING. THE PROSECUTION. Testimony for the Prosecution. — The arraignment having been completed, the trial proper begins with the introduction of the testimony in behalf of the United States. The judge-advocate, as the prosecutor in behalf of the Crovernment, may open the prosecution with a statement of the case against the accused which he proposes to establish by the testimony of witnesses. Unless the case presents some unusual complications, however, or unless it may become necessary to rely largely upon circumstantial evidence in support of the case for the prosecution, the judge-advocate rarely avails himself of this privilege in practice, but relies upon the charges themselves to convey to the court an outline of the case which he proposes to establish.' Introduction of Witnesses. — The first witness for the prosecution is then called and duly sworn by the judge-advocate. While taking the oath the witness stands, his ungloved right hand raised. The Judge-advocate, also standing, then administers the oath to the witness by repeating it in the following form: " You, A B , do swear, {or affirm), that the evidence you shall give, in the case now in hearing, shall he the truth, the whole truth, and nothing but the truth. So help you God." When the prescribed form of oath has been administered by the judge-advocate, the witness signifies his acceptance of the obligation by saying " I do," or by adding thereto the concluding words of the oath itself, "I do, so help me God." In the administration of the oath, any form which the witness regards as of peculiar binding force may be administered in addition to that required by law ; but the oath or affirmation prescribed in the 93d Article of War, being a statutory requirement, must be administered in every case.' A witness who has once been sworn in a particular case and has testified, is not required to be resworn on being subsequently recalled to the stand by either party.' ' Ives, 129 ; Winthrop, 397. The judge-advocate in his character as prosecutor cannot be interfered with. Ives, 333. In the Stauley-Hazen coiu-t-martial the court refused to direct the judge-advocate to proceed with the trial of General Hazen, as requested by General Stanley. The judge-advocate claimed the right to bring for- ward his cases in the order which he saw fit. The court declined to interfere. Such interference, indeed, would have been quite beyond its power. Other than the judge- advocate, wlio by the 90th Article of War is "required to prosecute in the name of the United States," our military law and practice recognize no official prosecutor. The party wlio is in fact the accuser or the prosecuting, witness is, in important casf's, not unfrequently permitted by the court to remain in the courtroom and advise with the judge-advocate during the trial, if the latter requests it ; and in some cases he has been allowed to be accompanied by his own counsel. If such a party is to testify, he should ordinarily be the first witness examined ; this course, however, is not invariable. Dig. J. A. Gen., 619. See, also, 458, ibid., par. 11. ''The Article does not prescribe by whom the oath shall be administered. By the custom of the service it is administered by the judge-advocate. When the judge- advocate himself takes the witness-stand, he is properly sworn by the president of the court. Ibid., 107, par. 3. ' This Article prescribes a single, specific form of oath to be taken by all witnesseg, 120 MILITARY LAW. Objections to Competency. — If there are objections to the competency of the witness, they are raised before the oath has been administered. If the cause of incompetency be known to exist, the party objecting must raise the objection at this time or it will be deemed to have been waived.' Until they are called upon to testify, none of the witnesses are permitted to appear in court, or to listen to the testimony of others, save in the case of an expert, whose testimony, being in the nature of an opinion, is, or may be, based upon that of other witnesses. While waiting to give their testimony the witnesses are separated, if need be ; when the occasion is such as to make that course necessary, suitable precautious may be taken to prevent their communicating with each other during the trial of the case.' Method of Examination. — After having been identified and sworn, the witness is first examined by the judge-advocate. " The first question put to him will ordinarily be for the purpose of determining his identification of the accused ; the second, when practicable, should be in such form that the answer may show that the witness was so placed as to personally know some- thing about the matter set forth in the specifications; while the third and subsequent interrogatories should be such as to elicit all the facts, whether they consist of words or actions, that may have come within the witness's personal knowledge."' When the direct examination has been concluded the fact is announced by the judge-advocate, and an opportunity is given the accused to cross-examine the witness." After the cross-examination has been completed the witness may be re-examined by the judge-advocate, after, which he may be re-examined by the accused. If the accused desires to examine the witness in respect to matters not developed during the examina- Tbe Constitutiou, however, (Article I of Amendments _) 1ms provided that Congress shall miiUe uo law prohibiting the free exercise of religion. Where, therefore, the pre- scribed form is not in accordiince with the religious tenets of a witness, he should be permitted to be sworn according to the ceremonies of his own faith or as he may deem binding on his conscience. Dig. J. A. Gen., 107. par. 1. The reswearing of a witness will not affect the validity of the proceedings. Ibid., 108, par. 3. ' See the title Competency of Witnesses in the chapter entitled Evidence. 2 Witnesses should not in general be admitted to the court-room, but should be kept as far as practicable apart until required to appear and give their testimony. But that a witness or witnesses may have been permitted to remain in the court-room and hear the testimony of witnesses previously called cannot affect the legality of the pro- ceedings. Dig. J. A. Gt-n,, 753, par. 15. Before the examination of any particular witness is begtm it is customary for the court to require the others to retire. If a witness remains in court after such a request, by a mistake or otherwise, the court will decide whether or not he shall be examined ; but whether or not it is essential to the discovery of truth that the witnesses shall be thus examined out of hearing of each other is a matter within the discretion of the court.* Miuiual for Courts-martial, 41. ' Manual for Courts-martial, 41. * Macomb, §§ 77-86; O'Brien, 251-257; DeHart, 150-161; Benet, 125; Ives, 131; Wiuthrop, 899-406 ; Tytler, 161 ; Simmons, §§ 569-587 ; Clode. Mil. Law, 27 ; Man. Mil. Law, 606, 607 ; Man. for Courts-martial, 41-45 ; Harwood, 98-106 ; Adye, 175. * 1 Greenleaf, § 481. TEE INCIDENTS OF TEE TBIAL. 121 tion in chief, his proper course is to summon the witness to testify in his behalf at a later stage of the trial. If his questions be few in number, however, they may, with the consent of the court, be put while the witness is on the stand.' After the judge-advocate and the accused have completed their examination of a particular witness, an opportunity is afforded to the members of the court to propound questions. In strictness, the court may put questions at any time; they are properly put, however, after the witness has been regularly examined by the parties." Reducing ftuestions to Writing. — Questions are reduced to writing by the party with whom they originate, and are put by the judge-advocate, who records the answers, as they are made, in the exact words of the witness. Arguments, motions, pleadings, and other matters of like character arising in the course of the trial, are similarly reduced to writing. In cases in which a stenographer is employed to take down the testimony, the questions are put and answered viva voce, as in ordinary civil procedure. Reading over Testimony to Witness. — The examination of the witness having been concluded, his testimony, or a portion of it, may be read over to him with a view to the correction of inaccuracies, if he request it, or if the court, for some special reason, considers such reading necessary." He is then permitted to retire. Should he be recalled to testify at a subsequent stage of the trial, it is not necessary to re-administer the oath; it is suflBcient to call his attention to the fact that he has already been sworn and that the binding force of the oath remains unimpaired.* Leading Questions. — ^In the examination in chief, what are called leading questions, that is, questions which suggest the answers which it is desired that the witness shall make, or which, embodying a material fact, are sus- ceptible of being answered by a simple Yes or No, if objected to by the op- posite party are rejected by the court. This rule, however, is to be under- stood in a reasonable sense, for otherwise the examinations might be most inconveniently protracted. To abridge the proceedings, the witness may be led at once to points on which he is to testify and the acknowledged facts ' Wiuthi-op. 401 ; Ives. 133 ; DeHart, 159. '' "Tlic3 manner iu wbich witnesses are to be examined liescliiefly witliin tlie discretion of tlie court. The great object is to c-licit^ tbe truth from tlie witness ; but tlie eliaracter, intellisenee, moral courage, bias, memory, etc., of witnesses are so varied as to require an almost equal variety in the manner of interrogation necessary to attain that end."'^ ManuM,l for Oourts-martial, 41, par. 3. ' The reading of previous proceedings and of testimony for approval will be dis- pensed with, unless, for special reason such reading be considered necessary by the court, or unless a witness desires to have certain part of liis testimony read over for correction. Circular No. 27, A. G. O., 1897. A witness who has given his testimony should in general be allowed to modify the same where he desires to do so in a mateiial particular. But where the court has refused to permit a witness to correct his statement as recorded, suoli refusal need not induce a disapproval of the proceedings unless it appear that the rights of the accused have thus been prejudiced. Dig. Opin. J. A. Gen., 753, par. 14. " A Ibid., 108, par. 3. * 1 Greenleaf, § 431. 122 MILITARY LAW. in the case already established may be recapitulated to him. The rule is, therefore, not applicable to that part of the examination which is merely introdactory.' In certain cases, however, leading questions may be put. They are per- mitted during the cross-examination and, during the direct examination, as has been seen, in respect to matters introductory to the material part of the inquiry ; or when the witness appears to be hostile to the party calling him ; or is reluctant or unwilling to testify, or, from- evident want of recollection, which a suggestion may assist, makes an omission in his testimony ; and in cases "where the mind of the witness cannot be directed to the subject of inquiry without particularization. The question whether a particular question is or is not leading, and if so whether it can be put, is a matter to be determined by the court in every instance.' Objections to Testimony. — A question having been put by either party the other party to the proceedings, or even a member of the court, may object to its being answered upon the ground that it is leading or irrelevant, or that the answer called for is hearsay, or in the nature of opinion, or otherwise properly subject to objection in accordance with some established rule of evidence."' The nature of the objection must be stated in every case, as that the question is leading, irrelevant, or the like; and the party object' ing may, if necessary, submit argument in its support, to which the partj proposing the question is entitled to reply. If the reason for the objectiop be at once apparent, or when both sides have been heard as to its admissi- bility, the court is cleared and closed and the court determines, by a majority of votes, whether the question shall be put.' Questions by Court. — Questions by the court, that is, questions which have been agreed to, or determined on, by the court in its collective capacity, are, of course, not subject to objection. Questions by a member or by a party, however, may be objected to by another member or by the opposite party; if objected to, and if the objection be sustained, such a question is recorded as a " question by a member " and not as a " question by the ' Manual for Courts-martial, 41; 1 Greeuleaf, § 434. ' 1 Greenleaf on Evidence, §§ 434, 435; 1 Wharton, Evid., §§ 449-504; 1 Starkle. 149, 150 ; U. S. vs. Angell, 11 Fed. Rep., 35, 39. In commencing the examination of a -witness, it is a leading of the witness, and objectionable, to read to him the charge anil apecifliation or specifications, since he is thus instructed as to the particulars in regard to which he is to testify and which he is expected to substantiate.* So to read or state to him in substance the charge, and ask him ' what he knows about it,' or in terms to that effect, is loose and objectionable as encouraging irrelevant and hearsay testimony. The witness should simply be asked to state what was said and done on the occasion, etc. A witness should properly also be examined on specific interrogatories, and not be called upon to make a general statement in answer to a single general question. f Dig. J. A. Oen., 394, par. 5. ' See, post, the chapter entitled Evidencb. " Macomb, § 78; DeHart, 155; Benet, 128; Ives, 131 ; Winthrop, 404 ; Harwood, 99. * Compare G. O. 12, Dept. o£ the Missouri, 1868; do. 36, id., 1863; do. 89, Dept. o£ California, 1865; do. 67. Dept. of the South. 1874. t See G. C. M. 0., 14, 24, Dept. of Dakota, 1877. THE INOIDMNTS OF THE TRIAL. 123 court" in the ordinary form. For this reason questions by members are submitted informally to each member in turn, and if approved they become questions by the court and, as such, are not open to objection.' Conduct of the Prosecution. — A competent judge-advocate will properly be left by the court to introduce the testimony in the form and order deemed by him to be the most advantageous and, generally, to bring on cases for trial and conduct their prosection according to his own judgment." His duty in this respect, however, will depend upon the rank of the accused, the ofEense with which he is charged, his ignorance or want of intelligence, and, to some extent, upon the fact that he is or is not defended by counsel." The duty of the judge-advocate toward the accused should not be regarded as confined to the limited province of counsel for the prisoner as the same is indicated in the 90th Article of "War. Where the accused is ignorant and inexperienced and without counsel — especially where he is an enlisted man — the judge-advocate should take care that he does not suffer, upon the trial, from any ignorance or misconception of his legal rights, and has full opportunity to interpose such pleas and make such defense as may best bring out the facts, the merits, or the extenuating circumstances of his case.' The judge-advocate should therefore advise the accused, especially when ignoiant and unassisted by counsel, of -his rights in defense — particularly of Jiis right, if it exists in the case, to plead the statute of limitations, and of his right to testify in his own behalf. A failure to do so, however, will not affect the legal validity of the proceedings; though if it appear that the accused was actually ignorant of these rights, the omission may be ground for a mitigation of sentence.' Prosecutor. — Our military law and practice recognize no ofiBcial prose- cutor other than the judge-advocate, who by the 90th Article of "War is " required to prosecute in the name of the "United States." The party who is in fact the accuser or the prosecuting witness is, in important cases, not nnfrequeutly permitted by the court to remain in the court-room and advise > Simmous, ^ 595; DoHsirt, 156; Wiulhrop, 404. ' Dig. J. A.'Gen., 458, par. 11. Compare G. C. M. O. 97, Dept. of Dakota, 1878; do. 88. Dept. of Texas 1878; and, as to the civil prnclioe. United States vs. Burr, 1 Burr's Tria), 85, 469; Lynch bs. Benton, 3 Rob,, 105; Davany ®s. Koon, 45 Miss 71. » Macomb, §§ 74-97; O'Brien, 282; DeHait, 112; Benet, 124-134; Ives, 124; Winthrop, S94 ; Simmous, 'g 550 ; Clode, Mil. Law, 104; Man. Mil. Law, 54; Man. for Courts-mar- tial, 20. * Dis;. J. A.. Gen., 458, par. 12 For the judge-advocate to counsel the accused, when a soldier or inferior in rank, to plead guilty must in general be unbefitting and inad- visable. But where such plea is voluutiuily and intelligently made, the judfie-advocate should properly advise the accused of his right to offer evidence in explanation or extenuation of iiis offense, and if any such evidence exists should assist him In securing it. And where no such evidence is aitainable in the case, the judge-advocate should still see that the accused has an opportunity to present a "statement," written or verbal, to the court, if he has any desire to do so. Ibid. , par. 13. •^ Hid.. 462, par. 28. 12-i MILITARY LAW. with tte judge-advocate during the trial, if the latter requests it; anu. in some cases he has been allowed to be accompanied by his own counsel. If such a party is to testify, he should ordinarily be the first witness examined ; this course, however, is not invariable.' Close of the Case for the Prosecution. — When all the witnesses for the prosecution have been called and examined and such documentary evidence as the judge-advocate may desire to introduce has been submitted to the court, the judge-advocate announces that "the prosecution here rests." This to enable the accused to know when the case of the prosecution is com- plete and the testimony in support thereof fully before the court, THE DEFENSE. DEFENSES. Nature and Character. — The matter offered by an accused in opposition I to or in rebuttal of the c a se establis he_d_„b-YJike- prosec ution is called th e ' defense. Defenses vary considerably in point of sufificiency or legal validity; some being a complete answer to the charges, and others operating merely to reduce the degree of criminality, or to diminish the gravity of the offense which is shown to have been committed. "Where the testimony submitted in behalf of an accused is sufficiently strong to absolutely negative the allor gations of the charges aud specifications the defense is said to be complete : as where absolute want of criminal capacity is established in respect to the accused, or where an act charged was done in obedience to the lawful orders of a military superior, etc. A complete defense, however, is not always necessary. It has been seen that, in order to warrant a conviction, the court must be convinced of the guilt of the accused beyond a reasonable doubt; where, therefore, the testimony submitted by the prosecution in sup- port of a particular charge falls short of this standard the accused is entitled to an acquittal as to such charge or specification; and the matter thus sub- mitted in behalf of the accused is said to constitute a suffici ent or valid defense. The principal defenses will now be considered. Want of Criminal Capacity. — As the law presumes all persons to be capable of enjoying legal rights and of performing legal duties, it also pre- sumes their capacity to violate the law, that is, to commit criminal offenses. When, therefore, a person is charged with the commission of a criminal offense the presumption of criminal capacity attends such a charge, and the burden of proving the existence of such a want of capacity as will serve to deprive the act of all criminality, or diminish it in character or degree, rests upon the accused. If there be immaturity in respect to age, or mental unsoundness, or if the person is so deficient in intellect or understanding as not to be conscious of ' Dig. J. A. Gen., 619. THE INCIBENT8 OF THE TRIAL. 125 or capable of controlling his actions, his responsibility for them and for their harmful consequences either ceases to exist or is considerably modified. For acts over which he has no control, or as to which he is incapable of forming or cherishing an intention, he has no responsibility whatever. If he is dangerous to society, the law provides methods by which such restraint may be placed upon his movements as is necessary to the well-being of the com- munity at large. If there be periods or occasions during which he is of sound mind, as to such periods he is fully accountable for his acts. If his mental faculties are merely impaired, the nature and extent of his responsibility is a question of fact to be determined by the court; t feg presumptio n being i n ' all cases that an accused person is mentally sound and therefore responsib le for hia acta, a nd, the burden of proving the existence of mental un soundness or othe r incapacity lies upo n the defense an d must be establishei byiie .■ testi mony of witnej ges. — Such want of capacity to commit crime may be due to mental or physical causes; under this head fall: (1) Jjifima^ — -It is a well-established principle of criminal jurisprudence that children under seven are not only presumed to be incapable of commit- ting crime, but the presumption is regarded by the courts as conclusive so soon as the age of the offender has been satisfactorily established. Betwee n seven and fourteen the -presumption ofUaaLig_against such capacity, but is subject to rebuttal "EyTvidence showing proper intelligence and kuowledge of the character aud consequences of the act in question; between the age s of fourteen and twenty-one the s^imepr^um£tionprevails_asjD^ a person of f ull aige. (2)~ idiocy and Lunacy, orlns'anity. — A^n idiot is a pe rson who has been defective in intellectual pow ers from birth OTfromjtperiQd b efore iiier^^ r eceived the, impression of any idea. One born deaf, dumb, and blind" is looked upon by the law as in the same state with an idiot. Idiocy is regarded at law, not as the condition of a deranged mind, but as an absence of all mind, involving, as a consequence, an absolute incapacity to commit crime. Insanity. — Insanity, or lunacy, diffe rs from idiocy in that the impair- ment of m ental faculties is, or ma y be ^ casual and occasional, rather than perman en t- Snob periods of mental soundness are called lucid intervals, and an accused person as to such periods is fully accountable as to his acts. Test of Capacity in Case of Insanity. — It has been seen that the test of responsibility for crime lies in the capacity or power of the person to commit the act; and the inquiry is whether the accused was capable of having and did have a criminal intent and the capacity to distinguish between right and wrong in reference to the particular act charged.' The test of responsibility -0^ vl. l/'^ ' U. S. vs. Toung, 25 Fed. Rep., 710; Guiteau's Case, 10 ibid., 161; Kansas vs. Nixon, r-"^ 126 MILITARY LAW. where insanity is asserted is as to the capacity of the accused to distinguish between right and wrong with respect to the act, and the absence of delu- sions respecting the same. If the accused knew what ho was doing and that the act was forbidden by law, and had power of mind enough io be conscious of what he was doing, he was responsible;' in other words, had the accused the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong ? If so, he is responsible for the consequences of his act. Drunkenness. ' — While drunkenness is no excuse for crime," and one wh o becomes voluntarily drunk is criminally responsible for all oi f ens es committe d by him while i n tEis co ndition, yet the fact of the existence of drunkenness niay^ proper evidence to determine the question of the species or grade of crime actually committed, especially where the point to be decided is whether the accused was actuated by a certain specific intent. Thus the fact and measure of the drunkenness of the accused may properly be considered by the court as afEecting the question of the existence of an animus furandi in a case of alleged larceny.' 4 Pac. Rep., 159; Oregon m. Muiray, 5 ibid.. 55. For a full diacussion of insanity as a defense, see Guileau's Ciise, 10 Feil. Rep., 161, and So ibid , 715. ' Kansas va. Nixon, 3a Kan., 305; id.. 4 Piic. Rep., 159. ^ As to tbe offense of drunkenness in ereiieral at military law, see the 38th Article in the chapter untitled The Articles oj Wak. ' Coke, in laying down the doctrine, now general, that drunkenness does not exten- uate but rather aggravates the offense actually committed, says: "It is a great offense in itself." Beverly's Case, 4 Coke, 123, b. So "the law will not suffer any man to privilege one crime by another." 4 Blackstone Com , 26. "The vices of men cannot constitute an excuse for their crimes." Story, J., in IJ. S. vs. Cornell, 3 Mason, 111. * Dig. J. A. Gen., 378, par 1. The following are illustrations of the rule : "1. Thus in a prosecution for passing counterfeit money, the defendant may show that he was so intoxicated at the time as to be unable to distinguish between good and spurious money. "2. In iin indictment for larceny, it might be shown that the defendant was too intoxicated to distinguish the property from his own of similar appearance, or that he was too confused and bewildered to form an intention of stealing, or to know he was doing so. "3. So when a person is indicted for perjury in having falsely described a formei transaction, he may sliow in defense that he was so grossly intoxicated at the time and place where tlie transaction occurred that he could not then correctly understand what was done, and so in misstating It in court he did not do so knowingly and corruptly. "4 So a person indicted for 'knowingly' voting twice at the same election — under a statute — may prove he was so intoxicated the second time as to be unable to know he had voted before. "3. On ii charge of 'assault with intent to kill ' in order to convict of the whole offense the specific Intent must be proved to exist ; it is not necessarily inferred from the mere fact of the assault, although the mode and manner of the assault miiy bu suificient to prove it. If. therefore, the "accused was really too drunk to be capable of forming any intention whatever, and none such had ever existed before, it would be a defense to that part of the charge, though not to the minor offense of a common assault. " 6. So. if a statute defining murder in the first degree requires it to be done 'delib- erately and pre 1 editately,' evidence that the defendant was too much intoxicated to deliberate and premeditate is certainly competent ; and if the jury find the fact to be so, and there was no evidence of a prior premeditation, it would be warranted, if not required, in finding not guilty of that degree of murder. " So, in such cases, evidence of intoxication is competent upon the question whether the killing sprang from premeditation, or from sudden passion excited by inadequate provo- THE INCIDENTS OF THE TBIAL. 127 Drunkenness caused by morphine or other drug prescribed by a medical officer of the army or a civil physician may constitute an excuse for a breach of discipline committed by an officer or soldier, provided it quite clearly appears that this was the sole cause of the offense committed, the accused not being chargeable with negligence or fault in the case.' At military law, where drunkenness (the fact of the existence of which may always be put in evidence) has entered into the commission of a specific offense requiring a peculiar deliberate intent (such as desertion, mutiny, or disobedience of orders), it will in general be more logical, as well as more just, to charge the offender, not with the specific offense, but with the drunkenness as an aggravated disorder, under Article 63. Where it is shown that the accused became drunk in the company of a military superior, who drank with him or exerted no authority to prevent his indulging to excess, this fact should avail materially to mitigate the sentence imposed upon him by the court. In such a case, indeed, it is the superior who mainly deserves trial and punishment." Compulsion. — The requirement of the 43d Article of "War that " if any commander of any garrison, fortress, or post is compelled by the officers and soldiers under his command to give up to the enemy or to abandon it, the officers or soldiers so offending shall suffer death or such other punishment as a court-martial may direct," constitutes a typical instance of compul- sion amounting to a complete defense in the case of a commanding officer charged with the surrender of a post or fortified place committed to his charge. The character of the constraint or compulsion referred to in the cation ; that Is, whether the intent to kill preceded the provocation or was produced by it. "But inadequate provocation for a sober man, insufficient to instigate his act, will not, in and of itself , have such effect in case of an intoxicated person. There are not two rules of provocation, one for sober men and one for drunken men. " But the etiecl and weight of the fact of intoxication, as tending to show the absence or want of some specific intent, or prerneditation, is solely for the jury. The court as a matter of law does not draw any conclusion from it either wny. Tlie fact of inioxicalion at the moment is of course riot conclunve of a want of intent or premeditation. The intent may have been formed before, oi may exist notwithstanding the intoxica\ion and concurrently with it. But when the offense is made out from implied malice, such as an unprovoked assault and battery, or murder, a malicious slabbing, or maliciously poisoning a horse, the malicious iutent being sufficiently proven by the act itself, the fact of drunKenness has very Utile if any weight." American Law Review (March, 1874). See, also, Rex w. Pitman, 2 C. & P., 433; 1 Bish. Cr. L., S 490. So the fact of drunkenness has been held admissible in evidence in cases of homicide upon the ques- tion of the existence of malice as distinguishing murder fiom manslaughtor ; as also upon the question of deliberate intent to kill in States where the law distiiignislies degrees of murder. State m. Johnson, 40 Conn., 136, and 41 id., 588 ; People vn, Rogers, 18 N. Y., 9 ; People m. Hammill, 3 Parker, 233 ; People r«. Robinson, id.. 33.') ; State lis. McCants, 1 Spears, 384 ; Kelly vs. State, 3 Sm. & M., 518 ; Sliannah n m. Common- wealth, 8 Bush, 463 ; Swan vs. Stale, 4 Humph., 136 ; Pirtle vs. State, 9 id., 663 ; Haile vs. State 11 id , 154 ; People vs. Belencia, 31 Cal., .544 ; People vs. King, 37 id., 509; People vs. "Williiims, 43 id., 344 ; 3 Greeul. Ev., §§ 6, 148 ; 1 Bish. Cr. L., §§ 493, 493. ' Dig. J. A. Gen., 879, par. 3. ' Ibid. , par, 3. <^ 128 MILITARY LAW. 43d Article constitutes the military offense of mutiny, which will be dis- cussed elsewhere. Obedience to Orders. — Compulsion at military \a,w may also consist in obedience to the lawfal o rders^uLa proper m,ilitq,rv puperior. When the esistence of such orders and the fact of obedience have been established in evidence, it will constitute a complete defense for the act charged in a trial by court-martial. For, since implicit obedience to orders is required of all military persons by the Articles of War, it follows that " the order of a commanding officer will in general constitute a sufficient authority for acts regularly done by an inferior in compliance with the same. Where, how- ever, the order of the superior is a palpably illegal order, the inferior cannot justify under it;' and if brought to trial by court-martial or sued in damages for an act done by him in obedience thereto, the order will be admissible only in extenuation of the offense." ^ Other Forms of Compulsion. — I d__ addit ion to the for ms of compul sion, already discussed, the law recofrni^^ea whn,t is cj^£KAn.ari. t , nl. r.np.rQ i, Qi^, g ,s_^^Tist- ing in the case of husband and wife, in conformity to which principle the criminal acTs of the wife wlien committed' in the presence of the husband are presumed to have been due to his direction and coercion. The law also recognizes it as a ji excuse for.,Grime,thf)'t its com mission has been du e to force, or to threats to kill an offender or to do him grievous bodily harm in the event of his refusal to take part in a particular criminal act. For such a defense to avail, however, the threats must have been such as to place the accused person in danger of imminent death or serious bodily harm, and must hav e been cont inuous during the entire period of the exis t- ence of the act in question . _I!II- Ignorance or Mista'ke of Fact. — Igno rance o r mistake of fa ct is, subject to certain qu alifications presently to be described, regarded as in the nature ofa n excuse for the oornmissio[L..ala- criminal offense. From the point of view of legal responsibility, ignorance of fact is said to be either voluntary or involuntary. It is vol untary, and not susceptible of being pleaded as a defense for crime, when one by _reasonable exertion might have acqiiired l^nowiedg e asto the consequences of^his act.' And such failure to acquire ' Dig. J. A. Geu., 547, par. 6. See, also, on tbis subject, Harmony m. Mitcbell, 1 Blalcb., 549, and 13 Howard, 421; Durand m. Hollins, 4 Blatcb., 451 ; Holmes m, Sheiiilan, 1 Dillon, 357; McCall ®«. McDowell, Deady, 333, aud 1 Ab. U. S. It., 312; Clay TO. IJniieil States, Devereux, 25 ; Uuited Slates m. Carr, 1 "Woods, 480; Bates vs. Clark, 5 Otio, 204 ; Ford m. Siirget, 7 Otto, 594 ; Skeen m. Monkheimer, 31 Ind. 1 ; Griffin m. Wilcox, id.. 391 ; Rigffs m. State, 3 Cold., 851 ; State vs. Sparks, 27 Texas, 632 ; Keighly vs. Bell, 4 Fost. & Fin., 805 ; Dawkins »«. Rokeby, id., 831. The law is the same although the order to the inferior may emanate directly from the President. See Eifort vs. Beviiis, 1 Bu.'-h, 460. ' Stale rs. Sparks, ante; McCall vs. McDowell, ante; Milligan vs. Hovey, 3 Bissell, 13; Beckwith v>. Bean, 8 Otto, 266. For a discussion of the effects and binding force of military orders, see the 24th Article in the chapter entitled The Articles of Wak. ' Anderson, Law Diet. ^ ^ TEE INGIDENTS OF THE TRIAL. 129 knowledge constitutes a form of guilty negligence, which does not avail as a defense to a person charged with the commission of crime. Ii woluntar y ] U^ ignorance does not proceed from choice, and coald .notjbe o v^ome by the I n se of any known means. In the law of crimes, ignorance of fact isTegarded as a defect of will. ' It occurs where, when a man intending to do a lawful act does that which is unlawful, the deed and the will do not concur." When admitted it is held to affect the intent, and t he burden rests upon the accused_o f showing want of knowledge, and that he was not chargeable with either negligence or with a want of reasonable care in the performance of the act charged. "Where the offense is defined by statute, and neither intent ]j n or guilty knowledge is c r eated or imp lied, ign^rance_of_^i£t_KULliQjLjCO]i- / s titute a defense. ^ The Alibi. — The term a lili (meaning elsewhere, or in another place) js employed to describe that method gf defense to a .criminal uroseo ^iion-m.- which thTaccuse'd undertake s, to show that he_ could notJiava commit teiLihe offe nse char ged, by_evidence showing that he was elsewher e, that is, in a nother jlace, at the timeofitscommission; the place being so distant from that in which the offens e was committed as to^preclud^e^e. possibility of his • participa^ i Q" in ths act charged. This method of defense is called setting ■up an alibi. As this defense is liable to great abuse on account of the ease with which it can be fabricated, testimony tending to prove an alibi should be carefully scrutinized, and should be accepted only upon full, clear, and satisfactory evidence of the facts relied upon to establish the defense.* Testimony for the Defense. — The testimony for the prosecution having i)een submitted, the accused is now fully iaformed not only as to the nature and extent of the charges against him, but as to the precise matters of fact in respect to which he must be prepared to defend himself. If he so d.esu:e s> the accused or h is„. counsel jaay jdjirgss :tiia..„fia3ir tjit J^is ..st.age-aL±heJaial» -se tting forth his the^^-Ct^jefense and,, outlining the facts whichjie proposes to establish byj he testimonv of witnesses. The witnesses for the defense are now called, in the order desired by the accused, sworu by the judge- advocate, and examined, cross-examined, and questioned by the court in the same manner as were the witnesses for the prosecution. When the examina- tion of each witness has been concluded his testimony or a portion of it may, if he so requests, be read over to him by the judge-advocate, with a view to enable him to correct errors or to explain or reconcile conflicting or contradictory statements. ° ' Anderson, Liw Diet. 2 JMd.;4 Blacks. Com., 37; 1 ibid., 46. ' Am. & Eng. Eneyo., vol. iv., p 689, and cases cited. * As to the degree of proof requisite to establish an alibi, it is not necessary that it should be beyond reasonable doubt; it is suflBcieut if it operates to cast reasonable doubt upon the case established by the prosecution. ' See note 4, page 131, ante. ^ 130 MILITARY LAW. Testimony as to Character. — In addition to the evidence properly rele- Tant to the charges, the practice of courts-martial permits an accused person to introduce testimony as to previous good character. Such testimony may \ be introduced (1) in the defense proper, that ie, in_disproof of the parti c- ular offense ■with w hinh tho niffrmap'^ is charged , and (2 ) with a view to afEect the punishmentj__as_to «Mjad or -amount.-ach ere ei ther, eje ment of the sentence Ts' discretionMj with the^cpurt, or to J££E£S_5ulS22l5^®'^*^^ii22J'* mercy, orlio obtain a mitigation o4,punishment _9,t„ the hands of t he review - ing authority where the sentence is manda tory. In the first case it is to be bornEimnind that when an offense has been clearly established in evidence, the general character of the offender, whether good or otherwise, is neither relevant nor important. The court is sworn to find " in accordance with the evidence adduced," and if the testimony establishes the commission of an offense beyond a reasonable doubt, the court must find iu accordance I therewith. Iti s onlv in a case in which such doubt, exists, or where the ?y testimony is evenly balanced^ that^Jestimony as to,,gflod _character may be / re Helved. wi th a view to influence the finding. In such a case the testimony should relate to the conduct outlined in the charges and specifications. If, for example, the charges allege a want of integrity, testimony as to the character or reputation of the accused for integrity would be appropriate; if misbehavior before the enemy be charged, testimony as to gallantry would be apposite.' Evidence of the good character, record, and services of the accused as an oflBcer or soldier is also admissible in all military cases without distinction with a view to mitigate the severity of the sentence, " in cases where the sen- tence is mandatory as well as those where it is discretionary, upon conviction. For, while such evidence cannot avail to affect the measure of punishment, it may yet form the basis of a recommendation by the members of the court, or induce favorable action by the reviewing officer whose approval is neces- sary to the execution of the sentence. Where such testimony is introduced fthe prosecution may offer nounter-testimonv . but il'^i"s _a n est ablishe d rule of evidence that t he pro secution cannot attack the charac ter o f the accused till ' III '^....iMM— iM^W^"—— — " I -^ii»ii — i ww iM wMtm mi l iiii w iiiM m il- J&frm^„^ Macomb, § 117 ; -O'Brien, 191 ; DeHart, 344 ; Benet, 340 ; Ives, 137, 314-316; Wintbrop, 496 ; Simmons, §§ 584, 82.'5-828, 977 ; Clode, Mil. Law, 129 ; Man Mil. Law^ 605, 606; Man. for Courts-martial, 45; Dig. J. A. Gen., 394, par. 4; Harw««d, 110, 111; Adye, 187. ' DU .T. A. Gen.. 304 piir. i ' Bee i):i{j.; 121, ante. THE INCIBENT8 OF TEE TBIAL. 131 summoned, or, if he is a military person, may apply to the convening authority or post commander to have him ordered before it to testify,' and it may adjourn the trial for a reasonable time to await his attendance." It is the duty of the court to see that injustice is not done the accused by the admission on the trial of improper testimony prejudicing his defense or unfairly tending to aggravate the misconduct charged. In the interests of justice, therefore, the courb may exclude such testimony although its admission may not be objected to on the part of the accused. On a similar , ground or for the purpose of fully informing itself of the facts t he court may , ]|/ in its discretion, allow the introduction, by either side, of material testimon y ' afte r the case has been formally close d. Such a proceeding, however, must be of course exceptional, and a party should not be permitted to ofEer testi- mony at this stage unless he exhibits good reason for not having produced it at the usual and proper time.' On the other hand, as has been seen, where the accused pleads guilty, and the specification does not fully set forth the particulars of the ofEense, the court is authorized to call upon the judge-advocate to introduce testi- mony sufficient to inform itself, as well as the reviewing officer, as to the extent of the criminality involved in the offense and the measure of punish- ment proper to be imposed.' Member or Judge- Advocate as Witness. — While it is in general undesir- able that ■■.a memberofa military court should testify as^j^Jness at a trial | J had befor (^ snf^b p.nnrh,. unless perhaps Jh|s^ jggjimo , i ;VY relateg^ to__character / \Ae Tnerely, yet the fact that^Jie_is_ called upon to testify does not affect t he validity of ^.b^ proceed iiigakJlor d oes it operate to de bar the member hijnself fr om the exe rcise of_an^of the duties or rights incident to..his membe rship . He remains entitled to take part in all deliberations, including indeed those had in regard to the admissibility of questions put to himself or as to his answers to questions; he will naturally, however, in general refrain from expressing himself upon points arising in connection with his own evidence." ' In this case the rourt is said fo originate evidence. It lias not been tlie practice in this c luntry for the convening authority to detail an officer to attend a military court in a ministeriiil capacity— to summon witnesses, enforce the attendance of the accused, etc. In the special case, indeed, of the persons chnrged with complicity in the assassination of President Lincoln and tried by military commission, it was ordered by the President, May 1, 1865, as follows: "Tliat Brevet Major General Hartranft be assigned to duty as special provost marshal general for the purposes of said trial, and attendance upon said oommission, and the execution of i's mandates." Dig. J. A. Gen.. 315, par. 8. note. ' Dig. .1. A. Gen 315, par. 8 ; De Hirt, 85 ; Benet, 357 ; Ives, 133, 184; Winthrop, 403 ; Simmons. § 948 ; Man. for Courts-martial. 44 ; Dig. J. A. Gen., 815, par. 8 ; Kennedy, 141; Adye. 179; Geu. Court-martial Orders 48, Div. Pacific, 1880. ' Dig. J. A. Gen., 316. par. 10 Compare Eberhardt vs. Slate, 47 6a , 598 ; and see the Trial, by court-martial, of B. G. Harris (Ex. Doc. No. 14, Ho. of Reps., 39th Cong., 1st sess., p. 25), where, oti the day on which the accused was to present his final argu- ment to the court, and which was two days after the formal closing of the case, the defense was allowed to introduce new testimony on the merits. * Ibid., par 9. See, also, pp. 115-117, ante. Compare the recent case of State vt, O'Connor, 65 Missouri, 374. ' Dig. J. A. Gen., 496, par. 5. 132 MILITABT LAW. Should the judge-advocate be required to give evidence as a witness, the clerk or reporter of the court may record his testimony while on the stand ; or, if there be no clerk or reporter, he may record his own testimony in the same manner as that of any other witness.' The Accused as a Witness. — By the Act of March 16, 1878, it is expressly provided that at trials before courts-martial and courts of inquiry " the person c harged sh ^l_b.g_aL_conipotflnt -yitntf.ps at^lil§„fliKn.jeau est^but n ot otherwis e, and his failure^ to make such request shall npt^rea te any presumption against him . ' ' ' But parties testifying under this Act have no exceptional status or privileges; they must take the stand and be subject to cross-examination like other witnesses.' The submission by the accused of a. sworn written statement is not^ a legitimate exercise c^Jthe^ authority to testify conferred by the statute and such a statement should not be admiTEed in evidenceJa Y the court." " ' STATEMENTS AST) AKGUMENTS. The testimony in behalf of the accused having been completed, as evi- denced by the announcement made by him, in open court, to the effect that he has uo further testimony to offer, he is permitted to submit a statement to the court in support of the case presented in the evidence for the defense. This statement, which is usually iu the nature of an argument, may be sub- mitted by the accused in person; or, if he so desire, it may be presented by counsel acting in his behalf. If there be no stenographer present, the state- ment should be submitted in writing and appended to the record, in which event it should be signed by the accused. The term "statement," applied by custom of the service to this step in the procedure, indicates that it contains, in addition to matter of argument, allegations of fact, some of which may not have been presented to the court in the form of evidence during the course of the trial. In the early practice jOf courts-martial the statement was the only agency by means of which the accused could present to the court his side of the case, or bring to the atten- ^^'jtion of the court facts which had not been established by the testimony of iWitnesses'. As the accused now has the right to be sworn and to testify in «iis own behalf, the court should consider this fact in attaching weight to ' Disr. J. A. Gen., 460, par. 19. • « 20 Stat, at Large. 30. See G. C. M. O. 8, 16, Dept. of the Platte, 1879; do. 6, id., 1880; do. 34, Dept. of Texas, 1879. And compare Wiieelden to. Wilson, 44 Miiiiie, 11; Marx vs. People, 63 Barb., 618; Bralich vs. People, 65 id., 48; People m. McGungill, 41 Cal., 429; Clark rs. State, 50 Ind., 514. ' Spies vs. Illinois. 123 U. S. , 131 . If incompetent from any ciuse, the accused cannot testify in his own behalf. U. S. vs. Hollis, 48 Fed. Rep., 248. His credibility is for the jury (court) to determine. U. S. vs. Brown, 40 F. R., 457. * Dig. J. A. Gen., 749, par. 2. It may be admitted, however, as an unsworn state- ment to which the court will attach such weight as it believes it to deserve. See, also, the title " Competency" in the chapter entitled Evidence. TEE INCIDENTS OF TEE TRIAL. 133 such allegations of fact as may be embodied iu the statement and will prop- erly require something more in the way of corroboration than was formerly the case. A large freedom of expression in his statement to the court is allowable to an accused, especially in his comments upon the evidence. So an accused -^ may be permitted to reflect within reasonable limits upon the apparent I animus of his accuser or prosecutor, though a superior officer and of high )/ rank. But a n attack upon such a superior of a personal character and not j*^ apposite to the facts of the case is not legitimate ; nor is l anguag e of inarked disre spect employed toward the court. Matter of this de scription may / ind eed be required by the court to be om.iltgd-by t h e accu sed as a condition_J to his continuing his address or filing it with the record.' It is settled in our military procedure that the closing statement o r argument, where addresses are presented on both sides^shall be made on the / i A, pa.rt nf tlift pvnaep,i]f,jnn. The judge-advocate, liowe Yer, may , anJinpractTge / r frequently does, w aive the right of_^oif'ering_ any argument or remarks in reply to the address of the accused. On the other hand, the accused may waive the right, and the judge-advocate alone present a "statement," and the court is not authorized to deny this right to the judge-advocate.'' ^ Dig. 3.. A. Gen., 711, par. 3. In any case tried by court-martial tUe accused may, if lie thinks proper (and whether or not he has taken the stand as a witness *), present to the court a statement or address either verbal or iu writing. Such statement is not eiri- dence;^ as a personal defense or argument, however, it may and properly should be taken into consideration by the court. Ibid., 710, par. 1. Wliile the statement is not evidence, and the accused is not in general to be held hound by the arguinentalive declarations contained iu the same, yet if he clearly and unequivocally aduiits therein /uc^s material to the prosecution, such may properly be viewed by the court and tbe reviewing officer as practically facts of tbe case.J So where the accused, in his statement, fully admits that certain facts existed substantially as proved, be may be regarded as waiving objection to any irregularity in the form of the proof of the same. lUd., par. 2. ' Dig. J. A. Gen , 711, par. 4. The judge-advocate is entitled by usage to sum up the case and present an argument at the conclusion of the trial, even though the accused declines to make argument or statement. The court is not authorized to deny this right to be heard to tbe judge-advocate. Ibid., 463. par, 30. In our practice the judge-advocate is entitled to the closing argument or address to the court, aud he may present an address although the accused waives his right to present any; tbe function of the judge-advocate at this stage of the proceedings not i j being confined merely to a replying to the accused. T he iudge-advocate in his address jj^^ i s not authorized to read to the court evidence or w ritten ^state ment s not introducea /'^ upon the trial nng wliicii tpe accusea nas nag no opportunity' to controvert or couTmeut ' upUII. ' 'JAi'iT, 460, par. 21. 'Yhe publication by an officer, after his acquittal, of the statement presented by him •to the court on his trial, in which he reflected in violent and vituperative language upon the motive and conduct of an officer of the same regiment, his accuser, and denounced him as devoid of the instincts of a gentleman and a disgrace to the service, held to con- stitute a serious military offense, to the prejudice of good order and military discipline, if not indeed a violation of Art, 61; and further that it was no defense to such a publica- tion that the court on the trial had permitted the statement to be made and recorded. Ibid., 711, par. 5. * Sfp G. C. M. O. 3. Dept. of the Missouri, 1880. + That a sworn statement cannot be made to seiTe as the testimony of the accused as a witness under the Act of March 16, 1878. see Dig. J, A. Gen.. 749. par. 2. t Similarly as a fact clearly admitted or assumed in the course of a trial may be considered as much in tbe case as if it had been expressly proved. See Paige va. Fazackerly, 36 Barb., 398. 134: MILITARY LAW. 4rA': During the progress of the case, what are known as interlocutory ques- "1 tiiar&.airisft. which are decided by the court before proceeding with the trial. r Such Me objectJODS to mti^^^fifiea- on Jhe ground of competency ; t o the ad - mission, exclu sion, or relevancy, of ^testjm ony : and the like. Upon such questions both the prosecution and defense have a right to be heard, and the arguments presented on each side, together with the decision of the court, are made a part of the record. The party raising the issue is first heard, and is followed by the other side; in important questions the party upon whom the burden of proof is cast by the issue that is presented being allowed the right to address the court first, and later to make reply to the arguments of the opposite party. If the issue raised is one of considerable importance, involving the hearing of testimony, and if discussion of the questions presented is necessary before a just decision can be reached, the court is closed for the purpose of such discussion and decision; the judge-advocate, the accused and his counsel, the reporters, witnesses, and spectators, if any be present, withdraw, leaving in the room only the mem- bers of the court-martial. After discussion the question is put by the Pres- ident and is decided by a majority of votes ; the court is then reopened, the accused and judge-advocate returning, and the decision is announced by the President in open court and is entered upon the record by the judge- advocate. Where the issue raised is not important — as where the relevancy of a question is in issue — the matter is frequently decided by the court without leaving their seats. HOUKS OF SESSIOK. The 94th Article of War contained the requirement that "proceedings of trials shall be carried on between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court, require immediate example." This article waa expressly repealed by the Act of March 2. 1 901 ^ so that there is now no statutory restriction upon the hours of session save such as may be imposed by the convening authority or by the court itself in a particular trial. As the record of each day's proceedings should ie..cojnplfiJtfid.b„effiXe-the.bour appointed for the next meajm g-of-the. court, in ojder .that, the xecQrd-fil_the preceding day may be_^read at the, opening oi the session, should t he cou rt so~desire, tEe~length of each day's BessiQn,i^thlis.,seen to be deter mined b y the time^equired to make a fair copy of the previous day's proceedings. This will depend upon the manner in which the proceedings are recorded. If a stenographer is employed, the daily sessions can be longer than will be the case if the questions are reduced to writing and the proceedings are written up by the judge-advocate. Sessions on Sunday ; Closed Sessions ; Exclusion of Persons. — The re is no law prohibiting a court-martial of the United States from sitting_Qa.J3undaY^ THE INCIDENTS OF THE TRIAL. 135 and the fact that a sentence of such a court is adjudge d on that day can affect in no manner its vaiiaity in la w.' It i s within the power of t)ie conyenine; authority to direct a conrt-mar^ tial to hold a trial with closed doors when the case is of such a character that the publication of the_eY iaeiice would scandalize the service.' A "^flurj martiarts also" authorized, in jts discretion , to jit^wHh closed doors. Except, however, wtie n temporarily clo sed for deliberation, courts-martial in this country are almost inv aria bly open to the public d uring a trial.' A coji rt-martial is authorized to exclude fro m its session an y person who" it has good reason to believe will endeavor to intimidate_orinterrupt the witnesses, or_ otherwise comJnct iTirnself in a disorderly manner.* Adjournments. — Within the limits of time prescribed in the 94:th Article of War, a general court-martial has cctoplete control of the time and dura- tion of its sessions, and may meet and adjourn at such hours and for such reasons as it may deem expedient or advantageous to the public interests. It may regulate the length of its daily sessions, and may adjourn, at any instant of its session, for any reason that may commend itself to its judg- ment. When it adjourns it may fix the hour for its next meeting, or it may adjourn to meet at the call of the president. It may, by proper resolu- tion, fix the hours of its daily sessions, subject, however, to the qualification that such meetings must fall within the hours assigned in the statute. If, at a particular session, there be no agreement as to adjournment, it is the duty of the president at the hour of three p.m. to declare the court adjourned.' A court -martial in.s easiflH-at a military .past- or ^station .is.aatha?ized to ad joiirn to the quarters, at the same post or station, of a.^ck. witnesg and ' Dig. J. A. Gen., 318, par. 18. ' Judge-Adv. Geu. a Dig. J. A. Geu.. 318, par. 20. * Ibid., par. 21. ' Tiie adjournment from day to day of a military court is not required by law or regulalion to be authenticated by the signatures of the president and judge-advocate. Digest J. A. Gen., 145, par, 1. While the practice of noting the adjournment of the court at the end of the record of a triiil is a usual and proper one, and is often of service in indicating the sequence of the cases tried and tbe course and order of the business transacted, a statement of such adjournment is not an essential part of the record of proceedings, and its omission will not affect their validity. Ibid., par. 3. Where the order convening a military court is in the usual form, requiring it, generally, lo try such ciises as may be brought before it, an adjournment at some period of its sessions without a day fixed for its reassembling will not preclude its meeting again imd continuing its sessions till its business is terminated. Ibid., par. 3. An adjournment sine die of a court-marlial is quite without legal significance, having no more legal effect than a simple a Ij lurnment. Such an adjournment does not dissolve the court, since a military court has no power to terminate its own existence or divest its authority. Ibid., par. 4. After having entered upon a trial which has to be suspended on account of the absence of material witnesses or for other cause, a court-martial is authorized, in its discretion, to take up a new case not likely to involve an extended investigation, and proceed with it to its termination before resuming the trial of the first case. Ibid., 316, par. 12. 136 MILITARY LAW. there take his testimony if he is in fact, as certified by the medical officer, too ill to come to the court-room.' A conrt-martial has no power to terminate its own existence or function. Where, therefore, it has adjourned sine die, it may, without being formally reconvened in orders, reassemble and take up and try a case referred to it by the convening authority, through its president or judge-advocate, pre- cisely as if it had not adjourned at all. It is its duty, indeed, to hold itself in readiness to try all cases so referred until formally dissolved by the con- vening officer or his successor in the command." A court-martial is not' legally dissolved till officially informed of an order from competent authority dissolving it. The proceedings of a conrt- martial had after the date of an order dissolving it, but before the court has become officially ad vised, of such order, will thus be quite regular and valid. Where an order dissolving forthwith a court-martial has been duly officially received by the court and has thus taken effect, an order subsequently received revoking this order will be entirely futile. It will not revive the court, which, to be qualified for further action, must be formally recon- vened as a new and distinct tribunal.' 'A "RYP.ftpt-. wbpr^;-. ^t| ,gi| ,st,a.ijis-a ..xibflllp.iifre-n.Tif]p.r Art.. 88,A COnxtaIliaxiiaLis_ / not authorized to dispersR w ith t^e attenda,nce of a m ember.'' It cann ot excuse a member to enable h im to attend to other duties. For such purp ose , _he_must^ be duly relieved by the convening^ authority. ° Absence of Member or Judge- Advocate. — It_d£iesn£tinvalidat£jii£L,pro- I ceedings of a court-martial Jhat a member, who has, been, prese nt .during a , portion ol the trial, and has then absented himself during a portion, h as subsequently resumed his seat on Jhe court and taken part in the trial and judgment. Nor is tbe legal validity of the proceedings a ffected by the adding of a new member to the. court pending the trial. In either case, however, the testimony which has been introduced and the raaterial pro- ceedings which have been had while the new or absent member was not present should be communicated to him before he enters or re-enters upon his duties as a member. Such was the ruling of the Secretary of War on Genl. Hull's trial, and this precedent was followed in repeated though not frequent cases during the late war. For a member, however, who Ji^as^en absent_during a substantial part of a trial to return and take part in a con- viction and sentence is certainly a marked irregularity, and one which may well induce a disapproval of the findings and sentence in a case where there is reason to believe that the accused may have suffered material disadvantage from the member's action. It is of course to be understood that a member ' Dig. J. A. Gen., 146, par. 5; see ff. 0. M. O. 37, Depaitment of tbe East, 1870. ° Ibid., 317, par. 18. » lUd., par. 14. * VII Opin. Att.-Gen., 98. If it be found necessary, on account of the sickness of a witness, to adjourn to a place other than in which the court is ordered to sit, the authority of the convening authority must be obtained in advance of the journey. « Dig. J. A. Gen., 317, par. 15. THE INCIDENTS OF THE TRIAL. 137 cannot legally resume his seat where, by his absenting himself, the court has been reduced below five members.' An absence of the judge-advocate from the court during the trial does not ^erse affect the validity of the proceedings, but is of course to be avoided if possible. When the judge-advocate is obliged to absent himself tem- porarily, the court should in general suspend the proceedings for the time; or if his absence is to be prolonged, should adjourn for a certain period.^ New Members. — The question of changes in membership has already been discussed, and it, is only necessary to observe, at this point, that to * ' add^ a new member to a military _C-0]irt after any material part of the trial has be en gone through with must always be, a most- undesirable fflfiaaflre an d one n at-to-be-^esorted to except in an exceptional jcase,and to prevent fa ilure of jn s jtice. Adding a member after all the testimony has beenTmEro- duced and nothing remains except the finding and sentence is believed to be witiiout precedent. ' ' ' Performance of Other Duty by Member of Court or by the Judge- Advocate. — The perform ance of other duties by members of courts-martial is regulated b y the ArmY_Eegnlati ons, which providg_that_^''_^_amember stationed atitjiB^^anfi -lyliprp; p,^ l.'^.f.t-T^i'ji.fiM, .ffll^?, i" Ji^ib^*^ t'^ rlnfy jjith^is command during the adj_"" mmp.u't. -oLftonjiLimtfn. day to day." ' The rule in respect to thejudge-adxafiftte _ ia.nat quite jhe sjime,^ .§i^Sg.-.JH§. ^i!JigSAj:i^5JAkg...3^l^ of the members, do not c ease with the daily adjournment of the court; but " a jnrlcrfl-a,flynp.3,-(;iy!fl|.a, fiOT"''t,-niartial mav be detailed to perform other duty, as t haE^oFofficer of the day^r member of a board of survey, if such duty will not interfe re- with his duti es as judge-a dypcate. In general, how- ever, no duties inaddition to those incidental to his function as judge- advocate should be impo s ed upon him pending an important trial." ' ' Dig. J. A. Gea., 494, par. 3. A member of a court-martial, though strictly answerable only to tlie convening authority for a neglect to be present at a session of the court, will properly, when prevented from attending, communicate the cause of his absence to the president or judge-advocate, so that the same may be entered in the pro- ceedings. Where a member, on reappearing after an absence from a session, fails to offer any explanation of such absence, it will be proper for the president of the court to ask of him such statement as to the cause of his absence as he may think proper to make. It need scarcely be added that the absence of a member does not affect the legality of the procfedlngs, provided a quorum of members remain.* Ibid., par. 2; see, also. Dig. J. A. Gen., p. 495, par. 4. » Ibid., 460, par. 18; Ives, 142. ' Ibid.,4:U, par. 3. * Paragraph 918, Army Regulations of 1895. As no more time is required of a member in the performance of court-martial duty than that which is consumed by the daily sessions of the court, the present practice \inder the regulation is to require mem- bers stationed at the place at which the court is assembled to discharge such regular or C'lsual military duties as are or can be performed during the periods of adjournment from day to day. "In an emergency, indeed, arising out of a state of war or other public exigency, additional service may be imposed upon such oflBcers ; in a case of this kind, however, their service on the court would preferably be temporarily suspended." Dig. J. A. Gen., 498, par. 1. 5 Dig. J. A. Gen., 460, par 20. * 7. Opin. Att. Gen.; 101. y '/ 138 MILITARY LAW. Redaced Membership. — "Where, in the course of a trial, the number of the members of a general court-martial is reduced by reason of absence, challenge, or the relieving of members, the court may legally proceed with its business so long as five members, the minimum quorum, remain; it is otherwise, however, where the number is thus reduced below five.' While a number of members less than five cannot be organized as a court or proceed with a trial, they may perform such acts as are preliminary to the organization and action of the court. Less than five members may adjourn from day to day; and where five are present and one of them is challenged, the remaining four may determine upon the sufficiency of the objection.' DELIBERATIONS. Behavior of Members.— S ave for the requirement of the R7th , Art icle of War that " all members of a court-martial are to behave with dfice7iP,Y a.rH calmness," and for the provision of the 95th Article- that " members of a cour t-ma rtial in giviflgJ:hjai£.YO tes_shall be gin with the youngest in .. commi s- sion, "_ Jhe s tatutes are silent respe cting the jprocediireuijf courts-martial as delib erative bod ies. The effect of 'the "sTatutes above cited, and of the interpretations that have been placed upon them from time to time by the highest military authority, is to insure an absolute equality of membership in all matters having to do with the preparation and expression of opinions. The control exercised by the President of the court-martial is, as has been seen, that -Yested in the chairman of a deliberative body by the ordinary rules of parliamentary procedure, and partakes In no respect of the nature of military command. As the organ of the court, he preserves order in its presence and gives, as a matter " of course, the directions necessary to the regular and proper conduct of the proceedings; but a failure to comply with a direction given by him, while it may constitute ' conduct to the prejudice of good order and military discipline,' cannot properly be charged as a ' disobedience of a lawful command of a superior officer,' in violation of Article 21.'" ' Dig. J. A. Gen., 87, par. 3. ' Ibid., pur. 4. A court reduced to four members and thereupon adjourning for an indefinite period does not dissolve itself. In adjourning it should report the facts to the convening authority and await his orders. He may at any time complete it by the addition of a new member or members, and order it to reiissemble for business. Ibid., 88, par. 5. Where, though reduced by the absence of members, operation of challenges, «tc , to below five members a court yet proceeds with and concludes the trial, its furtlier proceedings, including its finding and sentence (if any), are unauthorized and inoperalive. Ibid., par. 6. 3 Dig. J. A. Gen., 609, par. 4. The president of a military court has no command as such. As presiden the cannot give an order to any other member. Ibid. See, also, the title The Officers of OouriS' ■martial in the chapter entitled The Incidents op thb Tkial. In deliberations on questions raised upon atrial, as well as in the finding and the adjudging of the sentence, the presiding member is on a perfect equality with the other THE INOWENTS OF THE TBIAL. 139 For the president of a court-martial to assume Jjj,. adjoura the court against the Tote~or the"niaiorit2^ of the members would be an unauthorized act and a grave'Trregularity, properly juhjgcting him to a charge under the i 62d Article.' CONTEMPT OF COURT. The 86th Article of War confers upon a court-martial the power to *' punish, at discretion, any person who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder." The contemptd^cribed i n the . A^J .S l.g-i^ lJi^kBS.'JyB. .kiJiiia la^w as d irect or criminal contempt, that "Wj^ act or omission constituting the offense must havete^en place in thg^j^gtu^presence of the^court itself. - The term constructive conte mpt _ap^plies to similar cond,uct committedout- si de" the presence ,Q£l t!fc_qpnr"t.l.jQir to a willful failure to obey its law ful man date . Over this fo rm of. contempt courts-m ar tial have no jurisdiction ; if, however, constructive contempt be charged agains^a military _person, the court may cause charges to be prepared and submitted,toJhe proper conven- ing authority ;but if the__oSe^^IFe a civilian, not subject to military juris- diction, the court^njartiaLis -absolutely without power to proceed in the m atter, aa d-can nejther^^p^X-^ .remedy nor request its application by the civi lauthon -ty. Being a tribunal of special and limited jurisdiction, a court-martial has only statutory powers. Its judicial authority being derived wholly from statutes (chiefly from the Articles of War), it can exercise no common -law functions, such, for example, as the general power to punish for contempt. Its origin and authority being statutory, the several enactments investing it with its powers must be closely followed. Ifo presumption can be made in favor of its jurisdiction." members. He lias no casting vote, nor, if the vote is even, does his vote have any- greater or other weight or efEect than that of any other member. Ibid., par. 3. " A president of the court will not be announced. The officer highest in rank present will act as president." Besides his duties and privileges iis a member, the president is the organ of the court to maintain order and conduct its business. He speaks and acts for the court in every instnuce where a rule of action has been prescribed bylaw, regula- tions, or its own resoluiion. He administers the oath to the judge-advocate, and authenticates by his signature all acts, orders, and proceedings of the court requiring it. Manual for Courts-martial, 23, par. 1. ' Dig. J. A. Gen., 609, par. 3. ' Dig. J. A. Gen., 319, par. 25. The authority of a court-martial to punish as for a contempt, being confined by the code (Art. 86) to cases of acts of menace or disorder commiited in its pre-ence, such a couit would not be empowered to punish, as being in contempt, a witness afipearing before it whose attendance it had been necessary to compel by process of attachment, ibid., 759, par. 33. A court martial has none of the common-law power to punish for contempt vested in the ordinary courts of justice, but only such authority as is given it by this article. Thus, held thiit a court-martial would not be authorized to punish, as for a contempt, under this Article (or otherwise), a civilian witness duly summoned and appearing before it, but, when put on the stand, declining (without disorder) to testify. Ibid., 99, par. 3. See, also, 18 Opin. Atty.-Gen., 378. 140 MILITARY LAW. Procedure. — "^herea contempt within the description of this Article h as been committed'andThe court deem s it T)rop.eLihat".theI.Qffender shall \ifl pnnished, the prop er course jp <-" g"gpf!nii <^hf- rfign 1a,r hnsiness and, after giymg the party an opportunity to jjaJteaB^JJl ieaBlailiatiimii.'.,.ti« pmnfied^ if the expla.nation is^i ns u fficieni^ to i mpnsp Ji„p,|,ijjjg|ijngini/v, resumiiig ^thereu po n the original proceedin gs. The action taken is properly summary, a form al trial not being called for, and xEe approvalof'the reviewing ajjthorit^J^jiot necessary either to the validity of the sentence, or as a, condition .,pj;eaai^t to iisexecution ; t he punishment imposed by the. court being ^.oaaiacLiaiSL. effect by the command ing ofiicer^of the.post or place at^w^fiii^the triaLis.in ; grogre ss. Close co nfinement , ,y) qji!^.i;ters or in tt^ p ^ giiard-house during the trial of the pending case, or forfeiture of a reas on abl e^mgunt^^ of pay, has been the more usual punishment, instead of proceeding against a military lOperson for a contempt in the mode contemplated by this Article, the altern a- tive course may be p ursued of bringing himto trial before^new^ court on a fliarorft fnr a. disoHfir nn'flpr' Arhinlo 62." THE FIN-DING. The arguments or statements having been submitted by or in behalf of the prosecution and defense, the court is cleared and closed for deliberation and finding. Whenever, diiri; n£ tbe progress of the trial, the cou rt goes into closed _session. the -ii)Hp;p-arlvnp,a<^R^ t he clerkj. tbe., reporter, the in terp retflr, and all other officers or eniployees.. of the court, as_Efi]J_iis_lhe_accilsed_and his counsel, and the speptators-and-bv-stawlflrB if thprp bp any, -^yifyK^rQw from its presen ce." When the court has thus been cleared and closed, it is 'prepared to engage iu deliberation with a yiew to determine the guilt or innocence of the accused. It has been seen that iti such collateral issues as may arise during the progress of a court-martial trial, the question at issue is determined by a mere preponderance of evidence ; the proof required to sustain a conviction, however, is considerably stronger than this, and a find- ing adverse to an accused person will only be justified when the court is satisfied of his guilt beyond a reasonable doubt. It has been seen that it is the function of the jury in a criminal trial to determine the weight that is to be attached to the testimony submitted ' See General Court-martial Orders, No. 37, Fourth Military District, 1868. ' Jhid.. 99. piir. 3. Compare Samuel, 634; Simuums, §434. The latter course has not iufrequeutly been Jidopted in our practice. ^ It sometimes happens, in the trial of important cases, that the sessions of Ihe court are held in a room capable of accommodating a large number of spectators, in which event it may not be desirable to require the spectators to withdraw whenever the court is closed for deliberation. In such cases, if there be a suitable room, convenient to that used for the trial, the court itself may withdraw for the purpose of deliberation, returning to the court-room when its deliberations have been concluded. The record in such case should show that the court "withdrew for deliberation," and on its conclusiou that the court "returned to the court-room," etc. ^ THE INGIDENT8 OF THE TRIAL. 14:1 by either side, and also to determine the credibility of each of the witnesses. ' As this duty falls upon the members in a trial by court-martial, it becomes necessary for them to ascertain, first, what is alleged' against the accused, and, second, whether the allegations contained in the charges and specifica- tions haye been proved beyond a reasonable doubt. These ends will be attained by reading over the several charges and specifications in connection with the eyidence adduced in their support or denial. For this purpose the testimony on both sides may be read, and, after full discussion of the ques- tions of law and fact involved, having assigned to each piece of testimony its true evidential value, the court is prepared to determine whether, as to each charge and specification, the act or omission charged has been proved with the degree of strictness that the law requires. Reasonable Doubt. — The proof sabmitted in a court-martial trial must exclude reasonable doubt, but not of necessity all doubt. " A _ r e cisonable doubt i s an honest, substantial misgiving gen erated by the insuffic iency of t'ne pro of; not a doubt suggested b y the ingenuity of J:he_co]msel. or |^^^ un warranted by the testimo ny, nor born of a ra'^a^fH^JftSliiiMion to. permit [ cCi t he defendant to escapa,^ '^"^ P''0'^P^^4.-.i^..?XS£^^LLJSE-.^ifflJ3£. tt^a§£^^' \ ^"^ n ected with him ; " it is not a. fanciiuT conjecture which an imaginative man may conjure up, but a doubt which reasonably fiows from the evidence or want of evidence; a doubt for which a sensible man could give a good reason, which reason must be based upon the evidence or .want of evidence ; such a doubt as a sensible man would act upon in \na, own concerns." " Voting. — Having maturely considered the evidence adduced in connec- tion with the arguments or statements submitted in behalf of the prosecu- tion and defense, the court is ready to pass upon the question of guilt or innocence. In voting, the 95th Article requires that the "youngest in . commission" shall vote first, and the votes are therefore taken in the inverse order of rank. The charges and specifications are voted upon in the same order which was followed in pleading, the first specification to the first charge being passed upon, then the second, third, etc., in order, followed ' In a case where the evidence is conflicting, it is an important part of the judgment of the court to determine the measure of the credibility to be attached to the several wit- nesses. In its finding, therefore, the court may. in conneclion with the testimony, properly take into consideration the appearance and deportment of llie witnesses on the stand, and their manner of testifying especially when under cros--exaininatioii. Dig. J. A. Gen., 412, par. 14. See, also, the chapter entitled The Rbvibwing Authority, and compare Oallanan M. Shaw, 34 Iowa, 441. Tliat a court cannot arbitrarily disbelieve and reject from consideration the state- ment, dnly in evidence, of a witness not clearly shown to, have perjured himself is held in the recent case of Evans w. George, 80 111. 51. See, also, the article Credibility of -Witnesses in the chapter entitled Evidence. 2 U. S. vs. Harper, 33 Fed. Rep., 471. ' Hopt m. People, 130 U. S., 430; U. S. m. Jones, 31 Fed. Rep., 718; U. S. m. Meaglier, 37 ibid., 875; IT. S. vs. Iluirhes, 34 id., 733; U. S. vs. Zes Cloya, 35 id., 493; U S. m. McKenzie, id., 836; U. B. vs. King, 34 ibid., 303; U. S. m. Means, 43 ibid. , 599. 142 MILITARY LAW. by a vote upon the charge itself; the other charges are voted upon in the same manner. A majority vote determines the Joesti^^^galiLaciBPo- ^cence in every casg^ anything TSs than''a" majority J;i|iing.iAStt£Sjca£aiJ81Uailch ^rpose ;. hence a tie vote Ts in^b s^s^a^findjng jaLafit . EIQy en, ^hich^m law is equivalent to an acqui^al. ' Basis of Finding. — It has been seen that each member of a court-martial is required, by the obligation of his oath, to " well and truly try and deter- mine " the matter at issue " according to evidence." The finding of the court, therefore, should be governed by the evidence, considered in connec- tion with the plea. "Where no evidence is introduced, the general rule is that the finding should conform to the plea.' There should be a separate and independent finding upon each charge and specification, and each separate finding should cover the charge or gpecification as to which it is made; so that if any charge or specification is deemed by the court to be proved only in part, the finding shall show specifi- cally what is found to be proved and what not.° The finding on the charge should be supported by the finding on the specification (or specifications), and the two findings should be consistent with each other. A finding of guilty on the charge would be quite incon- sistent with a finding of not guilty, or guilty without attaching criminality, on the specification. So a finding of guilty upon a well-pleaded specifica- tion, apposite to the chE^rge, followed by a finding of not guilty either of the offense charged or some lesser offense included in it, would be an incon- gruous verdict. No matter how many specifications there may be, it requires a finding of guilty or not guilty on but one specification (apposite to the charge) to support a similar finding upon the charge.* Exceptions and Substitutions. — It is a peculiarity of the finding at mili- tary law that a court-martial, where of opinion that any portion of the allegations in a specification is not proved, is authorized to find the accused guilty of a part of a specification only, excepting the remainder; or, in finding him guilty of the whole (or any part), to substitute correct words or allegations in the place of such as are shown by the evidence to have been inserted through error. And provided the exceptions or substitutions leave ' Where, upon Ihe flnding, the vote on a charsre or specification is tied, the accused is iu liiw found not guilty thereon ; a majority vote being necessary to any conviction. A statement in the record to the effect that the vote upon a specification, etc., was a tie and lh:it the accused was therefore acquitted is of course irregular and improper. Dig. J. A. Gen., 412, par. 13. 2 Ibid., 408, par. 1. ' Ibid. , par. 3. ^ Ibid., par. 2. "Where there is but one specification, it is not competent for a court- martial to find an accused not guilty of the specification and yet guilty of the charge. By flnding him not guilty of the specification they acquit him of all that goes to con- stittite the offense described in tlie cliarge. Where the court believe that the accused is guilty of the charge but not precisely as laid in the specification, they should find him guilty of the latter, but with such exceptions or substitutions as may be necessary to present the facts as prove 1 on the trial, and then guilty of the charge. Ibid., 409, par. 5. THE lifCIDENTS OF TEE TRIAL. 143 the specification still appropriate to the charge and legally suflBcient there- under, the court may then properly find the accused guilty of the charge in the usual manner.' Familiar instances of the exercise of the authority to except and substi- tute in a finding of guilty occur in cases where, in the specification, the name or rank of the accused or some other person is erroneously designated, or there is an erroneous averment of time or place, or a mistaken date, or an incorrect statement as to amount, quantity, quality, or other particular, of funds or other property, etc." In finding guilty upon a specification, to except from such finding the word or words which express the gravamen of the act as charged and found is contradictory and irregular; as, for example, from a finding of guilty on a specification to a charge of fraud under Art. 60, to specially except the word " fraudulent " or " fraudulently," while at the same time finding the accused guilty generally upon the charge.' > Dig. J. A. Gen., 409, par. 4. ' Ibid., par. 6. The practice of making exceptions and -substitutions in the findings is well illustrated by the finding, authorized at military law when called for by the evidence, of a lesser kindred offense included as a constituent element in the specific offense cha/rged. Of this form of verdict the most familiar instance is the finding of guilty of absence without leave under a charge of desertion. A full acquittal of deser- tion includes, of course, an absence without leave involved in it ; but where the evidence falls short of establishing a desertion but shows an unauthorized absenting of himself by the accused, he may and should be convicted of absence without leave as his aciual offense. In arriving at this conclusion, the findings on the specification and charge should be consistent, and the finding on the former should be such as to support the latter. In their finding of gUilty upon the specification, the court should in terms except from its application such words of the specification as allege or describe desertion exclusively, and sub-stitute words describing the lesser offense ; the words " did desert," for example, being excepted, and the words 'did absent himself without authority" being substituted. The finding on the charge should regularly be "not guilty, but guilty of absence without leave." Ibid., 410 par. 8. A simple finding, however, of guilty of absence without leave, though an irregular form, would amount in law to an acquittal of the higlier offense charged. Compare Morehead «s. State, 34 Ohio St., 212. ^ Dig. .1. A. Gen,, 409, par. 7. But the authority to find guilty of a minor included offense, or otherwise to make exceptions or substitutions in the finding, cannot justify the conviction of the accused of an offense entirely separate and distinct in its nature from that charged Thus held tlmt it was not a finding of a lesser included offense to find the accused guilty merely of absence without leave under a charge of a violation of the 42d Article'of War in abandoning his post before the enemy. And so held of a finding, uiider a charge of a violation of Article 39, of not euilty, but guilty of a viola- tion of Article 40. So where a soldier charged with " conduct to the pre.iudice of good oriler and military di-'cipline," in concealing the fact that a fellow soldier had appro- priated to his own use certain public property, was found not guilty of the specification as laid, but guilty of " having stolen the property himself," and guilty of the charge, and was accordingly sentenced to imprisonment, held that such a finding was mani- festly unauthorized. Having been found not guilty of the offense .set forth in the speci- fication and which alone he was called upon to answer, he should have been acquitted on both charge and specification : the offense of which he was found guilty was not alleged against him, and not being included in that charged could not properly form the subject of a finding. The remission of his sentence therefore recommended. Ibid., 410, par. 9. In a case where a court-martial made such exceptions and substitutions in its finding upon the specification to a charge of " forgery to the prejudice of good order and mili- tary discipline" as to negative the material allegation of false writing and leave no legal basis for the finding arrived at of guiltv of tlie charire, advised that the findings be disapproved as incongruous and insufficient to sustain the sentence. Ibid. , 418, par. 15. lil MILITARY LAW. Finding as to a Lesser Kindred or Included Offense. — There may also be a finding of not guilty as to the major or principal offense charged, and a finding of gnilty of a lesser kindred and included offense.' " Of this form of verdict the most familiar instance is the finding of guilty of absence ■without leave under a charge of desertion. A full acquittal of desertion includes, of course, an absence without leave involved in it; but where the evidence falls short of establishing a desertion bnt shows an unauthorized absenting of himself by the accused, he may and should be convicted of absence without leave as his actual offense.'' But the authority t o find guilty of a minor included offense, or otheyyj se to make exceptions or substitution s in the findin g , cannot Jastify the con - vTcfioS "of the accused of_an offen se enti rdy separatg_and^^disti n .c t_jn its nature from that charged.* In arriving at this conclusion, the findings on the specification and charge should be consistent, and the finding on the former should be such as to support the latter. In their finding of guilty upon a specification alleging desertion, for example, the court should in terms except from its application such words of the specification as allege or describe desertion exclusively, and substitute words describing the lesser offense; the words " did desert," for example, being excepted, and the words " did absent himself without authority" being substituted. The finding on the charge should then be " not guilty, but guilty of absence without leave." * T|he converse of the proposition above stat e d is n ot true, an d a convictio n of a gray er or more serious offense in lie.tt„^ that charged has never be en sanctioned! such a' rin3Tug, indeed, would constitute a departur e from t he ' The practice of making exceptions and substitutions in tbe findings is well illus- trated by the finding, authorized at military law when called for by the evidence, of a lesser kindred offense included as a constituent element in tlie specific offense charged. Dig. J. A. Gen., 410, par. 8; XIII Opin. Att.-6en., 460. Compare Reynolds vs. People, 83 111. 479, and note the similar authority given in criminal cases in the United States courts by Sec. 1035, Rev. Sts. See, also, note 3, p. 143 ante. * Dig. J. A. Gen.. 410, par. 8. Held that a finding, under a charge of desertion, of not guilty of desertion but guilty of a violation of the 40th Article of War was not allowable and should be disapproved ; the offense made punishable by that Article — quitting guard, etc. — not necessarily being or involving an absence without leave in the military sense, and the finding not being necessarily a conviction of the absence without leave contained in desertion. Ibid., 413, par. 16. 3 lbid.,ilQ, par. 9. * Ibid., par. 8. The authority thus to find, however, has not been extended beyond the case indicated in the last paragraph ; the reverse, for example, of this form of find- ing has never been sanctioned. A finding of guilty of a certain specific offense under a charge of another specific offense, or under a charge of " conduct unbecoming an officer md a geiitlemivn," or of "conduct to the prejudice of good order and military discipline," would be wholly irregular and invalid. Thus a finding of guilty of dis- obedience of orders (or of a violation of Article 31), under a charge of mutiny in violation of Article 23, or a finding of drunkenness on duty (or of a violation of Article 38), under a charge for a drunken disorder laid under Article 63 or 61, would be wholly unauthorized. And, if such a finding were made, it could scarcely fail to be formally disapproved. And so of a finiling of "conduct unbecoming an officer and a gentleman" under a charge of "conduct to the prejudice of good order and military discipline." Ibid., 411, par. 11. THE INGWENTS OF THE TRIAL. 145 fun dament al ra le of in te rpretation of criminal statutes; Le., ^sA, they are to be construed liberally as to those parts which are in favor of the accused, and strictly a s to t hose clauses which are j;^inst him. ' ""~" Finding under 61st and 62d Articles of War.— It is a further peculiarity of the finding at military law that where an accused is charged with " con- duct unbecoming an officer and a gentleman," or with any specific offense made punishable by the Articles of War, and the court is of opinion thai while the material allegations in the specification or specifications are sub- stantially made oht they do not fully sustain the charge as laid, but do clearly establish the commission of a neglect of military duty or a disorder in breach of military discipline, as involved in the acts alleged, the accused may properly be found guilty of the specification (or specifications), and not guilty of the charge but guilty of " conduct to the prejudice of good order and military discipline" Such a form of finding is now common in our practice (especially where the charge is laid under Art. 61), and its legality is no longer questioned." Protests. — Where the majority of the members of a court-martial have ] come to a decision upon ajii y CLueslIoBL'r.a ise.d, in:, the course of the proceedings, \ ./^ or upon tne finding or sentence, no individual of the minority, whether the I "" p f^jdenF or .other member^is entitled to have a protest made by himself/ againstsuch decision entered upon Jhe record. The conclusions of the court' (except in cases co^death-sentences, where a concurrence of two thirds is required) are to be determined invariably by the vote of the majority of its members, and it is much less important that individual members should have an opportunity of publishing their personal convictions than that the action of the court should appear upon the formal record as that of the aggregate body, and should carry weight and have effect as such; 'Nor can a protest (again st the finding or otherwise)^^ minority of_ the members m^ he ^ appen d ed tn th a.j-jejC0r5' oh ' a separate paper. ' ~^"""' Acquittals. — It has been seen that, in order to Convict, the evidence should be such as to satisfy the court of the guilt of the accused " beyond a reasonable doubt." If, therefore, such reasonable doubt exists, it must find ' Dig. .1. A. Gen., 411, par. 11. 'Ibid., par. 10. The general finding of "conduct to the prejudice,'' etc., in the cases indicated in the paragraph above cited, is sanctioned in order to prevent a failure of justice, not for the purpose of relieving the accused of any of his due share of culpaliililj. It should not, therefore, be resorted to where the specific oft'ense cliarged is substantially made out by the testimony. Thus in a case where the facts set forth in the specification to a charge of "conduct unbecoming an ofl[icer and a gentleman," and clearly established by the evidence, fixed unmistakably upon the accused dishonorable behavior compromising him oflicially and socially, held that, a find- ing by the court that he was guilty only of "conduct to the prejudice of good order and military discipline " should not be accepted, but that the court should be reconvened for the purpose of inducing, if practicable, a finding in accordance with the facts and with justice. Ibid., 412, par. 12 ; see also iMd., 411. par. 11. a Dig. J. A. Gen., 619. See also Simmons, § 469 ; Hough (Precedents), 703, note 4. 1 4:6 MILITAR T LA W. expression in a finding of " not guilty " as to the specification in respect to which the doubt exists, and the accused is entitled to an acquittal. The same conclusion is reached where there is a tie Tote/ or where a sentence is not supported by the majority which is expressly required to support a con- viction in respect to certain Articles of War.' Forms of Acquittal. — ^An acquittal, in th'e above cases, is an inevitable consequence of the finding of " not guilty," and is entered upon the record in the following form: "and the court does therefore acquit him, A B, th Kegiment of Infantry." Where the accused is a commissioned oflB.cer and the circumstances, as set forth in the evidence, are such as to justify the conduct which has been made the subject of inquiry or to nega- tive completely the theory of guilt, a form of acquittal is sometimes agreed to in the following form: " and the court does therefore fully " or " honor- ably acquit him," etc., or "fully and honorably acquit." Such a con- clusion is warranted where the effect of conviction would have been to cast a stigma upon the personal or professional character of the accused. As charges are now required to be carefully investigated prior to their refer- ence to courts-martial for trial, additions of the kind above mentioned have become less freqiient than was formerly the case.' Remarks in Connection with Findings and Sentences. — It is a well- established principle of court-martial procedure that a court may, in a> proper case, make additions to its finding in the form of remarks or animad- versions upon the conduct of parties or witnesses, or the motives which have actuated conduct in particular cases. " Courts-martial, in acquitting, have sometimes remarked in very strong terms of disapprobation on the conduct of the prosecutor, and in reprehension of occurrences prejudicial to discipline which have appeared in their records. They have also de- clared charges to be frivolous, vexatious, and groundless, and sometimes malicious, and not originating in a desire to promote the good of the service^ but proceeding from warmth of temper or ignorance, or from insubordina- tion, or personal animosity to tlie accused, and from resentment, revenge, conspiracy, or other improper motives. So, on the other hand, courts have Jrequently declared that, in their opinion, the prosecutor was actuated by rfo illiberal or improper motives, but from a sense of duty and regard for the Benefit of the service, or that his conduct has been laudable and honorable or regular and impartial; such remarks by the court have generally been produced by assertions or insinuations of the prisoner, not supported by evi- ' A tie vote upon any proposition submitted to tlie court is equivalent to a vote in the negative, — a majority vote being necessary to a determination in the affirmative, — and the proposition is not approved. Where the vote is a tie upon an objection to testimony, the objection is not sustained Where it is tied upon a certain proposed finding or form of sentence, the same is not adopted. Dig. J. A. Gen., 747. !* See 96th Article of War. See, also, Dig. J. A.- Gen., 112, par. 1. » Simmons, § 700. THE INCIDENTS OF THE TRIAL. 14T deace; and have occasionally accompanied an acquittal, at other times a conviction. ' In submitting such remarks or additions to its finding, the court should bear in mind the well-defined limits which divide the functions of the court- martial from those of the reviewing officer. The officer appointing the court is responsible for the maintenance of discipline in the command; the func- tions of a court-martial being restricted to the trial of the particular case before it. Its animadversions, therefore, should be rigidly limited to matters disclosed by the evidence submitted in the course of the trial, and should relate to parties thereto, to witnesses who have testified, or to persons whose condact or motives have been made the subject of inquiry. For the same reason the animadversions, if made, should be specific in character and not general; conduct not sufficiently marked or decided to be susceptible of characterization ought not to be made the subject of either comment or stricture. PREVIOUS CON^TICTIONS. Procedure. — "In every case where evidence of previous convictions' is admissible, and the accused is couvicted of the offense, the courts after determining its findings and before awarding sentence, will be opened for the purpose of ascertaining whether there be such evidence and, if so, of hearing it.'" The judge-advocate and the accused and his counsel return to the presence of the court, and the former submits such evidence of previous convictions as have been referred to the court by the proper convening authority.* In presenting such evidence the rales regalating the presenta- tion of documentary testimony are applied by the court. ' The remarking by the court, iu connection with the finding or sentence, unfavo;-- ably upon an officer or soldier (other than the accused) whose conduct is exhibited by the testimony, or upon an act Or practice deemed proper to be noted in the interests of military discipline, though now comparatively unusual, is sanctioned by the authorities as permissible and regular in a proper case. Dig. J. A. Gen., 318, par. 26. See. also, Simmons, §§ 699-707; Kennedy, 196-7; DeHart, 183-8; O'Brien, 268. In Jekyll m. Moore, 2 Bos. & Pul., 341, the expression of opinion by a court-martial, in acquitting an accused, that the prosecution had been actuated by malice was held not to constitute a libel. ^ By " previous conviction " is meant a conviction where the sentence has been approved by competent authority. This refers to all trials except where the post com- mander sits as a summary court, when no approval of the sentence is required by law. For instructions as to when evidence of previous convictions must be submitted with charges, see page 19, note 1 ; and for instructions to summary courts regarding previous convictions, see Manual for Courts-martial, page 78. ^ Manual for Courts-martial, 49, par. 1. See par. 929, A. li., 1895, and Manual for Courts-martial, p. 60, par. 2. * Held that the reopening of the court, after a conviction, to receive evidence of previous convictions was not a violation of the 84th Article of "War. The procedure was designed to carry out the spirit of the legislation which excluded judge-advocates from closed sessions — to place prosecution and defense on a more equal footing, by allowing the accused to be present when evidence of previous convictions is submitted and to scrutinize the same and test their legality. Dig. J. A. Gen., 609, par. 1. A court-martial refused to take into consideration evidence of previous convictions 148 MILITARY LAW. Proof of Previous Convictions. — Previous convictions by coarts-martial other than the summary court are proved by the records of the trials or by duly authenticated orders promulgating them.' The proper evidence of previous convictions by summary court is the copy of a summary-court record furnished to company and other commanders, as required by paragraph 932, Army Kegulations of 1895, or one furnished for the purpose and certified to be a true copy by the post commander or adjutant.'' The previous convictions are not limited to those for offenses similar to the one for which the accused is on trial. The object is " to see if the prisoner is an old offender, and therefore less entitled to leniency than if on trial for his first offense." This information might not be fully obtained if evidence of previous convictions of similar offenses only were laid before the court. It has no bearing upon the question of guilt of the particular charge on trial, but only upon the amount and kind of punishment to be awarded,' and to this end it is proper that all previous convictions should be known. As the accused is not on trial for the offenses evidence of the previous con- victions of which it is proposed to introduce, the 103d Article of War does not apply.' THE SEN-TENCB. Mandatory and Discretionary Sentences. — A finding having been reached, and the evidence of previous convictions, if any such there be, offered by the judge-advocate, on the grounds, first, that accused had been previously punished for each ollense; second, that he had not introduced any testimony in support of his character, and, in the absence of such testimony, the rules of evidence preclude attacking the same. ZfsW that such objections were not well taken. Dig. J. A. Gen., 610, par. 3. ' If the order of publication does not show the actual offense, as by not setting forth the specifications, the original proceedings (i.e., the original or a duly certified copy) should be put in evidence. A memorandum of the previous convictions is not sufficient; they must be shown either by the records of the trials or by duly authen- ticated copies of the orders of promulgation. It is unauthorized for the judge-advocate to introduce, or the court to admit, as evidence of previous convictions (or in counectioii with proper evidence of the same), the statement of service, etc., required by par. 927, A. K. of 1895, to be furnished to the convening authority with the charge. Dig. J. A. Gen., 610, par. 3. See Girc. 13, H. Q. A., 1890. Previous convictions, except of desertion on a trial for desertion, not adjudged during the current pending enlistment of the soldier, but incurred during a prior enlist- ment, are not admissible. Ibid., 610, par. 5. Evidence of a previous conviction is not admissible where the findings were dis- approved by the proper reviewing authority. As to all trials (except those had by a summary court where the post commander acts as the court, and no approval of the sentence is required by law), the term "previous conviction," as employed in G. O. 21 of 1891 means a conviction to which effect has been given by the approval of the sentence by competent authority. Ibid., 611, par. 7. See Circ. 10, H. Q. A., 1893, and note 3, paue 147, ante. Evidence of a previous conviction by a ciml court is not admissible in this procedure. Dig. J. A. Gen., 611, par. 6. ' Paragraph 929, Army Regulations of 1895. ' For effect upon amount of punishment, see Manual for Courts-martial, p. 59, sec. 1. See, also, par. 1, supra. * Manual for Courts martial, 49, par. 3. This rule is not changed by the order of the President prescribing the limits of punishment. THE INCIDENTS OF THE TRIAL. 149 having been submitted, the court, is again cleared, and closed to enable the court to vote upon an appropriate sentence. Sentences are either mandatory or discretionary. A m andat ory sentence is one determined, in kind and amount, by the express terms of a statute, and which must be imposed by - i w ii H m il m l I' ■III! mwMHi i i i i i i , . .w..w.i ) iii jr i wai| i« m ■ h i m « the court as an inevitable conse(|uence_ofcon^ the offense J;q which it is attached by faw.""K)r such ofiense, indeed, no other sentence may lawfully be~uTrpC§ec[r" A dis^gHofiary _sentence^is one in which an appropriate punishment is determined by the court, having in view the" inter ests'of discipline, the character of the off ensej_ and the evidence submitted inj)roof of its cornmissuui. Between the two classes of sentences above described lies a group of sentences in which the discretion of the court in imposing them is to some extent restricted, being exercised within certain limits established by the President in pursuance of the authority conferred by the Act of September 27, 1890.' The limitations of punishment so authorized have been fixed by the President in respect to a number of military offenses, and have been published to the Army in suitable Executive Orders," and, as so established, must be strictly observed by all military tribunals in determining upon the kind and amount of punishment imposed for the specific offenses therein enumerated. ^ Voting upon the Sentence. — irpiiaA-CQ.BJdati.on by a majorit y vote of th e court, all the members of the court, those who aitad-for .a.n_acquittal ec[ually wiffi those vv^hoj^ed Jot. cojojiction, jmust,vote^ forjome^jentg^^ This, though formerly_doubted, Jias. kmg been established as a principle in our military law. While a member who voted for an acquittal cannot of course be compelled to vote a punishment, yet his persistent refusal to do so would be a neglect of duty, rendering him amenable to a charge under Art. 62, The order of voting is the same as that pursued in reaching a finding, ini inverse order of rank. If the punishment attached to the offense be mandatory, such sentence must be imposed, upon conviction, as the sentence of the court. If the sentence be wholly or in part discretionary, the obligation to vote remains unchanged; the term " to vote " as here used, especially when construed in connection with the member's oath and the existing custom of service, implies an obligation on the part of each member to formulate and submit a sentence imposing such punishment as, in his opinion, is adequate to the offense charged. The approved practice of military courts in determining upon their sentences is believed to be as follows : Each member writes a sentence and deposits it with the president, and (no sentence having been adopted by a ' 36 Stat, at Large, 491. See, also, the Act of October 1, 1890 (26 Stat, at Large, 648). 2 See Executive Orders of February 26, 1891, and March 20, 1895, the latter of which is now in force. > Dig. J. A. Gen., 696, par. 2. f a4, 150 MILITABT LAW. majority of votes) the coart, after all the sentences have been read to it by the president, proceeds to vote upon them in the order of their severity, beginning with the least severe, until some one of those proposed is agreed upon by a majority of votes. It is not essential, however, that this form of voting should be pursued — it being open to the court, in its discretion, to adopt a difEerent one.' Where the Article of "War under which the charge is laid is mandatory as to the punishment,' and the sentence imposes, in connection with the mandatory punishment, a further penalty or penalties, this addition to the sentence does not afEect its legality so far as relates to the mandatory punish- ment; as to this it is valid and operative, though as to the rest it is a nullity.' In a case where its sentence is entirely discretionary, a court-martial may impose any punishment that is sanctioned by usage (the " custom of the service" referred to in Art. 84), although (in cases of soldiers) the same may not be included in the list of the more usual punishments contained in the Manual for Courts-martial.* Where, however, the discretion of the court is restricted in its exercise by the operation of the Executive order imposing limits upon its power to award discretionary punishments, the terms of such order must be strictly complied with. Interpretation of Terms used in Sentences. — "Jl/bre^A," " Months. ^^—^ The word " month " or " months," employed in a sentence, is to be con- strued as meaning calendar month or months; the same significance being given to the term as is now commonly given to it in the construction of American statutes in which the word is employed. The old doctrine that " month " in a sentence of court-martial meant lunar month has long since ceased to be accepted in our military law. " "Day,'''' " Days.''^ — The term " day " or "days," when used in the order of the President imposing limitations upon punishments, has reference to a day of twenty-four hours,' and this rule applies generally to the use of the term in connection with a term of imprisonment or confinement. It has been held, however, that the term " days " in a sentence of a regimental court requiring a soldier " to walk four days with a loaded knapsack," etc., did not include nights, and should not be considered as embracing any longer ' Dig. J. A. Gen., 695, par. 1. Where a sentence may or should be composed of more than one of the authorized forms of punishment, as of confinement and forfeiture of pay, for example, the court may, by appropriate motions, pass informally upon tbe several elements of which tbe sentence may be composed ; this question having been determined by a majority of votes, it only remains to fix upon the amount of pay to be forfeited and the term of confinement to be impcscd. ' Such punishments are required by Articles 6, 8, 13, 14, 15, 18, 36, 37, 38, 50, 57, 59, 61, and 65. ' Dig. J. A. aen., 696, par. 3. * Ibid.. 697, par. 6. For a list of such punishments, see Manual for Courts- mar- tial, p 50, par. 3; see, also, the chapter, post, entitled Punishments. ' Dig. J. A. Gen., 699, par. 13. « Ibid., 491, par. 4. ^S-^^ THE INCIDENTa OF 'IHE TRIAL. 151 period of the twenty-foar hours than that included between reyeille and retreat. Terms Relating to Pay and Allowances. — As will presently be seen, pay cannot be f orfeited (in a sentence) by implication. If the court intends lo lori eit pay, tbe penalty of forfeitur e phQi;ild be adiud ged_in express term s i n the senten cer^— No other punishment imposable by court-martial — neither a sentence of death, dismissal, suspension, dishonorable discharge, nor imprisonment — invol vesper se a forfeiture or deprivation of any part of the pay or allowances due the party at the time of the approval or taking effect of the sentenced ° Nor can pay be forfeited by any misconduct of a soldier, however grave (other than desertion or absence without leave), unless he is brought to trial and expressly sentenced to forfeiture for the same." All forfeitures by sentence, whether or no t so expressed to be in terms, are to be unde rstood"andtreated _as forfeitures to the TTuited States, accruin p ^ to the genergiLiueasary-. ^ /■here a sentence imposes a forfeiture of the " monthly " pay or a part of the " monthly " pay of a soldier for a designated number of months, the sum forfeited is the amount indicated multiplied by the number of months. Thus where the sentence of a soldier imposed a confinement for eight months with a forfeiture of eight dollars of his monthly pay for the same period, the sum forfeited was not eight but sixty-four dollars." A forfeiture by sentence of "pay and allowances," while it does not 1 Dig. J. A. Gen., 699, par. 12. « Ibid.. 417, par. 3. Compaie Elliott vs R. R. Co., 9 Otto, 573. • Ibid. This principle is well illustrated by the opinion of the Attorney-General (13 Opins., 103), concurring with an opinion of the Judge- Advocate General in the case of Major Herod, where it was held that the fact that the accused had been sentenced to death, on conviction of murder, did not aflect his right to his pay from the date of his arrest to that of the final action taken on the sentence by the President. And see the more recent opinion of the Attorney-General of November 9, 1876, (15 Opins., 175,) to the effect that the pay of officers and seiimen of the navy is not divested by the operation of sentences of imprisonment or suspension, but only when forfeited in specific and express terms in the sentence. ■* Ibid., 417, par. 3. Retained pay may be so forfeited. See par. 1369, A. R. 1895. ' Ibid., 418, par. 5. Soldiers' pay forfeited by sentence to the United States was, by the Act of March 3. 1851, (Sec. 4818, Rev. Sts.,) appropriated for the support of the Soulier^'- Home. This appropriation, as here expressed, is of "all stoppages or fines adjudgeil against soldiers by sentence of courts-martial, over and above any amount that may l)e due for the reimbursement of government or of individuals." The "in- dividuals" here intended were no doubt sutlers and laundresses, or other persons, (including perhaps the class for whom " reparation " is provided by Art. 54,) to whom a lien on soldiers' pay may be given by statute or regulation. Pay forfeited by sentence of court-martial can accrue to the United States only. A sentence cannot foifeit (appropriate, or " stop ")pay for the reimbursement or benetit of an individuni, civil or military, however justly the same may be due him, either for money borrowed, stolen, or embezzled by the accused, or to satisfy any other pecuniary liability of the accused whether in the nature of debt or damages ; nor cau a sentence forfeit pay for the support or benefit of the family of the accused, or for the benefit of a company fund, post fund, hospital fund, etc., none of these funds being money of the United States. Dig. J. A. Gen., 418, par. 5. « Dig. J. A. Gen., 419. par. 6. See, also, the opinion of the Judge-Advocate General published in G. O. 131, War Department, 1874, and par. 951, A. R. 1895. 152 MILITAR T LAW. affect the right of the soldier to receive during his term of enlistment the usual allowance of clothing in kind, forfeits any pecuniary allowance that may be due the soldier on account of clothing not drawn. ' While he re- mains in the service a soldier must be clothed as well as fed. The excep- tion sometimes made by courts-martial in such sentences, " except necessary clothing," being in the nature of surplusage, is thus seen to be unnecessary.' Where the sentence is confinement for a certain number of months or years, with a forfeiture of pay " for the same period," the execution of the forfeiture properly begins and ends with the term of the confinement.' A forfeiture of pay " now due " means due at the date of the promulga- tion of the approved sentence." Pay which is not due cannot be forfeited by a sentence purporting to forfeit only pay which is due.' A forfeiture of a soldier's pay, not limited by the sentence to the pay of any particular designated month or months or other space of time, but expressed, as such forfeitures usually are, simply as a forfeiture of a certain number (as three, six, etc.) of months' pay or of a certain amount of pay (as ten, twenty, or more dollars of his pay), is legally chargeable against the pay due and payable to the soldier at the next pay-day after the promulga- tion of the approval of the sentence, and if no pay is then due, or that due is not sufficient to discharge the forfeiture, against the pay due and payable at successive pay-days till the entire forfeiture is satisfied. The forfeiture, upon the promulgation and notice to the party of the approval of the same, becomes a debt due to the United States, and may legally constitute a charge against the pay then due the party, if any, and be satisfied as far as prac- ticable out of such pay when payable, viz., at the pay-day next succeeding the promulgation of the approval or of the noting of the approved forfeiture of the mnster-for-pay rolls." ' Dig. J. A. Gen., 418, par. 4.' ' Ibid., 266, par. 3. Forfeiture, however, of " all pay and allowances " includes and forfeits exrtaduty pay. Ibid., 418, par. 4. 'i6id.,419. i)ar. 7. * See par; 951 and 952, A. R. of 1895; see, also! Dig. J. A. Gen., 423, par. 19. ' Dig. J. A. Gen., 423, par. 19. ' Ibid., 419, par. 8. In the practice, however, of the Pay Department such fo)-feitures are charged only against pay accruing subsequently \,o the dale of the order promul- gating the sentence. See G. O. 53, Hdqrs. of Army, 1879; par. 9.j3, A. R. 1895. Ill a case of a forfeiture, by sentence, of " pay due" (or " pay due and to become due "), the amount of pay due and payable to the party at the date of the approval of the sentence is, in contemplation of law, returned from tlie appropriation for the army to the general treasury, and becomes public money, and, being in the ireasniy, cannot without a violation of Art. I, Sec. 9, § 6, of the Constitution, be wiihdrawii and restored to the party except by the authority of Consrress. And a forfeilure is covered into the treasury when it has passed to the credit of the Soldiers' Home fund in the Treasury Department. A forfeiture thus executed cannot therefore be remitted, or restored by the pardoning power, whatever be the merits of the case. A sentence forfeiting pay can be remitted only as to pay not due and payable at the date of the remission. Where a soldier's pay lias been forfeited by an executed sentence, no mere amendment of the muster-roll upon which the same has been noted can operate to undo such forfeiture. After pay forfeited by sentence has gone into the treasury, it cannot THE mOIDENTS OF THE TRIAL. 153 In a sentence of forfeiture of " all pay due " (or " all pay now due ") imposed with dishonorable discharge, to add "or to become due" would give no further efEect to the sentence. It is otherwise, however, where for- feiture is adjudged alone, unaccompanied by dishonorable discharge ; there the term "or to become due" would forfeit pay falling due after the date of the promulgation of the approval and while the soldier remained in service.' A forfeiture remitted upon approval does not take efEect. So where a forfeiture of pay adjudged a deserter was, upon the approval of his sentence, remitted by the reviewing authority, it was held that he was entitled to pay from the date of his arrest or surrender and return to military control — the date at which a deserter ' is " considered as again in service," or rather resumes his service.' add to Ibe authority of the Executive to returu it that the seuteuce was in fact void; the authoiity of Congress is still necessary to the reimbursement of the officer or soldier. Dig. .J. A. Gen.. 431, par. 14. Where a soldier was sentenced to be dishonorably discharged and to forfeit all his pay except twenty dollars, and, upon his discliarge, it a|)peared that he was indebted to the United Stales in a greater amount, held that the excepted sum could not legally be rendered to him. Ibid., 420, p:ir. 9. See, also. par. 953, A. R. 1895. A sentence forfeiting " pay " or "pay and bounty " does not affect the right of the accused to a pecuniary "allowance,'' as, for example, an allowance due liim for clothing not drawn. Ibid , 418, par. 3. ' Dig. J. A. Gen., 433, par. 20. Where a soldier was sentenced to a forfeiture of ten dollars per month of his pay for eighteen months, and his term of enlistment expired before the end oF that time, 7i!«W that he could not legally be retained in, the service beyond such term for the purpose of the full execution of the forfeiture. Ibid., 420, par. 10. Where a soldier was sentenced to a forfeiture of three months' pay, but his term of enlistment expired in about two months after the approval of the sentence, so that one- third of the forfeiture remained unexecuted, — held, on his subsequently re-enlisting, that this balance could not legally be stopped agiiinst his pay; the second enlistment being a new and independent contract, and the party contracting not being subject to a liability attaching to the distinct status occupied by him under a previous contract. Ibid , par. 11. In a case of a non-commissicned officer having pay due him and sentenced to reduc- tion and forfeiture of piiy, whether, the forfeiture should l)e satisfied out of his pay as non-commissioned officer or out of his piiy as private after the reduction will properly depend upon the intention of the court, if tlie same can be gathered from the terms of the sentence. But where a sergeant to whom a month's pay was overdue was sentenced "to be reduced to the ranks, forfeiting three months' pay," held that this forfeiture, upon the approval of the .sentence, created a debt to the United States which might legally be satisfied out of the pay of the soldier as a sergeant so far as the same would go, and as to the balance, out of his pay as a private IM'L, paiv 13. Where an officer was .sentenced to be dismissed with forfeiture of pay due, and sub- sequently to the approval of the sentence, but before such approval had been promul- gated to the army or the officer had been officially notified of the same, he applied for and received the pay due him, /teWthat inasmuch as the forfeiture had not taken effect at the time of the payment no illegal act was committed by the officer, aid that the paymaster who paid him was not properly to be held accountable for the amount paid. Ibid , 431, par. 13. ' Par. 131, A. R 1895. ^ Dig.. J. A. Gen., 433, par. 31. Where a soldier was sentenced "to be dishonor- i i a'lly discharged, forfeiting all pay and allowances, and to be confined for three months," yM' and the dishonorable discharge was remitted in approving the sentence, /t«W that the I' forfeiture was evidently intended to relate to pay due at the date of discharge, and that, as the discharge had been remitted, the forfeiture could apply only to pay due at the date of promulgation of the sentence 76id., par. 83. ' Where a sentence of forfeiture of teu dollars per mouth for a certain number of 154 MILITARY LAW. ■Variance in Sentence. — A material variance between the name of the accused in the specification and in the sentence is fatal to its validity and should, if possible, be corrected by a reassembling of the court for a revision of its sentence. If this be rendered impracticable by the exigencies of the service, the sentence should in general be disapproved as fatally defective.' I Sentence in Excess of Limit. — ^here a sentence_in exces s ^f the Ig gal ^/ limit is divisible, such part as is It ^ga-l-may bs pippi-^vRrl jjj;^ fjg^f-p.ntfid. Thus / where a sentence of an inferior court imposes a fine or forfeiture beyond the limit of the 83d Article of War, the sentence may be approved and executed as to so much as is within the limit.' Where the court remarks with its sentence that it is " thus^lenient " because the prisoner has already been a long time in confinement, or for other ground stated, it exceedsits function. Such a consideration is not pertinraT^oTKeTSmg^ of the measure of the punishment, which should be proportioned simply to the facts in evidence as found. Extraneous facts may serve as a basis for a recommendation only.' To be valid a sentence must of course rest upon a formal finding of guilty of an offense for which the accused has been tried. Thus a finding of guilty on one of several charges, a conviction upon which requires or authorizes the sentence adjudged, will give, validity and effect to such sen- tence although the similar findings on all the other charges are disapproved as not warranted by the testimony. But a finding of guilty of a specification to a charge, but not guilty of the charge itself, will not support a sentence, unless indeed there is added a conviction of some lesser offense included in that charged.* months was remitied thirteeu days after pioinulgatiou,7teM that the forfeiture uot affected by tlie remission was to be executed by stopping against the soldier's pay the thirtieth part of ten dollars for each and every day prior to the remission. Dig. J. A. Gen., par. 23. Where a forfeiture of ten dollars per month for three months was imposed upon a soldier (in the first year of his enlistment), Jwld that this could not be executed by for- feiting thirty dollars in one sum when so much had aggregated as pay due, but that, as his available monthly pay was nine dollars only (four dollars being retained under the Act of June 16, 1890), the execution would be best managed by remitting one dollar for each month included iu the sentence. Ibid., par. 24. ' Dig. J. A. Gen., 743. Thus lield in a case where the names in the sentence and the specification were entirely different, the one being John Moore and the other James Cun- ningham; also in cases in which, while the surnames weie the same, the Christian names were quite different, one being George and the other William, etc. ; also in a case where the name iu the sentence, though similar to that in the specification, was^not idem sonaiis, as wliere the accused was arraigned upon charges in which he was designated as Wood- worth, but was sentenced under the name of Woodman. A difference, however, in a middle initial is not a material variance, a middle name not being an essential part of the Christian name iu law.* Ibid. » Ibid.. 702, par. 19. See Circular No 2, H. Q. A., 1892. When a sentence of con- finement or forfeiture is in excess of the legal limit, the part within the limit is legal and may be executed. Par. 943, A. R. 1895. ' Ibid., 702, par. 20. See, also, the title Becommendaiions to Clemency, post. * Ibid , 696, par 5. * That the law '* recognizes but one Christian name," and that the insertion or omission of a middle initial or initials "will have, no effect in rendering any proceeding defective in point of law," see a Opins. Att.-Gen.,'3.3a; 3 id ,467; alsoPranklinra. Tallmadge,5 Johns., 84; Roosevelt to. Gardinier, 2 Cow. 463 ; State ra. Webster, 30 Ark., 168. THE maiDENTS OF THE TBIAL. 155 TJpon the conviction of an officer or soldier under a charge of a crime, such as manslaughter, robbery, larceny, etc., to the prejudice of good order and military discipline; while the statute of the United States or of the State providing for its punishment as a civil ofEense may vrell be referred to as indicating the nature and extent of the punishment deemed proper for the same by the civil authorities, the punishment, to be imposed by the court- martial should nevertheless be measured, less by the criminality of the act as & civil ofEense than by its gravity as a breach of military discipline. Ilius where a soldier, having been brought to trial_j3fifQre_a-civil cou-rt -fQr.,,the, hornlci^ of anothS~sol3reFMiriiiadeg]iatfily;.seatenced, was__subsec[uently trieJ]bv j^generalre o'nTt~inaHiarfor ihe-jaiJi^^^^^ oflensa-inviolved in his act. hel d that the coTJ xLfiaaldjTOiafirly impose upon him a penalty pro_p,Qitioned to th e injury done to the ^oqd order aiid_^isd.pline-o£-tbe-seryice, but coald no ^Thy an excessive pu nishment, at tempt t o compensate for the over-lenient judgment of the civiroourt? '" A military punishment can legally be imposed only by sentence of court- martial after a regular trial and conviction. Such a punishment cannot be imposed by a mere order. Thus a reviewi ng officer who has disappr oved the sentence impose d by a court-m ar tial, in any case, cannot thereupon order an independent pun ishment to be si; ififiyfid by the acnused. So_jucli an^officer, in disapprovingMi_acguittal, cannot order that th_e_ accused be confined or otherwise_£unished^_. So a commander, in restoring a deserter to duty without trial according to par. 132, Army .Regulations of 1895, is not authorized to require him to submit to a punishment as a condition to his heing so restored, or otherwise." ' Dig. J. A." Gen., 698, par.- 11. ' Ibid , 700, par. 14. We have in our military law no system of disciplinary punisli- ments. Except in g. few cases, unimportant in tliemselves or of rare occurrence in prac- tice (see Arts. 35,53, 53, and 54), our code recognizes no punishments other than such as may be adjudged upon trial and conviction by a military court. In the General Orders punishments inilicled merely at the will of military commanders have been repeatedly condemned as illegal and forbidden in practice. See G. O. 81 (A. G. O.,) 1833; do. 53, Hdqrs. of Army, 1843 ; do. 3, 4, War Dept., 1843 ; do. 39, Hdqrs. of Army, 1845 ; do. €45, "War Dept., 1865 ; do. 49, Northern Dcpt., 1864 ; do. 33, Dept. of the Platte, 1867 ; do. 44, id., 1871; do. 63, Dept. of D.ikota, 1868 ; do. 106, id., 1871 ; do. 40, Dept. of the East, 1868 : G. C. M. O., 113, id.. 1870; do. id., 90, 1871; G. 0. 14, Dept. of the South, 1869; do. 1, 33, 93, id., 1873; do. 9, Mil Div. of the Atlantic. 1869; do 31, id., 1873; do. 33, Dept. of the Lakes, 1870 : G. C. M. O. ."iO, Dept. of the Missouri, 1871. Officers who have resoried to such punishments have been repeatedly brought to trial and sentenced. See n were i-ufflcient to justify a mitigation of the sentence. No consideration can, therefore, be paid to it. The sentence is approved, and will be duly carried into execution." A late case in which there were two recommendations— one signed by a single member— is published and remarked upon in G. C. M. O. 92, War Department, 1876. 158 MILITARY LAW. that the act charged was a first offense, or was committed without malice or criminal intent, or was due to excusable ignorance of fact. . It is prope r to rem ark, h oweyec in^this .connection, that a court-martial \ in _Jtiis fiYt-.qpfling IpTiiftTipy to a person conxicted of a military .oJEgnse I ^ea£]j_exceed^Jts_funi3ii0n,.and trespasses upon tha field expresdy jp^eryed 1 bj;_st atute to the reviewing authority. Its action in this regard, therefore, I should, in general, be restricted to the formal recommendation to clemency ^ above^Hescri^d'.' PKOCEEDIKGS IN RETISIOX. Revision of Findings and Sentence. — So long as they continue in the legal custody of the court which imposed them, the findings and sentence are subject to revision and amendment. The procedure in such case is, first, by a proper motion to bring up the finding or sentence for reconsidera- tion, and then by a similar motion to revoke the former finding or sentence, substituting therefor the new conclusion reached by the court as a result of its deliberation. The action of the court in such proceedings must, of course, be fully set forth in the record. Revision at the Instance of the Reviewing Authority. — Kevision pro- ceedings may also originate, in a manner presently to be explained, with the reviewing authority, such power being a necessary incident of his authority to appoint or convene courbs-martial. In a proper case, therefore, the pro- ceedings may be returned to the court by the reviewing authority, so long as they remain in his custody awaiting approval or confirmation. Courts- martial should not be reconvened, however, for the purpose of making immaterial amendments in their records, nor, in general, to reduce the punishment awarded so as to bring it within the legal limit when it is in the power of the reviewing authority himself to do this; it being undesirable that courts-martial should be unnecessarily reconvened for the reconsidera- tion of their proceedings. There is no limit to the_nuniber of times that a court maybe rcMnyened foE, a^revision of its proceedings. It is seldom , however, r ^ggsrnbled a~ second time, where it declines on the first occasion to make the correction desired." ' Whei'e the court remarks witli its sentence that it is "thus lenient" because the prisoner h;is iilready been a long time in confinement, or for other ground stated, it exceeds iis function. Sucli a consideration is not pertinent to the fixing of the measure of the punishment, which should be proportioned simply to the facts in evideiice as found. Extraneous facts may serve as a basis for a recommendation only. Dig. J. A. Gen., 702, par 90. ' Dig. J, A. Qen., 677, par. 1. In the case of Brig.-Gen. Swaim, published in G C. M. O. 19, A. G. O. of 1885, the proceedings were twice returned to the court by the President ; once for a I'evision of its findings, and a second time for revision of the sen- tence, which had been modified by the court, at its own motion, during the proceedings consequent upon the first reference of the case for revision of the findings. In the British service there can be but one such reference. Manual of Military Law, 63. THE INCIDENTS OF THE TRIAL. 159 Return of Proceedings. — Where the record of a trial, as forwarded to the reviewing authority for his action, is deemed by him to exhibit some error, .omission, or other defect in the proceedings capable of being supplied or remedied by the court, the court may be reconvened by the order of the reviewing officer for the purpose of correcting the record in the faulty particular, provided a correction be practicable. In a case of an omission, the object of course is that the record may be made to conform with the fact. If the fact is that the proceeding apparently merely omitted to be recorded was actually not had, the proposed correction cannot of course be made. ' The order reassembling the court will properly indicate the particular or particulars- as to which a revision or correction is desired, or refer to papers accompanying it in which the supposed omission or other defect is set forth. Whether the proposed correction shall be made or not, is a matter which lies altogether in the discretion of the court. The reviewing authority can- not of course compel, and would Scarcely be authorized to command, the court to make it." Procedure in Revision. — A correction can be made only by a legal conrt,^ j At leaaLfive, therefore, of the me.m lifilB-Qf~the-CQHJ±- who -acted„ upon the y' tr ial must be ipresen t. That tJiere a,re fewer members at the _£eass^ibling j than at the trial is immaterial, provided five are present. The Judge- J advocate should be preseClr~^t"''ffiS"'c6ufrcI^es7liowever, he should with- draw.' . It^is not in ge neral necessary or desirable that the accused be present at \lr a revision! W here, however, any possible injustice may result from his ' absence, ne should be required or , permitted to be present, and with counsel if preferred.* It is now -seitleAjn our law that a court-martial is not empowered , at this proceeding , to ta ke or receive t e stimony. .^ Tiie amendment can only be made by the court when duly reconvened for the purpose, and when made must be the act of the court as such. A correction made by the president or other member, or by the judge- ' Dig. J. A. Gen., 677, par. 1. As, foi- example, an iiiiidequale, excessive, illegal, or irreguliir sentence, or a finiling not aiitliorized by the evidence ; or an omission of some material matter — as a failure to prefix lo the record a copy of the convening order, or to autbenlicate the proceedings by the signa'ures of the president or .iudge-advociite, or to enter the proper statement as to the members present, or to recite as to ilie offering to tlie accused of an opportunity to object to the same, or as to lliexqualifying of the court by the prescribed oaths, or lo fnlly record the plea, finding, or sentence ; or some mere clerical error in a matter of form. Ibid. ■' Ibid.,m8. par. 2. ' Ibid. , par. 3. ■* Dig. J. A. Gen., 679, par. 4. Thus where the defect lo be corrected consists in an omission properly to set forih a special plea made or objection taken by the accused, it may be desirable that he should be present in order that lie may be heard as to the proper form of the proposed correction. Where the error is clerical merely, or. thougli relating to a material particular, consists in the omission of a formal statement only, the presence of the accused is not in general called for. Ibid. ' Ibid., par. 5. 1^ 160 MILITARY LAW. i advocate, independently of the court,_and by means of an erasure or inter- '^ I Imeatio n, or otherwis e, is uuauthOTized^and a grave irregularity. The correction must be wholly made and recorded in and by the formal proceed- iags upon the revision. The r ecord of the correction , as thus., made, will refer of oourae to the page or^iart-Sf-ihe-record _of the trial in which the 1 omission or defect occurs; but ihis, part of the record must be left precisely / as it sta ndsT Thecourt is no more authorized to correct tlie~sa5ie by erasure or interlineation on the J)age, or by the substitution for the defec- tive portion_of_ a rewritten corrected statement, than would be the judge- advocate or a member.' Where the court has been dissolved or, by reason of any casualty or exigency of the service, cannot practically be reconvened, there can of course be no correction of its proceedings." The procedure. here contem- plated is of course quite distinct from the ordinary revision and correction of its proceedings by a court-martial, from day to day, during a trial and before the record is completed.' PUBLICATION AND EXECUTION. Publication of the Sentence ; Execution. — It has been seen that the pro- ceedings, as well as the findings and sentence, of a military tribunal are merely advisory in character, and until they have been approved or con- firmed by the proper reviewing authority are legally inoperative. The proceedings in a particular case, therefore, having been acted upon, the findings and sentence, having been formally approved or confirmed, are pub- lished in orders; this to the end that execution of the sentence may be had, and that the proper disciplinary effect upon the command of the offender may be secured. Although such publication of the sentence is not essential to its validity, or a necessary preliminary to its execution, its formal announcement in orders is rarely omitted. " The order promulgating the proceedings of a court and the action of the reviewing authority will be of the same date, when practicable. When this is not practicable, the order will give the date of the action of the reviewing authority as the date of the beginning of the sentence. This does not apply to sentences of forfeiture of all pay and allowances," ' such ' Dig. J. A. Geu.. par. 6. The reviewing; oflScei- himself can have no authority to make a correction in any part of the record. Thus where, upon a specitication duly settinR forth a military offeuse, a court-martial found an accused "guilty but without criminality," and the reviewing commander, in disapproving this contradictory finding, ordered that the words after "guilty" be treated as struck out of the record, held that, however objectionable the fiiidin"-. the reviewing officer could not himself assume to correct It, but, if he desired it amended, should have formally reconvened the court for the purpose. Ibid., 680, par. 8. 2 Ibid'., 680, piir. 9. 2 Ibid., par. 10. See Revision of findings and sentence, p. 158, ante. * Par. 945, Army Eegulations of 1895. THE IN0IDENT8 OP THE TBIAL. 161 « a sentence being retroactive in its operation, applying to all pay due as -well as that to become due. . "Wlieu the date for t he commencement of a term of confinement impos ed \(^ by °°nt°TV^° r>f^^^nnr(%^rmiT};i)^i| ig VLni .expressly fixed by the^sentence, the I term of confi nement begins o n the^_daJte of^the^order promulgating it. The sentence is continuous until the term expires, except when the person sen- tenced is absent without authority.' The word "month" or " months," employed in a sentence, is to be construed as meaning calendar month or months; the same significance being given to the term as is now commonly given to it in the construction of American statutes in which the word is employed. The old doctrine that " month," in a sentence of court-martial, meant lunar month has long since ceased to be accepted in our military law." "When a sentence imposes forfeiture of pay, or of a stated portion thereof, for a certain number of months, it stops for each of those months the amount stated. Thus "ten dollars of monthly pay for one year" would be a stoppage of one hundred and twenty dollars. When the sen- tence is silent as to the date of commencement of forfeiture of pay, the for- feiture will begin at the date of promulgation of the sentence in orders, and will not apply to pay which accrued previous to that date.^ Cumulative Sentences.— Where, while an officer or soldier is undergoing a certain sentence, he is again brought to trial for a military offense, and a further sentence is adjudged him, imposing a punishment of the same species as that which is being executed, it is the general ru] e of the service \ y that the second se ntence i s to h& _ss2axd/^-eis,~eiumyulaUve .u.p.on_the firstj^and ■, *' that its^jex ecution is to, c ommence-wiien thcexecation of the first is com- ' pleted. This whether or not the court, in the second sentence, may have in terms specified that the second punishment should be additional to the ' Par. 944, Army Regiilations of 1895. ^ Dig. J. A Gen., 699, par. 13. Held that tbe terra " days," in a sentence of a regi- mental court requiring a soldier "to walli four days with a loaded kniapsacli," etc., did not include nights, and should not be considered as embracing any longer period of the twenty-four hours than that included between reveille and retreat. Ibid. ' Par. 951, Army Regulations of 1895. A sentence to confinement, with or without forfeiture of pay, cannot become operative prior to the date of confirmation. If it be propi'r to take into consideration the length of eouflnement to which the prisoner has been subjected previous to such confirmation, it may be done by mitigation of sentence. Par. 947, ibid. The rule prescribed in pars. 944 and 947, A. R.,* to the effect that confinement and forfeiture, when the sentence is silent as to the time of their taking effect, shall, be opera- tive from the date of the promulgation of the sentence in orders, is an .exception to the general rule that orders affecting the status or rights of officers or soldiers shall take effect from notice. But where a sentence of dismissal of a cadet of the Military Academy was commuted to suspension from the Academy, without pay, from Oct. 31, 1893, (the date of the order,) to Aug. 28, 1894, held that the general rule, in the absence of any specific exception of such a case by the Army Regulations, applied, and that the sentence as commuted took effect upon and from notice, the forfeiture commencing to run from its date. Dig. J. A. Gen., 703, par. 21. • Edition of 1895. ^7 162 MILITARY LAW. first; snct second punishment being made cumulative by operation of law irrespectiYe of any direction in the sentence/ Adding to Punishment. — It is a principle of military law that no mili- tary authority, whether the reviewing ofla.cer or other commander, can adi to a punishment as imposed by a court-martial. For this reason neither for- feiture of pay, nor fine, nor a corporal punishment can be iuflicted upon an officer or soldier where the sentence fails to adjudge it. And neither the fact that the punishment awarded by the court is regarded as an inadequate one nor the fact that the period is a time of war can afEect the application of the principle. Thus where the punishment imposed by the sentence was to carry a weight of twenty pounds, it has been held that it would be illegal for the officer charged with the execution of the sentence to increase the weight to thirty pounds." A legal sentence of court-martial,_ when once duly approved an d.flgecuted. cannot be reached by a pardon, nor^ revoked, recalled, modified, or replaced by^rmrrderjumshment or other proceeding, either by the Executive or by Congress.' The only remedy for a party who has sufEerBd. injustice from such a sentence is either a new appointment to the Army by the President or some legislation within the proyiuce of Congress relieving or indemnify- ing him for and on account thereof.* ' Dig. J. A. Gen., 698, par. 10. Wlien soldiers awaiting result of trial or undergoing sentence corarait offenses for whicli they are tried, the second sentence will be executed upon the expiration of the lirst. Par. 948, A. R. 1895. ' Dig. J. A. Gen., 699, par. 13. So where tbe sentence imposed simply a forfeiture of pay, held, that it was adding to the punishment to order it to be executed at a military prison. So held that a sentence of simple " confinement" for a certain lime did not authorize the imposition, in connection with its execution, of bard labor. So held illegal to execute a sentence of " confinement in a military prison " by committing the party to a State penitentiary. (And see more particularly, as to adding to the punishment in cases of sentences of confinement, the title " Imprisonment," Dig. J. A. Gen., 441, §§7, 8, 9.) Where an officer, on conviction of the embezzlement of a certain sum, was sentenced, without further penalty, to be dismissed the service, lield that tlie department commander, in approving the sentence, could not legally order him to be confined at his station till he should make good the amount embezzled, since this would be an adding to the punishment imposed by the court, as well as an illegal exercise of power over a civilian. IMd., 699, par. 13. See, also, Barweis ss. Keppel, 3 Wilson, 314. A sentence adjudging a dishonorable discharge, to take effect at such period during a term of confinement as may be designated by the reviewiag authority, is illegal. Par. 949, A. R. 1895 The time at which a dishonorable discharge is to take effect, as fixed by a sentence, cannot be postponed by thr' reviewing oflicer. Par. 950, ■Oiid. When the court has sentenced a prisoner to confinement at a post, no power is competent to inciease the punishment by designating a penitentiary as the place of confinement. Par. 942, ibid. A mitigated sentence can no more be added to, in execution, than can an original sentence approved without mitigation: Dig. J. A. Gen., 702, par. 16. ' The well-established principles that mere irregularities in the proceedings will not affect the validity of an exee.uied sentence, and that a legfil sentence once duly confirmed and executed is "no longer subject to review by the President," so pointedly set forth (in 1848) in 4 Opins. Att.-Gen., 274, are further illustrated in 15 id., 390,' 433. 4 Dig. J. A. Gen., 701, par. 15. CHAPTER IX. PUNISHMENTS. Prohibited Punishments. — Certain forms of punishment are forbid dea by statute to be imposed by military. tribunals. In some instances this pro- hibition_js absolute, as in case of .flogging, o r of branding, marking, oT ta ttooing; the bo dy: others are prohibited in time of peace only, and maybe imposed in time of ■war~OT~in '^reSffrrcB" of theThTfriy.' "TiTiTi'Sry'^iy is honorable, and to impose it m any torm as a punishment must tend to degrade it, to the prejudice of the best interests of the service.'' The Limits of Punishment Order. — The operation of the Executiye Order imposing limits upon the power of courts-martial to impose discre- ' Article VIII of the Amendmeuts to the Conslitiition prohibits the infliction of "cruel and unusual piinishmeuls." While this provision does not necessarily govern courts-miirtial, inasmuch as they are not a part of the judiciary of the United States,* it should be obstrved as a general rule. TLi us where, for an offense not peculiarly aggravated, u court-martial imposed upon a soldier, in connection with a forfeiture of pay for six months, the further penalty of carrying a loaded knapsack, weighing twenty-four pounds, every alternate hour from sunrise to sunset of each day (Sundays excepted) during that period, held that this punishment wiis excessive and exceptional, and, the B^me having been suffered by the soldier for three months, recommended that its unexpired term be at once remitted. Dig. J. A. Gen., 697, par. 7. Punishments are cfud when they are vindiciive in character, going both in kind and degree beyond the intention and necessity of their infliction for the vindication of law; they are unusual when unknown to the statutes of the land or unsanctioned by the cus- toms of the courts ; a punishment is also unusual when, .thougli apparently warranted by law, it is so manifestly out of all pioportion to the offense as to shock the moral sense by its barbarity, or because it is a punishment long disused for its cruelty until it has become unusual. -f The punishment of ball and chain, tliongh sanctioned by the usage of the service, should, in ihe opinion of the Judge- Advocate General, be imposed only in extreme cases. Its remission has in general been recommended by him except in cases of old offenders or aggravated crime, where deemed serviceable as a means of obviating violence or preventing escape. This penalty has (as have also those of shaving the head and drum- ming out of the service) become rare in our army, since the furtlier corporal punish- ment of branding, marking, etc., has been expressly proliibited by statute Ibid., par. 8. See Act of June 6, 1S73, (17 Stat, at Large, 261,) no.v incorporated in the 98tli Article of War. ' Thus advised that a sentence " to do extra duty " for a certain term would properly *That the provisions of the Vth. Vlth, and Vlllfh Amendments to the Constitution, relating to criminal proceedings, apply only to the courts, etc., of the United States, see Barron vs. Mayor of, Baltimore, 7 Pfters, 243: Bx parte Watkins, id., 673; Twitcheli vs. The Commonwealth, 7 Wallace, 326; Edwards us. Elliott, 21 id., 657; Walker vs. Sauvinet, 2 Otto, 90; Pearson vs. Yewdall, 5 id., 294; 1 Bish. Cr. L , § 726. • . + DeHart 68; Cooley, Constitutional Law, 296. 163 164 MILITAB T LA W. tionary pamshments upon enlisted men is calcalated to regulate and, to a certain extent, to restrict such exercise of discretion in respect to the Articles of War to which it relates. The terms of the order ni.ast be strictly followed as to all sentences to which it applies, and punishments in excess of those therein prescribed are unauthorized and are not susceptible of being validated by an exercise of power on the part of the reviewing authority.' Where, however, a sentence in excess of the legal limit is divisible, such part as is legitimate may be approved and executed. Thus where a sentence of an inferior court imposes a fine or forfeiture beyond the limit of the 83d Article of War, the sentence may be approved and executed as to so much as is within the limit.' Increase of Punishment.— It is a well-established principle of penology that the punishment imposed for a second or any subsequent conviction of a particular offense should in general be more severe than that imposed upon a first or prior conviction of the same or a similar offense. This principle has been applied to the procedure of courts-martial in the rules, established by the President,' regulating the limits of punishment to be imposed by courts-martial in cases in which such punishment is discretion- ary with the court. This with a view to obtaiu the deterrent effect of increased punishment upon military offenders as a class, and to secure a similar result in respect to individual offenders who have been convicted of repeated violations of particular disciplinary provisions. For the reasons above stated, therefore, the court, having reached a finding of guilty in a particular case, is reopened and the prosecution is permitted to introduce evidence of previous convictions of the same or similar offenses, the purpose being to see whether " tjie prisoner is an old offen der, and therefore l ess ^/ entitled to leniency than„if. on_trial for his first offense." ° 1)6 disapproved. So ndmsed of sentences imposing " guard duty " for certain periods So advised ot a sentence Imposinir, in connection with a term of confinement in charge of tlie suard. the penalty of " sounding all the bngle-ralls at the post during the same period." So advised in regard to a sentence whicli required a deserter, not for the purpose of making good the time lost by his desertion, l)ut as a punishment, to serve foi an additional year after the expiration of his trrm of enlistment. Ibid., 698, par. 9. > Acta of September 27, 1890, (26 Stat, at large, 491,) and October 1, 1891, (36 ibid., 648^ Under the authority conferred by these statutes four orders prescribing limits of punishment have been issued by the President. The one now in force bears date of June 13, 1905, and was published to the Army in General Orders No. 42 of the War Dept. of 1905. ' Dig. J. A. G., 702, par. 19. A sentence cannot legally extend the time of the ser- vice of a soldier beyond the term for which he originally contracted. Ibid., par. 17. The existing law fixing the term of a soldier's enlistment at three years, a court-mar- tial can have no power to prolong it by adding to such term an additional period by wajr ot punishment. Ibid., par. 17. 3 See note 1, supra. PUNISMMENT8. 165 PUNISHMENTS. \y Sources. — The punishments which courts-martial may inflict upon the conviction of persons accused of military offenses are regulated by statute, as in the Articles of "War, or by Executive Order or regulation, in persu- ance of a statute, and, to a limited extent, by the custom of service. The following are those most frequently imposed upon commissioned officers. Death. — To the validity of a death-sen tence it is essential that two third s of the members s hould^ co nc ur, 'a nd then only wlienthe authority to ini^ pose capita l" 'pupisbment has been expre ssTy'^co Dferred'Ty'raw 'Several of the Articles authorize " any punishment except death " to be imposed as a consequence of their violation; such sentences, however, must conform in character to the punishments authorized by statute or by the custom of service to be inflicted in such cases." Execution of the Death-sentence. — For military offenses the form of death-sentence imposed . is that by " shooting to death by musketry "; for murder and other common-law offenses which are punishable capitally the ' 96th Article of War. Though it has sometimes been viewed otherwise, it is deemed i quite clear upon the terms of the present Article that it is not necessary to the legality u/'" of a death-sentence that two thirds of the court should have concurred in the finding as ' well as the sentence.* Further, in the absence of any requirement to that effect In the Article, it is not deemed essential to the validity of the sentence that the record shoiild state the fact that two thirds of the court concurred therein. The practice, however, has been to add such a statement. Dig. Opiu. J. A. Gen., 112, par. 1. A senience of death imposed by a court-martial, upon a conviction of several distinct offenses, will be authorized and legal if any one of such offenses is made capitally punishable by the Articles of War, although the other offenses may not be so punishable. Ibid., par. 2. A court-martial, in imposing a death-sentence, should not designate a time or place for its execution, such a designation not being within its province, biit pertaining to that of the reviewing authoritv. If it does so designate, this part of the sentence may be disregarded, and a different time or place fixed by the commanding general. Ibid., par. 3. Where a death-sentence imposed by a court-martial has been directed by the proper authority to be executed on a particular day, and this day, owing to some exigency of the service, has gone by without the sentence being executed, it is competent for tl]e same authority, or his proper superior, to name anotber day for the purpose, the time of its execution being an immaterial element of this punishmeut.f Ibid., par. 4 '' Death-sentences may be imposed, as a discretionary penalty, upon conviction of the oifeuses named in the 21st, 22d. 33d, 41st, 42d. 44th, 45th, 47th, 49th, 51st, and 58th Articles; such a sentence is mandatory upon conviction of tlie offenses set forth in the 57th Article and in Section 1343, Revised Statutes. * Compare McNagrhten, 130. + It was held b.v the Supreme Court in Coleman vs. Tennessee (7 Otto, 519, 590) that a soldier who had been convicted of mui-der and sentenced to death by a eeneral court-martial in Ma.y, 1865, but the execution of whose sentence had been meanwhile deferred dv reasorf of .his escape and the pendency of civil pi-oceedinfcs in his case, miffht at the date of the ruling: (October term, 1878) '" be delivered up to the military authorities of the United States, to be dealt with as required by law." More recently (May, 1879, 160pins., 349) it has been held in this case by the' Attorney-General that the death-sentence might legally be executed notwithstandinpr the fact that the soldier had meanwhile been discharged from the service, such discharge, while formally separating the party from the Army, being viewed as not affecting his legal status as a military convict. But, in view of all the circum- stances of the case, it was recommended that the sentence be commuted to imprisoument for life or a term of years. 166 MILITARY LAW. sentence usually imposed is that by hanging; the same form is awarded in cases involving ignominy, as for the offense of being a spy, or of desertion to the enemy in time of war. Death-sentences usually contain the require- ment that the sentence shall be carried into execution in the presence of so much of the command of the accused (or of the reviewing officer) as can be " conveniently assembled for that purpose." Dismissal. — This punishment is authorized to be imposed for the viola- tion of a number of the Articles of War, and in a majority of cases is mandatory; in others it may be imposed at the discretion of the court, either separately or in combination with other forms of punishment, such as forfeiture of pay, or fine and imprisonment. Its effect is to completely separate the ofl&cer so sentenced from the military service, and to restore him to the status of a citizen. He can re-enter the service only in pursuance of an appointment by the President with the consent of the Senate.' _^A sentence of dismissal becomes operative upon its official delivery_jto_the officer aflected~ thereby, or upon the receipt, on his part, of a formal notifi- _\\ cafiorTbf Its' approval or confirmation." For convenience the present prac- ' tice is to designate^ in the order promulgating the case, a date upon which the dis missal will.ta ke effect. Publication. — "When an officer has been " dismissed from the service for . cowardice or fraud," the law requires ihgt^^he sentence shall further (direct thatTEe crime, punishment, name, and place of abode of the delin- ^ /queiit shall be published in the newspapers in and about the canip7and in / t he State'frorn w hich the offender came or where he usually resides; and after such publication it shall be scandalous for an officer to associate with him."^'" " --.. Statutory Consequences of Dismissal. — In several of the Articles a sen- tence of dismissal serves to bring into operation certain statutory conse- quences that follow upon and form part of the punishment imposed by the sentence of the court-martial. Such consequences are expressly stated in the particular Article which authorizes them, and need not, and usually do not, form part of the sentence imposed by the court.* ' Mimmack «s. U. S., 97 U. S.. 426; McEliatli us. U. S., 102 ibid., 436; Blalte vs. U. S.. 103 ibid., 227; Keyes vs. U. S., 109 ibid , 336. ' Dig. J. A. Gen., 36S, par. 3. Dismissal is mandatoiy upon cnnviction of any of the offensiis named in the 5th, 6tb, 13th, 14th, 15th, l8th, 19tli, 26th. 27th, 38th, .54th, 59lh, and 61st Aitlclus; it is discretionary with the court as to the ofEeuse named in Article 3. ' ICOth Article of War, Cashiering and di'-missal were once quite di.sliiict punish- ments in military law; the former involving, in addilion to a dishonorable separation from the service, a disability to hold public office; and this diffei'PDce was illustrated by the fact that cashiering was somelimes mitigated to dismissal. All distinction, however, between the two forms has long since ceased to exist in our law; cashiering with us meiining nothing more or other than dismissal. A sentence "to be cashiered " — now a rare form — is equivalent to a sentence to be dismissed the service. Dig. J. A. Gen., 214. In the code of 1874 the term "cashiered" has been retained, apparently by inad- vertence, in two Articles, the 8lh and 50ih Di?. J. A. Gen., 214. * See the 6th, 14th, and 100th Articles of War. PUNISHMENTS. 167 Disqualification for Office. — Di squalification, or incapacity to hold office nnderj he United States, although a pun ishment sanctioned by precedent in the military s ervice, is na lon ger regardea~as an appropriate penalty in the 1 k^ cases ot commissioaed officers, save in the cases, presently to be described, ' i n which it iTspeciT^ l lY authorized b y statute. This for the reason that it comes into conflict with the constit utional power of the President to make appointments tooffice ; a power from its nature not susceptible of limitation, ei ther^y "statute ' of"T)y the sentence of a lawfully constituted court-martial. It is specifically authorized in two Articles of War, the 6th and 14th, but is here apparently intended, not as an independeat punishment, but as a penal consequence incident upon conviction and sentence of dismissal. As a distinctive punishment, however, there are numerous instances in which it has been imposed,' having been regarded apparently as a particularly suitable penalty in cases of embezzlement of public funds or other fraud upon the government. In some instances the disqualification, as adjudged, has extended to the holding of public office in general ; in others it has been confined to the holding of military office. Disqualification, being a continuing^j^a.msh.meRt, may of course be removed by a remissi on~orTEe same by the pardoning power at any time durin g iije life of the par ty. But while the disqualification for military office is less objectionable than the more general form, it may well be doubted whether this species of punishment, inasmuch as it assumes in efEecb to inhibit the exercise by the Executive of the appointing power, is within the authority of a court-martial." Imprisonment. — This punishment, which is awarded only for the more serious offenses, may be imposed separately or in connection with or addi- ' Instances of sentences, including (generally with dismissal) tlie punishment of dis- qualification, are to "be found iu the following Orders of the War Department (or Hdqrs. of Array) published before tlie late war, the instances being none of them cases of conviction of false muster : Gr. O. of April 2, 1818; do. of Sept. 85, 1819; do. 71 of 1829; do. 15 of 1860. The uufrequeiicy of this punishment in the early Orders may perhaps be owing in part to the fact that it was considered that "cashiering" — a sentence often then adjudged — involved disqualification. See note 3, page 166. Similar instances of the same punishment occur in the following Orders issued from the War Department during and since the late war. For instances of such sentences see Dig. J. A. Gen., 375, par. 1, note 1. '^ Dig. J. A. Gen., 875, par. 1. This punishment, however, has, since 1870, been dis- continued in the practice of our courts-martial, and this discontinuance is to be traced to the ruling of the Attorney-General in an opinion addressed to the Secretary of the Navy iu 1868 (12 Opins., 528) to the effect that a sentence of a naval court-martial by which a contractor fur naval supplies was excluded from future dealings for such supplies with the government was illegal; sentences of disability in general being further liclrl to be " not In acoordance with the custom of the service except where expressly authorized by law." This ruling was applied to a railiiary case iu G. C. M. O. 22 (as also in do. 57), War. Dept., etc., of 1870, and the punishment of disqualification imposed upon an officer disapproved as unauthorized. But whatever may have been the usage of naval courts-martial, the very numerous precedents of cases in which such punishment had been adjudged by military courts for a great variety of offenses were, it is considered, quite sufficient to have established tliat this penalty was sanctioned by custom in the Army. That it is, however, subject intrinsically to serious legal objection is indicated in,the text. Ibid, note 1. 168 MILITARY LAW. tion to a sentence of dismissal; ib may al^o be imposed with or witho at hard labor, at the di scretion .fl£J;li&.jCfl.art. The term of imprisonment should be expressly stated in the sentence,' although a sentence of imprison- ment until a certain fine, specified in the seutence, has been paid is still authorized by custom of service. ' For a reason presently to be stated, the place of confinenjient, as a prison, penitentiary, etc., and its character, must be described in the sentence, leaving the particular prison or penitentiary in which the sentence is to be executed to be designated by the reviewing authority in the order promulgating the proceedings of the court.' The place so designated for the execution of the sentence may be changed, at any time, at the discretion of the reviewing authority, or his proper superior, or successor in office.'' In accordance with the present practice, ' A sentence which, in imposing confinement (or imprisonment — the two terms being practically synonymous in sentences of courts-martial), fails clearly to indicate how long the same is to continue is irregular and inoperative. Such a sentence should be dis- approved by the reviewing authority unless it can be procured to be corrected by a reassembling of the court for the purpose. Dig. J. A. Gen., 439, par. 1. * Sentences of imprisonment till a fine, also imposed by the sentence, is paid are sanctioned by the usage of the service. It is proper, however, in such sentences to aflix a limit beyond which the punishment shall not be continued in any event. Where a sentence adjudges a fine, without also adding (with a view to euforcing its payment) a term of confinement, such a confinement cannot of course legally be imposed by the military commander. So, held that par. II of G. O. 61, War Depaitment, 1865, — to the effect that where a court-martial, in imposing a fine, has failed to require that the prisoner shall be confined till the fine is paid, he will not be released without orders from the War Department except on payment of the fine, — transcended the authority of an executive order ; such a requirement being a punishment, which can be prescribed only . by sentence of court-martial. Ibid., 440, par. 4. ' Wliere an officer or soldier is sentenced to be confined in a penitentiary, the proper reviewing authority may legally designate for the execution of the punishment any State or Territorial penitentiary within his command. Where there is no such peni- tentiary available for the purpose or desirable to be resorted to, he will properly submit the case to the Secretary of War for the designation of a proper penitentiary. Ibid., 114, par. 7. * It is not adding to the punishment, and is authorized at military law,- for the com- mander who ordered the original commitment, or his proper superior, to change the place of confinement of a prisoner if such a change is required by the exigencies of the service, provided that no more severe species of confinement than that contemplated in the sentence is enforced after the transfer. Ibid., 442, par. 9. See, also, paragraphs 943 and 946, A. R, 1893. While the authority upon whom it devolves to execute a sentence of confinement is not authorized to add to the punishment adjudged, he is, on the other hand, not justi- fied in executing the same in so indulgent a manner as to divest the punishment of its intended and legitimate force and effect. Thus where certain prisoners, sentenced to terms of confinement ou conviction of grave offenses, were, while in ordinary good health, permitted to be employed upon honorable duties as clerks, etc., in the offices attached to (and one of which was outside of) the prison, held that such employment was in derogation of the proper requirements of a sentence of imprisonment and should be ordered to be discontinued. Ibid., par. 10. It is not adding to the punishment in executing a sentence of confinement to require the prisoner to perform work prescribed for prisoners of his class by the statute law. Tims persons sentenced to imprisonment at the Military Prison at Leavenworth may leo^ally be employed in the labor or at the trades indicated by Sec. 1351, Rev. Sts. Ibid., par. 8. Where an officer or soldier is sentenced merely to a term of confinement without the addition of "hard labor," while he may properly be required to perform the ordinary domestic or police work directed by the sanitary regulations of the prison, he cannot PUNI8EMENT8. 169 a sentence of imprisonment becomes operative upon a date fixed therefor by the reviewing aathority in the order of promulgation.' Imprisonment in a State Prison or Penitentiary. — With a view to dis- criminate between, military ofEenses, properly so called, and those which are regarded as felonies by statute or by the common law, the 97th Article of War contains the requirement that ' ' no person in the milit ary service shall, under the sentence of a court-martial, be punished by confinement in a penitentiary, unless ^e oSense"^ wEich he may be convicted would, by s ome statute oi the United^States, or by some statute of the State, Terri- tory, or District in which such offense may be committed^ or by the common law_as-iha„same exists in such State, Territory, or District, subject such convifiLta-Such punishment. " ' properly be put to unusual labor of a severe and continuous character. Thus Jield that to require a soldier sentenced simply to be confined at Aleatraz Prison, to work daily at blasting and quarrying rock was adding to the punishment and was therefore unauthor- ized. To a proper execution, however, of a sentence of confinement a secure keeping of the person is of course essential. Where, therefore, it is not possible otherwise to prevent a prisoner's escape or to prevent violence on his part, he may be ironed without adding to the punishment. But such exceptional restraint cannot legally be imposed except where thus necessary. Big. J. A. Gen., 441, par. 7. ' The old rule, that the term of a confinement (of so many months, years, etc.) im- posed by sentence of court-rhartial commenced on the day on which the prisoner was delivered to ttie proper oflacer — as the officer in cliarge of the prison or commanding the post— to be confined according to the sentence, having been found inconvenient in prac- lice, there was substituted for it, by G. O. 31, Hdqrs. of the Army, of 1870, the rule tliat " the confinement shall be considered as commencing at the date of the promulga- tion of the sentence in orders." This rule being more favorable to prisoners than the old one, its authority is not known to have ever been questioned. Ibid., 441, par. 5. The equally liberal and more exact rule stated in the text is now generally followed. ' This Article, by necessary implication, prohibits the imposition of confinement in a penitentiary as a punishment for offenses of a purely or exclusively military character — as desertion, for example.* Dig. J. A. Gen., 113, par. 1. The term "penitentiary," as employed in this Article, has reference to civil prisons only — as the penitentiary^ of the United States or District of Columbia at Washington, the public prisons or penitentiaries of the different States, and the penitentiaries " erected by the United States" (see Sec. 1892, Rev. Sts.) in most of the Territories. The military prison at Leavenworth is not a penitentiary in the sense of the Article. The term State or State's prison in a sentence is equivalent to penitentiary. Ibid., 114, par. 5. A military prisoner duly sentenced or committed to a penitentiary becomes subject to the government and rules of the institution. Jbid., par 6. A sentence of penitentiary confinement in a case of a purely military offense is wholly unauthorized and should be disapproved. Effect cannot be given to such a sentence by commuting it to confinement in a military prison, or to some other punishment which would be legal for such offense. Nor, in a case of such an offense, can a severer pen- alty, as death, be commuted to confinement in a penitentiary. Ibid., 113, par 2. Nor can penitentiary confinement be legalized as a punishment for purely military offenses by designating a penitentiary as a "military prison," and ordering the confine- ment there of soldiers sentenced to imprisonment on conviction of such offenses. Ibid., par. 3. A punishment of confinement in a penitentiary, where legal, may be mitigated to confinement in a military prison or at a military post. Ibid., 116, par. 15^ Where a court^martiaLspecifically sentences, an, accused to confinement in a ".mili- tary prison," he cannot legal ly be committed to a penitentiary, although" such'form of * See a. O. 4, War Dept., 1867 ; also the action taken in cases in the following General Orders : Q. O. 21, Dept. of the Platte, 1866 ; do. 21 id., 1871 ; do. 44, Eighth Army Corps, 1863 ; G. C. M. O. 34, 35, 48, 46, 72, 73, Dept. of the Missouri, 1870. .- r . ... 1^ 170 MILITARY LAW. The terms of this Article constitute a restriction upon the power of courts-martial to impose sentences of imprisonment in respect to the char- acter of the restraint, or the place in which the sentence is to be executed, and " it is nowhere provided \i!na.t tha p nniahnigntjg^^^ ot in oth er respects be greater tha n the civil courts could inflict ." ' Confinement to Limits. — A form of confinement -ranfih-Iess severe than 'imprisonment, called confinement to limits, is recognized by c ustom of ser- • Qce'ar an appropriate punishment for commissioned ofl&fters. It consists in a restriction of the ofEender to certain limits expressly described in the sen- tence. Such confinement may consist in restriction to the limits of a mili- tary post or reservation or, as expressed in a recent sentence, to the area or territory within a certain distance from a city specially mentioned in the imprisonmeut would be authorized by the character of his offense. But where a sentence of confinement is expressed in general terms, as where it directs that the accused shall be confined " in such place or prison as the proper authority may order," or in terms to such effect, lield that the same may, under this Article, legally be executed by the com- mitment of the party to a penitentiary, to be designated by the reviewing officer or Secretary of War, provided of course the ofieuse is of such a nature as to warrant this form of punishment. Dig. J. A. Gen., 114, par. 9. All offense charged as "Conduct to the prejudice of good order and military discipline," which, however, is in fact a larceny,* embezzlement, violent crime, or other offense made punishable with penitentiary confinement by the law of the State, etc., may legally be visited with this punishment. Ibid., 114, par. 4. Where the act is charged as a crime under Art. 62, and charge and specification taken together show an offense punishable with confinement in a penitentiary by the law of the locus of the crime, the sentence may legally adjudge such a punishment. So held in a case where charge and specification together lliiade out an allegation of perjury under Sec. 5392, Rev. Sts. Ibid., 115, par. 11. • Held that penitentiary confinement could not legally be adjudged upon a conviction of a violation of the 31st Article, alleged in the specification to have consisted in the lifting up of a weapon (a pistol) against a commanding officer and discharging it at him with intent to kill. By charging the offense undei' this Article, the Government elected to treat it as a purely military offense subject only to a military punishment. So, upon a conviction of joining in a mutiny, in violation of Art, 32, held that a sentence of con- finement in a penitentiary would not be legal although the mutiny involved a homicide, set forth in the specification as an incidental aggravating circumstance. To have warranted such a punishment in either of these cases the Government should have treated the act as a "crime," and charged and brought it to trial as such, under Art. 63. Ibid., par. 10. "Obtaining money under false pretenses" is punishable by confinement in a peni- tentiary by the laws of Arizona. A sentence of court-martial, imposing this punishment, on conviction of an offense of this description committed in this Territory, charged as a crime under Art. 62, held authorized by Art. 97. Ibid., par. 12. A conviction of a larceny of property of such slight value as not to authorize this punishment under the local law would not warrant a sentence of confinement in a pen- itentiary. In a case of larceny the court should inform itself as to whether the value of the property stolen be not too small to permit of penitentiary confinement for the offense under the law nf the State, etc. Ibid., par. 13. ' Ex parte Mason, 105 U. S., 696; Manual for Courts-martial, p. 53, paragraphs 14 and 15. A court-martial, in imposing by its sentence the punishment of confinement in a penitentiary, is not required to follow the statute of ^e United Stiites or of the State, etc, as to the term of the confinement. It may adjudge, at its discretion, a less or a greater term than that affixed by such statute to the particular offense. At the same time the court will often do well to consult the statute, as indicating a reasonable meas- ure of punishment for the offense. Dig. J. A. Gen. 114, par. 8. * In a case of larceny the court should inform itself as to whether the value of the property stolen be not too small to permit of peniteotiary confinement for the offense under the local law. See G. O. 44, Eighth Army Corps, 1668 ; G. C. M. O. 63, Dept. of the Platte, 1873. PUNISHMENTS. iVl order of promulgation. Snch confiu ement does not partake of the nature //^ of a "vilit^ T;y..MiCei^^ r "'" ^ ?■ faU^J^e to obser rclFe ^ST^'^peaSed in the sen- / tence would be chargeable under thT'^M^^ 'tiicle'^ War. ' Nor, on the o tiler band, does such restriction involve any of the statutory consequences incident to imprisoninent, or confer incapacity to testify, as would confine- ment in a state prison or penitentiary.'' Suspension. — Three of the elements which go to make up the legal status of a commissioned officer, rank, command, and pay may be reached by a sentence of suspension, and one or more than one of these elements may be afEected by the same sentence. " The punishment of suspension, as imposed by sentence, is usually in the form of a suspension from rank or from command for a stated term, sometimes accompanied by a suspension from pay for the same period. Suspension from rank includes suspension /^ from comm and." ° Suspension from Rank or Command. — The effect of a suspension from rank is to detach the officer from the performance of the duties incident to his rank or office in the military service, and_to^depriveJMmjgf_the right to promotion to a vacanc y in a higher grade occurring pending the term of suspension and which he would . hj,Ye_been enjitled to rece ive by virtue of seniority liad he not been suspended^ such_right accruing to the officer next in rank.* . But no such loss of promotion is incident to a mere suspeinsion / L^ y m ranK.' , aviZ no sucn loss oi promotion is inciaent to a mere suspeinsion i fro m comniaa d.'' S uspension from rank does not, however, dep r ive the / r' officer ofjhe pi ght-tQ -xiaeJjwfiJies.-ija . his grade. — u pon the prom otion, for"/ example, o f the s enior officer of sucli grade.' A suspension from rank does not affect the right of the officer to his office; which he retains the same as before, and, as an officer, remains sub- ject to military control as well as to the jurisdiction Of a court-martial for any military offense committed pending the term of suspension.' . Su spension from rank or command do es not involve a loss of pay or | ^ authorize a stoppage thereof during the period of suspen sion." Pay cann ot | " ' It has been seen that suspension from rank, as such, does not involve a status of confinement or an-est. In sentencing an officer to be suspended from lank, it is not unusual, however, for the court to require that he be confined during the term of suspension lohis proper station, or that of his regiment, etc., i.e., that the sentence be executed tljere. Dig. J. A. Gen., T30, par. 6. ^ See the cha|iter entitled Evidence. 8 Dig J. A. Gen., 729, pjir. 1. * lUd., 780, par. 3 ; see, also, ibid , 617, par. 4. ' Ibid., 730. par. 3. ' Ibid., 617, par. 4. The number of an officer in the list of his grade is not an inci- dent of his rank, but of his appointment to ofiHce as conferred and dated, and, as we have seen, suspension does not affect the office. Moreover, loss of files is a continuing pxinis?i,meni, and if held to be involved in suspension from rank, the result would be that, for an indefinite period after the term of suspension had expired, the officer would remain under punishment, the sentence imposed by the court being thus adde^ ti> io execution, contrary to a well-known principle of military law. Ibid. ' Ibid., 729, par. 2 ; 5 Opin. Att.-Gen., 740 ; 6 lUd., 715. 8 IHd., 781, par. 7 ; 4 Opin. Att.-Gen., 444 ; 6 idem, 203. 172 MILITARY LAW. be forfeited by implication . Unless, therefore, the sentence imposes a sns- pension from rank (or command) " and pay," or in terms to that effect, the suspended oflBcer remains as much entitled to his pay as if he had not been suspended at all, and to require him to forfeit any pay would be adding to the punishment and therefore illegal.' It is furttierJhejfEect, of a suspension frnm ra,r[k that, the offiner4osRs for /the time the minor rights and privileges of priority and prec edence an nexed """^l t o rank or_ conimandI " Amongthese js_ thiR jiprht to select quarters relative ly to other offl cers. And where quarters are to be selected by several officers, one of whom is under sentence of suspension from rank, the suspended officer necessarily has the last choice; or, rather he has no choice, but quarters are assigned him by the commander ; for, being still an officer of the army, though without rank, he is entitled to some quarters.' Suspension from rank does not involve a status of confinement or arrest. In sentencing an officer to be suspended from rank, it is indeed not unusual for the court to require that he be confined during the term of suspension to his proper station or that of his regiment, etc., i.e., that the sentence be executed there.' While^Jhe suspended officer Js.iiot entitled to a leave, of absence, it ' Dig. J. A. Gen., 731, par. 7 A sentence of suspension from rank and pay does not affect the right of the officer to the allowances which are no part of liis pay * — as the allowance for rent of quiirlers, as also the allowance for fuel, or rather right to purchase fuel at a reduced rate. Ibid., par. 9. In rare cases the form " to be suspended from the service" has been employed in the sentence. Such a suspension is equivalent, in substance, to a suspension from rank. A still rarer form, "to be suspended from duty," has been deemed to be practically equivalent to a sentence of suspension from command, and would still be appropriate in tlie case of an officer holding a position involving the performance of administrative duties, as distinguished from actual military command, as is the case of officers of the slaflE, to whose positions in the service military command, as such, is not attached. IHd , 732, par. 12. Suspension from duty, as distinguished from suspensionfrom rank, is a recognized punishment in the naval service. Navy Regulations, 1896, par. 1850; Harwood, 134, 135. The form "to be suspended from rank and duly" occurs in G. C. M. O. 19, of 1885 ' Dig. J. A. Gen., 730, par. 5. But advised that an officer senleficed to be sus- pended from rank could not because of such suspension alone be deprived of quarters previously duly selected, and occupied at the time of the suspension ; such a sentence not affecting a right previously accrued and vested. Ibid. Under existing usage (1892) an officer suspended by sentence from rank and command is deemed entitled to retain his quarters. But such rule may, in some cases, work a considerable inconvenience as well as prejudice to discipline ; as where, for example, the suspended officer is a post commander, and, pending the term of his suspension and while another officer has succeeded him as commander, continues to occupy the proper commanding officer's quarters. An army regulation prescribing that an officer in such a status shall not be entitled to retain or to select quarters by virtue of rank, but shall have assigned him. any quarters th:it are available at his late stution or el.sewhere, advised as desirable to be adopted. Ibid., 733, par. 17. Under the luling of the Secretary of War, as published in Circ. No. 3 (H. A.), 1888, an officer under suspension, but not required by his sentence to be " confined to the limits of his post," is not entitled to forage for his horse or horses during the term of his •suspension. TJirf., par. 18. » Ibid., 730, par. 6. PUNISHMENTS. 173 ]/ cannot a ffect the execution of his sen tencejio grant him one, and leayes of 1^ afeSOT Tre are not unfrfignaTitly graTiffttfiirrlpr such circnniBtances? ' ' le status of an officer under suspension is the same whether such sus- pension has been imposed directly by sentence or by way of commutation for a more severe punishment. Thus where a sentence of dismissal was commuted to suspension from rank on half -pay for one year, it has been held that the officer, while forfeiting the rights and privileges of rank and command during such term, was yet amenable to trial by court-martial for a military offense committed pending the same.' Suspension of Pay. — Where, however, the suspension is in terms extended by the sentence to pay, the pay is forfeited absolutely, not merely withheld. And all the pay is forfeited unless otherwise expressly indi- cated in the sentence. The forfeiture imposed by a sentence of suspension from rank (or command) and pay for a designated term is a forfeiture of the pay of that specific term, the suspension of the rank and that of the pay being coincident.' When Operative. — Like.dismissal, s uspension tak es effect upon and from I notice of the approval of the sent ence ofBciallj com mu nic ated, to-the . officer. / eithe r '^Ey the prom ulgation of the ^£i_e.J^his j^ation qr^ wheVe ,he is / '^ absent thCTefrom by authority, _by the delivery to^him of„a copy of_the \ order otappro val or o ther form of , official personal notification of the fact of the approval. * Termination of Sentence. — Suspension not divesting the officer of his office or commission, but simply holding in abeyance the rights and func- tions attached to his rank or command, he properly reverts, when the term of the punishment is completed, to his former rank and the command attached thereto, and continues to hold and exercise the same as before his arrest or trial.* Where an officer, when under a sentence of suspension, is ordered by the commander who approved the sentence, or some higher competent authority, to resume his command or the performance of his regular military duty, such order will in general operate as a constructive remission of the punish- ment and thus terminate the suspension.' ' Dig. J. A. Gen., 730, par. 12. Leave of abseuce is an indulgence which may be granted or refused at the discretion of the authority empowered by law and regulations to grant it. It is never demandable, as a matter of right, by any officer. 2 Dig. J. A. Gen., 731, par. 10 ; ibid., 733, par. 19. * Dig. J. A. Gen., 781, par. 8. Under such a sentence the officer cannot legally be deprived of pay due for a period prior to the suspension. Where an officer was sentenced to suspension from rank and pay for six months, held that his entire pay for those months was absolutely forfeited notwithstanding that the pay of officers of his grade was increased by statute pending the term. Ibid. See, also. Ibid., 733, par. 19. < J4a.,733, par. 14. ^ Ibid., 738,_ par. 16. Sullivan, who (p. 88) traces this punishment to "the eccle- siastical jurisdiction, which admitted suspension as a minor excommunication," adds, in regard to the officer sentenced: "At the expiration of the term of suspension he becomes a perfect man again." • Dig. J. A. Gen., 733, par. 11. 174 MILITABT LAW. Suspension of Cadets. — Suspension may be awarded as a punishment in the case of a cadet at the Military Academy; the form "to be suspended from the Military Academy " being usually employed in the sentence. The operation of such a sentence would be to detach the cadet temporarily from duty at the Academy during the period of such suspension. It is usually added in such a sentence that ' at the end of such term of suspen- sion the cadet is to join the next lower class. ' ' Reduction in Rank. — Loss of or reduction in files or steps {i.e., relative rank) in the list of the ofiBcers of his grade is a recognized legal punish- ment by sentence of court-martial in a case of a commissioned officer. Like disqualification, it belongs to the class of continuing punishments." The effect of this punishment is, by reducing the officer in rank, to deprive him of such relative right of promotion and command, as well as of precedence on courts or boards and in selecting quarters, etc., as he would have had had he remained at his original number. Such effect continues till the sentence is remitted. But this punishment cannot per se affect the officer's right to pay." ' Dig. J. A. Gen., 733, par. 13. Suspension does not affect pay unless expressly for- feited ill tlie sentence ; nor does a commutation of dismissal to suspension affect pay. When, therefore, a sentence of dismissal in the case of a cadet was commuted to suspen- sion for one year, held that he was entitled to full pay during the year of suspension. Ibid., 733, par. 19. » 12 Opiu., Att.-Gen., 547; Dig. J. A. Gen., 483, par. 1. ' Ibid., 483, par. 3. Where a court-martial convened by a department commander for the trial of an officer sentences the accused, upon conviction, to the punishment of a loss of files or steps in the list of officers of his rank, the approval of the commander is sufficient to give full effect to the sentence, and no action by superior authority can add anything to its effect or conclusiveness. Tlie code does not, as in the case of a sentence of dismissal, render a confirmation by the President essential to the execution of such a punishment, and the fact that the same involves a change in the Army Register does not make requisite or proper a revision of the case at the War Department. All that is called for upon the approval of such a sentence by the commander is simply to notify the Secretary of War thereof by forvparding a copy of the General Order promulgating such approval. The proceedings for their substance) as affecting officers other than the accused may then well be republished in General Orders from the Adjutant-Geneial's Office. Ibid. , 482, par. 2. This punishment has sometimes been remarked upon as an objectionable one apparently mainly on account of the inequality of its effect upon other officers of the grade of the officer sentenced. Thus where an officer is reduced a certain number of files, those below whom he is placed are advanced, while those below himself gain nothing. Where he is reduced to the foot of the list this objection does not apply; this form of the punishment, however, where the list is a long one is extreme and severe; more severe, often, than suspension for a fixed term. Ibid^, 483, par. 4. See G. C. M. O. 25, War Dept., 1873; do. 2, Dept. of Dakota, 1873. A second lieutenant was sentenced " to retain his present number on the lineal list of second lieutenants for three years." Held that this sentence necessarily deprived him of all right to promotion so long as it continued in force, and rendered him for so long ineligible for examination under the Act of October 1, 1890. Lieutenants junior to him mav be advanced without any regard to him and precisely as if he were not on the list at all. The promotion of an officer in such a status would have the effect of a pardon. Ibid., par. 5. A lieutenant was sentenced "to be reduced two files in regimental rank." As the regimental rank of a line officer is the basis of his rank in his arm and in the army at large, held that his reduction on the regimental list involved a corresponding reduction on the lists of lineal and relative rank. Ibid., 484, par. 6. PUNISHMENTS. ItS Reduction to the Ranks. — By several statutes ' enacted during the con- tinuance of the War of the Eebellion the punishment of reduction to the ranks was authorized to be inflicted upon commissioned officers. This punishment, inasmuch as it operated to divest the accused of his office, was in efEect a dismissal ; the status of an enlisted man, in which the officer was placed, was anomalous, since he occupied it, not voluntarily, but as a result , , of the sentence imposed and by operation of law. It i s no longer lega l, and i \^ cannot he reafter be imposed unless ex pressly authorized by siaiute; the / statutory provisions indicated being impliedly confined in their application to the period of the late war (or for a limited period succeeding the same), and not being re-enacted in the Eevised Statutes.' Fines. — While punishments in the nature of fines are not frequently imposed by sentences of courts-martial, for the reason that punishments in the nature of pecuniary penalties are in general made the subject of for- feitures of pay, or of suspensions from pay for specific periods, they have been, and, in a proper case, may still be, imposed in such sentences." An oflBcer, as the result of two successive trials by court-martial, stood sentenced to be reduced to tUe foot of the list of lieutenant-coloneU of cavalry, and to remain there without advancement for two years. Held that such a sentence was a legal one, and that as the officer had no rank in the army independent of his rank in the cavalry arm, the former rank being incidental to and measured by the latter, his relative army rank was necessarily affected by the sentence in the same manner as his lineal rank. Dig. J. A. Gen , 484, par. 7. In the execution of his sentences this officer had lost four files in his grade by the promotion over him of four majors. Held that bis status was equivalent lo that of an officer sentenced to lose files for two years, and (hat his sentence was a continuing punishment, subject to be discontinued by pardon. Ibid. A sentence of a first lieutenant "to be reduced in riink so that his name shall appear in the Army Register next below the name of" a certain other first lieutenant of his regiment, lield not a punishment executed upon approval, so as to be beyond remission, but, like a sentence "to lose files," a continuing punishment removable, by pardon.* IMd., par. 8. In 1874 an officer, then a first lieutenant, was sentenced "to be reduced in rank so that his name should thereafter be borne on the rolls of the army next after that of " a certain other first lieutenant of the same regiment. This officer was promoted to a captaincy May 10, 1883, and the officer under sentence was similarly promoted August 30, 1889. Upon an application by the latter (July, 1890) to have his sentence remitted, held that by the operation of the first of these promotions the sentence was rendered irrevocable. A remission or pnrdon would not at this time restore the officer to the position he occupied prior to the sentence, nor divest the rights of others acquired by promotion during the pendency of his reduction. The sentence had indeed been fully executed and was therefore beyond the reach of the pardoning power. Ibid., pnr. 9. ' Sec. 33, Act of March 3, 1863 (12 Stat, at Large, 735) ; Sec. 6, Act of March 13, 1863 (12 Md., 821), ' Dig, J. A. Gen., 658. Cases of officers sentenced to this punishment upon convic- tion under the first-named statute are published in G, O. 37, War Dept,, 1864 ; do, 80, Dept. of the Gulf, 1863; do 38, Dept, of the Bast, 1864; do, 36, Middle Dept., 1864; do. 5, 2d Div., 5th Army Corps, 1864 ; G, C, M, O. 35, 51, Army of Potomac, 1864 : do. 13 id., 1865. No instance has been met with of the imposition of this punishment upon a conviction under the latter statute. In some few cases, during the late war, this punish- ment was adjudged — illegally — for offenses other than those specified in the acts designated in the text. ' The only fine known to military law is the fine authorized to be imposed by way o{ punishment by sentence of court-martial. No military commander is empowered undej * la Opins. Att -rjen,, 54V; 17 id., 17, 666, ^ Q 1 '?'6 MILITAIi Y LA W. Sentences of imprisonment till a fiae, also imposed by -the sentence, is paid are sanctioned by the usage of the service. It is proper, however, in snch sentences to af&x a limit beyond which the punishmeat shall not be continued in any event. Where a sentence adjudges a fine, without also adding (with a view to enforcing its payment) a term of confinement, such a confinement cannot of course legally be imposed by the military commander.' Fines adjudged by courts-martial accrue to the United States. A court-martial cannot impose a fine for the benefit of an individual, nor can a fine adjudged in general terms be in any part appropriated for the benefit of an individual by-executive authority. A court-martial, in sentencing a party to pay a fine, has no authority to direct the collection of the same by a provost-marshal, or by* any compulsory process; such a direction added in a sentence should be disregarded as mere surplusage." any circumstances to impose ii fine upon an officer or a soldier. Dig. J. A. Gen., 414, par. 1. The terms "fine" and " forfeiture " as used in military law are not synonymous. A. fine is a pecuniary penalty, imposed by tlie sentence of a court-martial, the operation of which is to require an offender to pay a specific sum to the United States by way of punishment for an offense. The sentence is executed when the sum therein specified has been paid to and received by the United States. A. forfeiture is a deprivation of pay or allowances awarded by sentence of a court-martial, or imposed by law on conviction of a military offense. A fine bears no relation to the pay of the offender ; a forfeiture, on the other hand, is restricted to and can never exceed the total of such pay and allowances, due or to become due during the period of its operation. A for- feiture, therefore, operates to retain fi'om the offender, and deprive Mm of the possession of, the whole or a part of his current pay or allowances during a period of time expressly set forth in the sentence. A fine or forfeiture imposed by the sentence of a military tribunal may be remitted by the proper reviewing authority, and if it has not been deposited in the treasury may be restored by way of pardon or mitigation.* A fine is distinguished from a " stoppage." The former is a punialiment and there- fore imposable only by court-martial. The latter is a charge on account, being an enforced reimbursement, by means of a debit entered against the pay of the party on the rolls, either for an amount due the United States — as for the value of public property lost, extra clothing issued, reward paid for apprehension as a deserter, etc.— or for an amount due an individual and expressly authorized by law or regulation to be thus charged See par. 1390, Army Regulations of 1895. Any stoppage, indeed, to be legally executed must be specifically enjoined by statute or authorized regulation. Und., par. 3. = Ibid., 440, par. 4. So, held that par. 2 of G. O. 61, "War Department, 1865, to the effect that where a couri -martial, in imposing a fine, has failed to require that the prisoner shall be confined till the fine is paid, "he will not be released without orders from the War Department except on payment of the fine," transcended the authority of an executive order ; such a requirement being a punishment, which can be prescribed only by sentence of court-martial. Ibid. '' Ibid., 414, par. 3. Where an officer, sentenced (in connection with dismissal) to the payment of a fine and to imprisonment till the fine was paid, and held for some time in confinement by reason of the non-payment of the fine, applied to be released on the ground that he was quite destitute of means and incapable of satisfying the amount of the fine, suggested that, in order to protect the Government from fraud, the procedure prescribed by Sec. 1043, Rev. Sts., in cases of "poor convicts," imprisoned under sentences of United States courts, be in substance followed, and that the prisoner be not released except upon an investigation as to his pecuniary ability by a proper officer, and, * The imposition of fines, as such, is not frequent in the practice of courts-martial. They are properly imposed, however, upon conviction of offenses in the natui-e of larceny or embezzlement, in which case they are made equal in amount to the sum embezzled or the value of the property converted. In such cases the sentence provides that the offender be imprisoned until the fine is paid. See G. C. M. O. 81, War Department, 1871. PUNISHMENTS. ITY Forfeitures. — Forfeitures are pecuniary penalties which become opera- tive (a) by operation of law, upon conviction of certain military offenses, j // or (b) in conformity "toJaM'm'executioii of , The sentence_of_aJawfully con- f'^ stitut"ed.,mjli-t arPv4f -^uHal. " A court-martial, in forfeiting pay by sentence, sE'ould so fix the amount to be forfeited that the same will clearly and unmistakably appear from the sentence itself, without a reference to any order or other source of information being necessary." ' Pay cannot be forfeited (in a sentence) by implication. If the court intends to forfeit pay, the penalty of forfeiture should be adjudged in express terms in the sentence." No other punishment imposable by court- martial — neither a sentence of death, dismissal, suspension, dishonorable discharge, nor imprisonment — involves per se a forfeiture or deprivation of any part of the pay or allowances due the party at the time of the approval or taking effect of the sentence. ' Nor can pay ' be forfeited by any miscon- if found to be iudigent as represented, upon liis written statement under oath that he was wholly incapable of paying or pioouriug the means to pay any part of the fine. Dig. J. A. Geu., 415, par. 5. An oflficer on trial applied to have certain witnesses summoned from a distance, and a continuance granted to await their appearance. To this the court consented on his making an affidavit setting forth material matter expected to be established by the witnesses. When these appeared it was found thai they could give no material testimony upon the points indicated in the affidavit. The court, in making up its sentence upon conviction, proposed to impose upon the accused (iu connection with imprisonment) a fine of two hundred dollars as the eftimnted cost to the government of procuring the attendance of the said witnesses. Advised that the facts stilted did not constitute a proper basis for the imposition of such fine as a punishment for the offense for W'hicb the officer was con- victed ; that if his conduct in the matter was deemed so culpable as to constitute a military offense, it should be made the subject of a separate charge to be investigated on a separate trial. Ibid., 414, par. 4. ' Ibid., 417, par. 1. So ?ield that a sentence which required a soldier to forfeit an amoimt of pay sufficient to reimburse the United States for the value of certain property appropriated by him, without fixing the value of such property, was irregular, and might properly be disapproved unless corrected by the court on being reassembled for a revision.* Ibid. A sentence forfeiting "pay " or " pay and bounty " does not affect the right of the accused to a pecuniary allowance — as, for example, an allowance due him for clothing not drawn. Ibid.', 418, par. 3. A forfeiture, by sentence, of " pay and allowances," while it does not affect the right of the soldier to receive, during his term of enlistment, the usual allowance of clothing in kind, forfeits any pecuniary allowance that may be due the soldier on account of clothing not drawn. Ibid., par. 4. A sentence of forfeiture of " all pay and allowances " includes and forfeits " extra- duty pay." Ibid. ' Compare Elliott vs. Railroad Co., 9 Otto, 573. ' This principle is well illustrated by the opinion of the Attorney- General (13 Opins., 103), concurring with an opinion of the Judge-Advocate General, in the case of Major Herod, where it was held that the fact that the accused had been sentenced to death, on conviction of murder, did not affect his right to his pay from the date of his arrest to that of the final action taken on the sentence by the President. And see the more recent opin- ion of the Attorney-General of November 9, 1876, (15 Opins., 175,) to the effect that the pay of officers ar.d seamen of the navy is not divested by the operation of sentences of imprisonment or suspension, but only when forfeited in specific and express terms in the sentence. See, also, Dig. J. A. Gen., 417, par. 2. * Other than " retained pay," see par. 1869, A. R. 1895. * Compare case in G. C. M. O. 65, Dept. of Daliota, 1880. 1T8 MILITARY LAW. dact of a soldier, however grave, except for desertion or absence without leave, unless he is brought to trial and expressly sentenced to forfeiture for the same.' I -""^aj forfeited by sentence of court-martial^ can accrue to the United -r»/ StateTonly. A sentence cannot forfei|j^ap£ropriate, or^'" stop ""pay lor ffie l^mbursement or benefit of an^ individual, civil or military, however justljthe same may be due3.iDi» either Jor money borrowed, stolen, or embezzled by^the accused, ^r to satisfj_anyjther pecuniary liability of the ' accused whether in the nature of debt or damages; nor can a sentence for- j feit pay"for the support or benefit of the family of the accused, or for the benefit of a company fund, post fund, hospital fund, etc., none of these ! funds being money of the United States. All forfeitures by sentence, 1 whether or not so expressed in terms, are to be understood and treated I as forfeitures to the United States accruing to the general treasury." 'Where a sentence imposes a forfeiture of the " monthly " pay or a part of the " monthly " pay of a soldier for a designated number of months, the sum forfeited is the amount indicated multiplied by the number of months. Thus where the sentence of a soldier imposed a confinement for eight months with a forfeiture of eight dollars of his monthly pay for the same period, the sum forfeited was not eight but sixty-four dollars.' Stoppages. — The terms " forfeiture " and " stoppage " are not synony- mous. A forfeiture, as has.been seen, is a pecuniary_penalty, Jn^thenature of a flue, imposed by a court-martial by way of punishment Jor ajailitary offense. . Forfeitures are usually based upon, and taken or deducted from, The pay of officers and enlisted men, and accrue in every case to the United States. Stoppages are administrative deductions from the pay or allowances of officers or enlisted men, made in pursuance of authority expressly con- ferred by statute or regulation, with a view to reimburse the United States ' Dig. J. A. Gen , 417, par. 3. ' Ibid., 418, par. 5. lu a case of a forfeiture, by sentence, of " pay due " or "pay due and lo become due," the amount of pay due and payable to the party at the date of the approval of the sentence is, in contemplation of law, returned from the appro- priation for the Army to the general treasury and becomes public money, and, being in the treasury, cannot, without a violation of Art. I, Sec. 9, § 6, of the Constitution, be withdrawn aud restored to the party except by the authority of Congress. A sentence forfeiting pay can be remitted only as to pay not due and payable at the date of the remission. Where a soldier's pay has been forfeited by an executed sentence, no mere amendment of the muster-roll upon which the same has been noted can operated to undo such forfeiture. After pay forfeited by sentence has gone into the Treasury, it cannot add to the authority of the Executive to return it that the sentence was in fact void ; the authority of Congress is still necessary to the reimbursement of the officer or soldier. iM(?., 421, par. 14. ' Ibid., 419, par. 6. Where an officer was sentenced to be dismissed with forfeiture of pay due, and subsequently to the approval of the sentence, but before such approval had been promulgated to the Army or the officer had been officially notified of the same, he applied for and received the pay due him, held that, inasmuch as the for- feiture had not taken effect at the time of the payment, no illegal act was committed by the officer, and that the paymaster who paid him was not properly to beheld account- able for the amount paid. Ibid., 431, par. 13. ti' T PUNISHMENTS. 179 for stores or property purchased or used, or for articles of public property lost or g^royed, or for a debt due on account. In a limited naoiber of casesTwSen'auEEofizeS' By TawTstwg^gs may be made for debts, or amounts due tS" private indi vidlials, as_i aJJiie,Aonipany tailflr, in,, accordance witli Sec- , ■ ■« tion if^F oTlFe ^evised Statutes, o r as to post traders and^kundrymen, in J^.^^^ accordance~wil;h tKeautliority conferred by the Act of June 30, 1882." . -^ ...J? ?* Wj How Made. — Stoppages are usually entered upon the muster and pay rolls, or are notified to the officers against whom they are made. The correctness of a proposed s toppage m ust, in general, be admitted by the debtor before the co ntemp lgitadL-deSuction can be made. iT^the "roftsT)e signed, or if payb e accepted, however...yithQul gu^ion or .protestrfrom which a certain amount has been deducted, such signing^ or acceptance will operateasintrimpIieS'waiver of objection to the justice or correctness of the charger^ In a case of supposed liability to stoppage resulting from a neglect or an act chargeable as a military offense, and as to which the facts are disputed, it is in general preferable to have the case investigated and the actual pecuniary liability, if any, fixed by a trial by court-martial.' ' Dig. J. A. Gen., 730, par. 3; ibid., 731, par. 8 ; ibid., 719. par. 1. Stoppages are authorized to be made in Sections 1144, 1145, 1330, 1303, 1308, 1804, 1308, and 1766 of the Revised Statutes. ^ 83 Stat, at Large, 133. A stoppage is distinguished from a forfeiture or fine, and an executive stoppage, or stoppage by order, cannot be imposed for au offense. But it is entirely legal to stop against a soldier's pay, under par. 1390, A. R. 1895, an amount required to reimburse the United States for loss on account of damage done to public property, while at the same time bringing the soldier to trial by court-martial for the offense involved. Ibid., 730, par. 3. Where subsistence stores were sold, by a post commissary of subsistence, to a mess of three oiflcers of the post, and charged to the mess as such, lield that such mess was not in the nature of a commercial partnership in which each member was bound for the joint indebtedness, but was simply an association, for purposes of convenience and economy, of three individuals, each of whom was bound to the United Slates only for his proportion — one third — of the account. And held that a member who had paid his proportion to one of the other members who acted as caterer, but who had deceased without paying over this amount to the commissary, remained liable for sucli propor- tion to the United States. IMd., 733, par. 1. Construing Sec. 1766, Rev. Sts., as applying only to bonded disbursing officers, held that a fine of one hundred dollars imposed by a civil court upon a soldier for a violation of the postal laws could not legally be stopped against his pay under that section. But, independently of this statute, the pay of an officer or soldier who is in arrears to the United States may always legally be withheld till the indebtedness is satisfied.* Ibid., 731, par. 9. See, also, par. 3, p. 180, post. ' Dig. J. A. Gen., 719, par. 1. A recruit absented himself from a detachment of recruits, at a place in Ohio, while en route from the recruiting depot to his proper station. Fort Yates, N. D., and was taken to Fort Niagara and tried upon a charge of desertion, but convicted of absence without leave only. Held that the only stoppages to which he could legally be subjected were the amount of the pay and allowances accruing during his absence, under par. 133, A. R. 1895, and the amount of the expenses incurred in transporting him " to his proper station," under par. 136, A. R. 1895, Bnt held further that the words "to his proper station," in the last part of the regulation, were to be construed as equivalent to the expression, in the first part, "to the station of his com- pany or to the place of his trial " ; that it would not be legal to stop against him the ex- * Gratiot to. U. S., 15 Peters, 336 ; McKnight vs. U. S., 98 U. S., 180. -7 180 MILITARY LAW. The pay of aa officer or soldier cannot be subjected to stoppage except by the authority of a statute or regulation specifically authorizing the same, or by sentence of a court-martial imposing a forfeiture or fine as a punish- ment, or where the party has become indebted to the United States on account. ' The United States is not authorized to stop against the pay of an officer or soldier an amount of personal indebtedness to another officer or soldier, though such indebtedness may have grown out of the relations of the mili- tary service. Thus, in the absence of a sentence of court-martial forfeiting the same, an officer's pay cannot legally be stopped with a view to the reim- bursement of enlisted men who have deposited with him money for safe- keeping, and which he has failed to return when required, the officer being accountable for the same in a personal capacity only." Stoppages for Certain Injuries done to Citizens of the United States. — The 54th Article of War contains the requirement that " every officer com- manding in quarters, garrison, or on the march shall keep good order and, to the utmost of his power, redress all abuses or disorders which may be penses of the transportation to both places ; that if the place of trial was, as here, dif- ferent from the station of the company, it would be proper to stop the expenses of transportation to the former and not to the latter ; and liiat, this being done, the stoppage of the expense of transporting him to the station of his company, after the trial, would not be authorized. Dig. J. A. Geu., 722, par. 12. ' Dig. -J. A. Gen., 719, par. 1. Pay due an officer or soldier can legally be stopped only by reason of an accountability to the United States.* So Jield that it could not legally he stopped to reimburse a telegraph company ibr moneys received by a sergeant of the then Signal Corps for ti-ansmitting private messages over its line, the same not being a line "operated by the United States" in the sense of the Act of March 3, 1883, and the indebtedness of the sergeant being to the telegraph company only, not to the United States. So held that it would not be legal to stop the pay of an officer for the amount of a local bounty, alleged to have been neglected to be paid over by him to an enlisted volunteer on whose account it was received. An officer or soldier cannot legally be mulcted of any part of his pay for the satisfaction of a private claim. Ibid., 721, par. 8. A superior is not authorized to stop against the pay of an inferior the value of property charged to have been criminally misappropiiatcd, and it is the experience of the Judge Advocate-General that most or many of the cases of loss of or injury to public property in which the facts have been investigated and the damage assessed by boards of survey would have been more profitably passed upon by courts-martial, by which, instead of a stoppage, a forfeiture could have been imposed, as a punishment, by sentence. IHd., 719, par. 1. ' Ibid., 720, par. 2. Par. 263, A. R. of 1895, requiring deductions to be made from the pay of soldiers in favor of "tradesmen " who, when " relieved from ordinary mili- tary duty," are authorized to make or repair soldiers' uniforms, held to authorize stop- pages for dues to tailors who are in the military service, and also f or ^wpr to fiivilian tailors. Ibid., par. 4 ; Circular 8, A. G. O., 1896. See, also, note 2, page 179, ante. 'I'he Army Appropriation Act of June 16, 1892, provides that " the pay of officers of the army may be withheld under Sec. 1766, R. S., on account of an indebtedness to tlie United States" ad m'itted or shown by the judgment of a court, but not otherwise, unless upon a special order issued according to the direction of the Secretary of War." Held that the last part of this provision was not to be eonstraed separately, but in connection with the former, and could not be interpreted as empowering the Secretary of War to stop the pay of officers of the Army to satisfy private debts. Ibid., 722, par. 11. • See 16 Opin. Att.-Gen:, 477. PUNISHMENTS. i81 commibted by any officer or soldier under his command; and if, upon com- plaint made -to him of officers or soldiers beating or otherwise ill-treating any person, disturbing fairs or markets, or committing any kind of riot, to the disquieting of the citizens of the United States, he refuses or omits to see justice done to the offender, and reparation made to the party injured, so far as part of the offender's pay shall go toward such reparation, he shall be dismissed from the service or otherwise punished as a court-martial may direct." "While this Article would certainly appear to contemplate the making cf reparation for injuries done to the persons of citizens rather than for injuries done to their property, in view of the precedents it may probably be regarded as within the equity of the Article to indemnify a citizen for wanton injury done to his property by an officer or soldier or by an organ- ized command, by means of a stoppage against his or their pay summarily ordered upon investigation by the commanding officer.' In a few cases a stoppage of the pay of an entire regiment for damage to private property committed by its members has been sanctioned as authorized under the general remedial provisions of this Article.'' The stoppage contemplated is quite distinct from a punishment by fine, and it cannot afEect the question of the summary reparation authorized by the Article that the offender or offenders may have already been tried for the offense and sentenced to forfeiture of pay. In such a case, indeed, the forfeiture, as to its execution, would properly take precedence of the stoppage. On the other hand, where the stoppage is first duly ordered under the Article, it has precedence over a forfeiture subsequently adjudged for the offense.' It does not affect the question of reparation under the Article that the offender or offenders may be criminally liable for the injury committed, or may have been punished therefor by the civil authorities.* Reprimands. — This form of punishment is frequently resorted to in sen- tences imposed upon commissioned officers by general courts-martial. The function of the court in imposing a reprimand as a part of its sentence , ' See G. O. 35, Hdqrs. of Army, 1868, construing this Article, and prescribing the proceeding under it ; leparation for iujiiiy to property as well as person being author- ized. The Article, however, is antiquated in form and indefinite and incomplete in its provisions, and calls for repenl or amendment. For some of the principal cases in which it has been applied In our practice the student is referred to G. O. 4, Dept. of the OMo, 1863 ; do. 133, Dept. of the Gulf, 1864; do. 161, Dept. of Washington, 1865; do. 59, id., 1866; do. 74, Dept. of Arkansas, 1865; do. 48, 55, Dept. of Louisiana, 1866; do. 6, Dept. of the Cumberland, 1867; do. 10, Dept. of the South, 1870. ' Dig. J. A. Gen., 46, par. 1. Held that the remedial provision of this Article could not be enforced in favor of military persons, or in favor of the United States, or to indemnify pRrties for property stolen or embezzled. Ibid., 47, par. 4. ' nid., 46, par. 2. The pay of the offender or offenders can be resorted to only for the purpose of the " reparation." A military commander can have no authority to add a further amount of stoppage by way of punishment. Ibid., 47, par. 5. *Ibid., 46, par. 3. 7 182 MILITARY LAW. ends with the incorporation of such a requirement in the sentence imposed ■ in a particular case. It cannot prescribe its f orm^, indicate its severity, or mdeedadd__any thing in regard to its execution^ save Jto^directtj^att reprimand imposed in ^^BenJ;ence shall be administered by the commander who con vened.,^t&. court. A sentence directing a reprimand to be imposed by an officer inferior to the convening authority is not in accordance with the approved practice of the service. It is not necessary or desirable, how- ever, that the court should direct as to the execution of the sentence, the same being the proper province of the reviewing officer. ' Although in adjudging a reprimand it is generally intended by a court- martial to impose a mild punishment, the quality of the reprimand is nevertheless left to the discretion of the authority who is. to pronounce it, and it is open to him to make it as severe as he may deem expedient with- out _being chargeable with adding to the punishment.' ENLISTED MEK. The following punishments are those usually imposed upon enlisted men. Death.' — The subject of capital punishment has already been discussed. Reduction to the Ranks. — This punishment, as the name implies, is applicable only to non-commissioned officers. Eeduction may be imposed as a separate punishment, or in connection with forfeiture of pay or confine- ment. If, however, punishment in the nature of imprisonment or confine- ment be imposed, reduction to the ranks should constitute the first clause of the sentence, and should be executed before the sentence of confinement becomes operative. In certain branches of the staff, the engineer, and the ordnance departments, for example, where the statutes recognize several grades or classes of privates, a private of the first or highest class may, by sentence of a court-martial, be reduced to a lower class as a punishment for a military offense.' Suspension. — Suspension, as a punishment for a non-commissioned officer, is not authorized in terms in the 101st Article, nor is it contemplated ./ 'Dig. J. A. Gen., 660, par. 1. ^ Ibid., par. 3. • See the title Death in the paragraph respecting the punishments applicable to com- missioned officers. * A court-martial, in sentencing a non-commissioned officer to be reduced to the ranks, is not empowered to direct that when reduced he lie transferred to another regiment or company. The authority to order the transfer of soldiers is expressly vested by Art. XVIII of the Army Regulations of 1895 in certain military commanders. Dig. J. A. Gen., 653, par. 1. The warrant or certificate given to a non-commissioned officer is as much the per- sonal property of the individual as is the commission given to a commissioned officer. In the absence of any statute or regulation requiring that a sergeant or corporal shall surrender his warrant on being reduced to the ranks (or dishonorably discharged) he may retain it with the same right as that by which an officer retains his formal commis- sion on being dismissed. Ibid,, par. 2. PUNISHMENTS. 183 in tlie Army Eegulations. It has been adjudged in but rare cases,' and caniiot K regardermm.cttonM by principle oF usage.' Disiioiiorable Discharge. — This pnnishment is frequently imposed upon enlisted men as a penalty for the more serious military offenses, either separately or in combination with forfeiture of pay and a term of imprison- ment; in which case it constitutes the severest panishment that is usually imposed upon this class of offenders in time of peace. The effect of a sen- tence of dishonorable discharge, like that of dismissal in the case of an ofiBcer, is to completely sever the soldier from'all connection with the military establishment, and he can only re-enter it, if at all, by an enlistment con- tract executed in the usual manner. A dishonorable discharge is a discharge expressly imposed as a punish- ment by the sentence of a general court-martial. Itjs only in pursuance of such a sentence that a dishonoraW^disch^argecaii be j,^orized, for, being a puTrisHmenfTTrcaSiiot' be prescribed Jby^an order. In a case of such dis- charge the""word "dishonorably " is inserted before the word " discharged " in the discharge certificate, and it is added that the discharge is given pur- suant to the sentence of a certain general court-martial, specifying it by reference to the order in which it was promulgated.' In imposing a considerable term of confinement, courts-martial, now almost invariably add the penalty of dishonorable discharge. In general this penalty is directed by the court to he first executed, — as by the form "to be dishonorably discharged and confined," etc. "Where there is no express indication in the sentence as to which punishment is to be first enforced, the one named first in order is regarded as that intended to be first executed, and is so executed in practice.' , ' See a comparatively late instance in General Court-martial Orders, No. 33, Dept. of the East, 1872. 'Dig. J. A. Gen., 733. par. 15. ' Ibid., 361, par. 35. Such a discharge is held also to be involved in a sentence " to be drummed out of the service." Ibid. Held thiit an executed dishonorable discharge was an absolute expulsion from the Array, and as such did not merely terminate the particular enlistment, but covered all previous unexecuted enlistments of the soldier, if any. A soldier sentenced to a dis- honorable discharge, duly approved and executed, cannot be made amenable for a desertion committed under a prior enlistment. Ibid., par. 26. Held that a subsequent enlistment after a d'shonorable discharge would not operate to revive any outstanding ameniibility of the soldier. This upon a principle of public policy and good faith, and because the acceptance into the service under the later enlist- ment is in the nature of a condonation. Ibid., par. 37. The mere fact that at the time of the muster-out of his regiment a soldier was iinder arrest by the civil aulliorities for an alleged crime, which, however, was not fol- lowed by a trial and conviction, does not justify his being dishonorably discharged. If released without trial, the discharge should be honorable. Ibid., par. 28. A soldier dishonorably discharged loses his retained pay under Sec. 1381, Rev. Sts. (see par. 1381, A. R 1895), and his travel pay under Sec. 1390, Rev. Sts. lUd., par. 39. * Dig. J. A. Gen., 357, par. 7. Where a court-martial, in imposing dishonorable discharge in connection with confinement, directs that the discharge be lirst executed, or where it is reasonably to be inferred from the terms of the sentence that it was the intention of the court that the punishments should be executed in this order, tb.'» >' ISi ■ MILITARY LAW. The service of a soldier dishonorably discharged under a sentence of court-martial terminates, and his discharge should be dated, as of the day Qn which__the_ apprpxal of the sentence Js officially published, or the order promulgating such approval is received, at the post where the soldier is held. It islo^ ffiat date that he is to be paid, if pay is due him.' Where a soldierJias.be8n legally sentenced to be dishojiorably discharged, and suc£~sentenceJias. been duly executed, it is beyond the power of the Executive, whatever the merits of the case, to substitute an honorable in lieu "of" the dishonorable discharge. The latter having gone into effect cannot be undone; moreover the soldier, having been thereby wholly detached from the military service and made a civilian, cannot again be dis- charged from the service until he has been again enlisted into it." While a dishonorable discharge, standing by itself, imposes no disqualifi- cation upon re-enlistment in the military service or employment in the civil service of the United States, such disqualification is in terms imposed by the Act of August 1, 1894,' which contains the requirement that " no soldier reviewing officer, iu approving tlie sentence, is not empowered to command that the execution of the discharge be postponed to the end of the term of confinement.* On the, other hand, if the sentence clearly imposes the dishonorable discharge of the soldier at the end o/the term of confinement, the reviewing officer is not authorized to direct that he he discharged forthwith. Dig. J. A. Geu., 357, par. 8. Where a court-martial sentenced a soldier, in connection with confinement, to be dishonorablv discharged at such date as might be fixed by the reviewing officer, advised tliat such a sentence was exceptional and irregular as devolving upon the reviewing officer a duty pertaining to the court, and that the court would properly be reassembled for the revision of the same.f Ibid., par. 9. A sentence " to be imprisoned for fifteen years and then dishonorably discharged " held (in view of the fact that enlistments in our Army are for five years only) to be, so far as related to the discharge, irregular and unauthorized. A sentence of court-martial cannot operate to retain a soldier in the United States' service beyond his legal term of enlistment. And advised that the court be reassembled for the revision of this sentence, and that it be suggested to it to impose the discharge in advance of the imprisonment, in accordance with approved precedents. lUd., 358, par. 10. ' Dig. J. A. Gen., 359, pur. 16. ^ Utid., 3.i8, par. 12. * Act of Auijust 1, 189i (38 Stat, at Large, 316). See, also, in this connection the 8d Article of War, in which certain enlistments are forbidden; Dig, J. A. Gen., 385, par. 3; U S. vs. Grimley, 137 U, S., 147; paragraphs 823-827, Army Regulations of 1895; and Dig. J. A. Gen , 358, par. 11. The Act of June 16, 1890, (26 Slat, at Large, 157,) contained the provision "that the Secretary of War shall determine what misconduct shall constitute a faihre to render honest and faithful service within the meaning of this Act But no soldier who has deserted at any time during the term of an enlistment shall be deemed to have served such term honestly and faithfully." Under the authority conferred by this statute the Secretary of War has decided that in the following cases there has bien a failure to render honest and faithful service : (1) Desertion. (3) When the soldier is in confinement under a general court-martial sentence expressly imposing imprisonment until or beyond the expiration of his term; when dis- charged under sentence of general court-martial; when discharged by order from the War Department specifying forfeiture, or because of impiisonment by the civil authority. * See an opinion of the Judp:e-Advocate General on this subject published and approved by the Secretary of War in G. O. 71, War Dept., 18T5. + See opinion to this effect published as approved by the Secretary of War in G. O. 90, War Dept., 1872. PUNISHMENTS. 185 shall be agai n re-enlisted in the Army whose service during his last preced- ing term of enlistmsnt has iiot.^b£6ILiSE§§Lsa!iX^ithful.'' Imprisonment ; Confinement. — In respect to their legal effects upon an enlisted man the terms impris onmerii} _and_confinement are identical. Such pnuishments may be exero^ ( a) in a state pri son or peniten tiary wh en the offense of which he has been convicted ' ^woul d by some statute oFthe United States, or by some statute of the State, Territory, or District in which such offense may be committed, or by the common law as the same exists in such State, Territory,or District, subject such convict to such punishment " ;' (3) Wlieu tlie soldier is discharged for minority concealed at enlistment, or for other ciiuse involving fraud in enlistment, or for disability caused by his misconduct. (4) Upon the approved finding of a board of ofBcers called under paragraph 148, Army Begulations of 1895, that the soldier has not served honestly and faithfully to the dale of discbarge. The cause of forfeiture will be staled ou the muster and pay-rolls and on the final statements of the soldier. Any foim of discbarge other than such as is prescribed in the 4th Article of War is irregular and inoperative (unless indeed otherwise authorized by subsequent statute). Mere desertion does not operate as a discharge of a soldier ; he may then be dropped from the rolls of his command, but he is in no sense discharged from the army. Nor can an official publication, in orders, of a sentence of dishonorable discharge have the effect of discharging a soldier: there must still be notice, actual, as by the delivery of the formal discharge certificate, or constructive, of the formal discharge. A soldier cannot discharge himself by simply leaving the service at the expiration of his term. The final statements required, by Regulations,* to be furnished with the discharge constitute no part of the discharge: the discharge is complete without them. Dig. J. A. Gen., 359, par. 17 ' 971 h Article of "War. This Article by necessary implication prohibits the imposi- tion of confinement in a penitentiary as a punishment for offenses of a purely or exclusively military character — such as desertion, for example.f Dig. Opiu. J. A. Gen., 113, par. 1. A sentence of penitentiary confinement in a case of a. purely military offense is wholly unauthorized and should be disapproved. Effect cannot be given to such a sentence by commuting it to confinement in a militarj' prison or to some other punish- ment which would be legal for such offense. Nor in a case of such an offense can a severer penalty, as death, be commuted to confinement in a penitentiary. Ihid., par. 2. Korean pcnitentiaiy confinement be legalized as a punishment for purely military offenses by designating a penitentiary as a " muitary prison " and ordering the confine- ment there of soldiers seutenced to imprisonment on conviction of such offenses. Ibid., par. 8. An offense charged as " conduct to the prejudice of good order andmilitary discipline," which, however, is in fact a laioeny.J embezzlement, violent crime, or other offense made punishable with penitentiary confinement by the law of the State, etc., may legally be visited with this punishment. Ibid., 114, par. 4. The term "penitentiary" as employed in this Article has reference to civil prisons only, as the penitentiary of the United Slates, or Districi of Columbia at Washington, the public prisons or penitentiaries of the different State.s, and the "penitentiaries erected by the United States" (see Section 1892, Revised Statutes) in most of the Terri- tories. The military prison at Leavenworth is- not a penitentiary in the sense of the Article. The term " Stale (or State's) prison " in a sentence is equivalent to penitentiary. Ibid., par, 5. A military prisoner duly sentenced or committed to a penitentiary becomes subject to the government and rules of the institution. Ibid., par. 6. * Par. 139. A. R. 189.5. t See G. O. 4, Wnr Dept., 1867; also the action taken in cases in the following General Orders: G. O. 21, Dept. of the Platte, 1866; G. O. 21, ibid., 1871 ; G. O. 44, Eighth Army Corps, 1862; G. C. M. O. 34, 35, 43, 46, 72. 73, Dept. of ihe Missouri, 1870. $ In a case of larceny the court should inform itself as to whether the value of the property stolen be not too smatl to permit of penitentiary confinement for the offense under the local law. See G. O. 44, Eighth Army Corps, 1863; G. 0. M. O. 63, Dept. of the Platte, 1873. ^y 186 MILITABT LAW. or (J) m the Military Prisoa,' or at a niili„t aEg. TJ Ost, as a " general pris- Where a soldier is senteuced to be confiued in a penitentiaiy, the proper reviewing authority may legally designate for the execution of the punishment any State or Terri- torial penitentiary within his command. Where there is no such penitentiary available for the purpose or desirable to be resorted to, he will properly submit the case to the Secreiary of War for the designation of a proper penitentiary. Dig. J. A. Gen., 114, par. 7. A court-martial, in imposing by its sentence the punishment of confinement in a penitentiary, is not required to follow the statute of the United States or of the State, etc., as to the term of the confinement. It may adjudge, at its discretion, a less or a greater lerm than that affixed by such statute to the particular offense. At the same time the court will often do well lo consult the statute, as indicating a reasonable measure of puuishment for the offense. Ibid., par. 8. Where a court-martial specitically sentences an accused to confinement in a " military prison," he cannot legally be eommilled to a penitentiary, although such form of imprisonment would be authorized by the character of his offense. But where a sentence of confinement is expressed in general terms, as where it directs that the accused shall be confined " in such place or prison as the proper authority may order," or in terms to such effect, held that the same piay, under this Article, legally be executed by the commitment of the party to a penitentiary, to be designated by the reviewing officer or Secretary of War, provided, of course, the offense is of such a nature as to warrant this form of punishment. Ibid., par. 9. Held that penitentiary confinement could not legally be adjudged upon a conviction of a violation of the 21st Article, alleged in the specification lo have consisied in the lifting up of a weapon (a pistol) against a commanding ofl:cer and discharging it at him with intent to kill. By charging the offense under this Article the government elected to treat it as a purely military offense, subject only to a military punishment." So, upon a conviction nf joining in a mutiny, in violation of Article 23, held that a sentence of confinement iu a penitentiary would not be legal although the mutiny involved a hom- icide, set forth in the specification as an incidental aggravating circumstance. To have warranted such a punishment in either of these cases tlie Government should have treated the act as a "crime," and charged and brought it to trial as such, under Article 63. Ibid., 115, par. 10. Where the act is charged as a crime under Article 63, and charge and specification taken together show an oifense punishable with confinement In a penitentiary by the law of the locus of the crime, the sentence may legally adjudge such a punishment. So lield iu a case where charge and specification together made out an allegation of perjury under Section 5392, Revised Statutes. Ibi'., par. 11. "Obtaining monev under false pretenses" is punishable by confinement in a peni- tentiarj' by the laws of Arizona. A sentence of court-martial imposing this punishment, on conviction of an offense of this description committed in this Territory, charged as a crime under Article 62, held authorized by Article 97. Ibid., par. 13. A conviction of a larceny of property of such slight value as not to authorize this punishment under the local law would not warraBt a sentence of confinement in a peni- tentiary. In a case of larceny the court should inform itself as to whether the value of the property stolen be not too small to permit of penitentiary confinement for the offense under the law of the State, etc.* Ibid., par. 13. A punishment of confinement in a penitentiary, where legal, may be mitigated to confinement in a military prison or at a military post. Ibid., 116, par. 15. A discharged soldier serving a sentence of confinement in a State or Territorial penitentiary still remains under military control, at least so far as that his sentence may, by competent military authority, or by the President, be remitted, or may be mitigated — as, for evample, to confinement in a military prison or at a military post. Where the place of confinement is a State or Territorial penitentiary which is within a department command, the commander may legally remit or mitigate the sentence. But the Piesident may limit this authority by excluding such penitentiaries from the department command. (But now the function of remitting the sentences of discharged soldiers confined in penitentiaries is, bv orders, restricted to the President. Paragraph 916, Army Regula- tions of 1895, Circular No. 5 (H. A ), 188S.) Ibid., par, 16. * The several statutes respecting the confinement of enlisted men in the Military Prison relate to the particular establishment located at Port Leavenworth, Kansas, by the Acts of March 8, 1873, (17 Stat, at Large, 583,) and May 31. 1874 (18 ibid., 48). By the Act of March 3, 1895, (27 Stat, at Large, 957,) the prison buildings at Fort Leavenworth wera * See G. O. 44, Eighth Army Corps, 1863; G. C. M. O. 63, Dept. of the Platte, 1873. PUNISHMENTS. 18? oner.'" Such imprisonment is regulated by the statutes creating the Military Prison, and by the standing orders of the War Department in re- spect to the confinement of such prisoners at military posts;' and (cVby L- simple confinement, as a " garrison prisoner,"' in the guard-house at a Confinement at Hard Labor. — This form of confinement is that usually imposed as a punishment of enlisted men. The kind and amount of hard labor required are regulated by General Orders of the War Department.' Confinement with Ball and Chain. — This punishment, although autho- rized as to enlisted men by custom of service, is imposed only in extreme cases, as where the place of confinement is insecure, or where escape is / j / feared. In a sentence imposing this^^orm^ofpunishment the weight of / ^'^ the ball, the' ' 'Jeingtir oi'^ the chai^etc^, should be e^^^sly set forth"Tnn;he / sentence. Solitary Confinement. — This punishment, long recognized by custom of service, is now expressly autliorized, in the order of the President prescrib- ing limits of punishment, by way of substitution for forfeiture of pay or — ^ , confinement at hard labor, subject, however, to the restriction that "it V ^'"''^■^ *' shall not exceed foarte^davs at one time, nor be re peat ed until fourteen ''^ T -mi i.wHii., II illl K l irT Tl- IIII M m^illBI II IIIIIIIIIIIBI I I .. . ' -- — ^''^ rw..,B - ^ ^ y days have elapsed, and shall not exceed eisrhty-four days in one year." ' "^^ ., .. v \i^ M.iii lii rtur* ' I iii y Nni i ii. ir- <^^«^. ^ ^ . ^^ — ji-.>.. — -.>• ~.r-=.- ^,^«.«»^ ^M*^ y\^f^lKn Tcnas been seen tnara sentence imposing confinement must be specific t/'t , as to the duration of the imprisonment,' and as to the character of the con- ' *^" '^ finement imposed, as solitary coufiuement, confinement at hard labor," or transferred to the Department of Justice, and tlie military prison eo nomine was discon- tinued. Prisoners of the class formerly sentenced to periods of confinement at the Military Prison are now sentenced to impiisoument at such military posts as may be des- ignated by the reviewing authority, and are subject to such statutory or executive regulations as may be enacted by Congress or published by the President. ' See Gen. Orders 55, A. G. O., of 1895, for rules fixing the status of these classes of prisoners. ^ See Gen. Orders No. 55, A. G. O., 1895. ' Ibid. * See par. 16, Gen. Orders No. 55, War Dept., 1895. " Manual foi- Courts-marlial, 50, par. 8; ibid., 70, par. 3. ^ Ibid., 62, Art. VII. Held that a sentence of two months' confinement, which prescribed that the confinement for two days out of every three should be solitary, was unauthorized as transcending the proportion fixed in the order of the President establish- ing limits of punishment ; such sentence in fact requiring that the confinement should be solitary for forty A&ya out of sixty, while the order authorizes but eighty four days of solitary confinement in an entire year. Dig J. A. Gen., 708. ' A sentence which, in imposing confinement (or imprisonment — the two terms being practically synonymous in sentences of courts martial), fails clearly to indicate how long the Siime is to continue is irregular and inoperative. Such a sentence should be ■disapproved by llie reviewing authority unless it can be procured to be corrected by a reassembling of the court for Ihe purpose. Dig. .J. A. Gen., 439, par. 1. * Where an officer or soldier is sentenced merely to a term of confinement without the addilion of " I'ard labor," while he may properly be required to perform the ordinary domestic or police work directed by the sanitary regulations of the prison, he cannot properly be put to unusual labor of a severe and continuous character. Thus held that to require a soldier sentenced simply to lie eonfined, and confined accordingly at Alca- traz Prison, to work daily at blu'-ting and quarrying rock was adding to the ■punishment, and therefore unauthorized. 'I'o a prwper execuiion, however, of a sentence of confine- 188 MILITARY LAW. on bread-and -water diet, and the like; a sentence awarded under the 97th Article of War should also be specific as to the place where the sentence is to be executed, as at a State prison or penitentiary; although the particular prison or penitentiary, however, need not be designated or named in the sentence;' in which it would be proper to use the words "at such place as the reviewing authority may direct," leaving it to the reviewing ofBcer to designate a lawful place of confinement in which the sentence imposed may be executed." Confinement beyond Expiration of Sentence. — It is now established by a long series of precedents^that a general jconrt-martial is authorized to adjudge, by sentence, a term of imprisonment to extend beyond the end of thie pendingterm°sOiilIstm ent of the soldier, or beyond his legal period of service. Thus, for example, where the term of the enlistment of the accused has still a year to run, the court — the gravity of the ofEense justify- ing it — may sentence him to an imprisonment for two years or longer ; so it may sentence him to be dishonorably discharged (thus itself discontinuing his period of service) and then confined for a designated term. And such sentences may be executed with the same legality as any other sentences of imprisonment. In the former case the soldier will not be entitled to be released from the confinement at the end of his enlistment, nor in the latter will he become so entitled upon the execution of the discharge. In each case, upon the determination of the enlistment or service, the party continues to be held under his sentence not as a soldier but as a civilian United States convict. ° Execution of Sentence. — The old rule that the term of a confinement (of so many months, years, etc.) imposed by sentence of court-martial com- menced on the day on which the prisoner was delivered to the proper ofQcer ment a secure keeping of the person is of course essential. Where, therefore, it is not possible otherwise to prevent a prisoner's escape or to prevent violence on his part, lie may be ironed without adding to the punishment. But such exceptional restraint can- not legally be imposed except where thus necessary. Dig. J. A. Gen., 441, par. 7. It is not adding to the punishment, in executing a sentence of confinement, to require the prisoner to perform work prescribed for prisoners of his class by the statute law. Thus persons sentenced to imprisonment at the Military Piison at Leavenworth may legally be employed in the labor or at- the trades indicated by Sec. 1351, Eev. Sts. iMd.,443, par. 8. ' In imposing a sentence of confinement at a military prison, the court should properly add " at such prison as the proper authority may designate," or in words to that effect.* To direct that the place of confinement be designated by an officer inferior to the con- vening authority is irregular and improper. Ibid., 439, par. 2. ' Dig. J. A. Gen., 440, par. 3. "Where the approval of a sentence of confinement in a case of a soldier, in which proceedings had been duly commenced pending his term of enlistment, was not promulgated till after such term had actually expired, but no dis- charge hud been given to the soldier before promulgation, held that it would be legal ta subject him to the confinement adjudged by the sentence. Ibid. * It is not adding to the punishment, and is authorized at military law, for the commander who ordered the original commitment, or his proper superior, to change the place of confinement of a prisoner, if such a change is required by the exigencies of the service, provided that no more severe species of conflnement than that contemplated in the sentence is enforced after the transfer. Ibid., 443, par. 9. PUNISHMENTS. 189 — as the ofBcer in charge of the prison or commanding the post — to be con- fined according to the seiitence, having been found inconvenient in practice, there was substituted for it, by General Order 31, Hdqrs. of the Army, of 1870, the rule that " the confinement shall be considered as commencing at the date of the promulgation of the sentence in orders." This rule being more favorable to prisoners than the old one, its authority is not known to have ever been qaestioned.' A sentence of confinement is executed by sending the party under a proper guard to the prison or other place of confinement duly designated, and at the same time transmitting to the officer there in charge or command a copy of the order approving the sentence and ordering the execution, together with such other papers as are required to exhibit the status of the soldier." The duty of a post commander with regard to the holding and restraint of a prisoner, sentenced to be confined at'the post, is not affected by the fact that the prisoner was adjudged by the same sentence to be dishonorably dis- charged and has been discharged accordingly. The amenability to prison dilcipfflte '''contiiiue's'''3!uring theterm of the confinement; althpagh, except ^^~J:lL^-j-^^J^i-^?^%— "■ ^SL g-'T- jP-^'is,^ ^^^ prisoiiej caianot legally be^OTongnt to trial by co iirt-martial^Jo^rnigsondact dur;ing_ s.ufiji term. ° .. ""STprisoner not expressly required by his sentence to be confined in irons cannot legally be subjected to such form of confinement except where there is sufficient ground to appreheud serious violence on his part or an attempt 1 Dig. J. A. Gen., 441, par. 5. ' Dig J. A. Gen., 439, par. 2. Where a soldier -wliile undergoing a sentence of confine, ment is brought to trial for a further offense, and, on conviction, is sentenced to a further terra of imprisonment, the punishment thus adjudged is cumulative upon that pending, and its execution will properly commence at the date when the pending con- finement terminates, whether by expiration of time or by remission. To render a pun- ishment thus cumulative, it is not required that it should be designated as such by the court in the sentence. Ibid., 444, par. 15. Where a soldier was at two sui.'cessive trials tried for separate offenses and was sen- tenced upon the first trial to dishonorable discharge and imprisonment, and upon the second to furtlier imprisonment, and the two sentences were approved and promul- gated in orders bearing the sain'e date, foeld that, as the law does not recognize fractious of a day, these sentences were to be regarded as having gone into operation at the Siime moment and taken effect as one sentence, so that the execution of the dishonorable dis- charge imposed by the former sentence did not affect the enforcement of the pimish- meni of confinement impo.sed by the latter sentence, but that the same was legally enforceable as cumulative or rather continuing upon the term of confinement imposed by the former sentence. Ibid., par. 16. 'Ibid., 44,^, par. 32. See, also. Sec. 1361, Rev. Sis. Where a deserter under sen- tence of confinement escaped, re-enlisted, deserted from his second enlistment, and, upon arrest, was again sentenced to confinement, held that he was legally liable to be subjected to both terms of confinement, the second as a cumulative punishment upon the first. Ibid., 446, par. 24. A remission of part of a sentence of confinement has the effect of leaving the reduced sentence as though it were the original, and the prisoner will be entitled to the time allowance for good conduct precisely as if the original term had not been reduced. Ibid., par. 35. ^^M^-y^^ 190 MILITARY LAW. to escape. A mere threat of violence would not ordinarily justify the use of shackles or fetters. ' Fines and Forfeitures." — What has already been said in respect to fines and forfeitures applies equally to commissioned officers and enlisted men. Beprimands. — The punishment of a reprimand is one usually imposed upon commissioned oflQcers only; in rare cases, however, J,t has been imposed upon non-commissioned officers of the _higher grades. When so awarded the reprimand is administered by the reviewing authority, as has been described in the case of a commissioned officer.' ' Dig J. A. Gen., 446, par. 23. See, also, note 5, p. 187, ante. " See the titles Mnea and Fm-feiturea in the article, supra, entitled " Punishments of Commissioned Officers." Detention of Pay. — The detention of pay in the case of enlisted menjyas..3uthorjzed, as a punishment to be inflicted by courts-raartial, by .G. O. 2L,JU- G, ,0.,..of 1891. ^g^ effect of a sentence detaining the whole or a part of the monthly pay of a soldier was to prfl^etif the amount so detained" Irom being paid to the offender- uflTHtiisitischarge. ThTpTacTice was abolished by General Orders No. §5,. A. G. 0., of July 1,9, 1894. ^Seethe \,\\X6 EepHmand, supra. In the British service courts-martial are forbidden to sentence enlisted men to be reprimanded. Simmons, 7th ed., 58 ; Manual for Courts- martial, 270. CHAPTEK X. THE RECORD. General Character. — The Articles of War reqaire all courts-martial to make and keep formal records of their proceedings, and the Army Regula- tions and the official Manual for Courts-martial contain specific directions as to the form and substance of these records in certain parbiculars.' By a gradual process of development the record of a court-martial has come to be, in our practice, a full report or recital of the details of the trial in each case, including all the testimony introduced, together with the pleas, argu- ments, and statements submitted to the court during the progress of the trial, in which respect it differs from a judicial record in the civil procedure." The legal record of a court-martial is that record which is finally approved and adopted by the court as a body, and authenticated by the signatures of its president and judge-advocate. The record is kept, that is, the proceedings are recorded, by the judge-advocate, but the court as a whole is responsible for it, and the instrument which it approves as such is its record, however the same may have been made up. It is immaterial to the sufficiency of a record whether the same was kept or written by the judge-advocate or by a clerk.' Contents of the Record; General Rule. — In connection with the prep- aration of the record, tbe question arises as to what portions of the proceedings shall be incorporated in the record and what portion, if any, shall be excluded. In reply it m3.,v^be_ said tha tj as a general rule, jvery- thing which .t3.kpj. place ^m__ open court goes Jipon the recordjjind that no deliberations, discusjigns, or_other proceedin gs had in closed court are ' Big. J. A. Gen., 689, par. 1 ;■ llStli and lUtb Arlicles of War ; Section 1199, Rev. Stat.; paragraphs 934-937. A. R. 1895; Manual for Courts-martial, pp. 65, 66. 2 Altliongli its prooeeedings are required to be fully recorded, a court-inarlial is not a court of record in the legal acceptation of the term. A court-marl in 1 record isacomplele narrative of the proceeding-?, in a, particular case, from beginning to end, and includes not only the acts of the court, but the notion of the reviewing autborilj' as well. The record in an action at law, civil or criminal, is much less full than that required to be kept by a military tribunal ; part of it consists in en1ri Ibid., 670, par. 1. ^ Ibid. ' The word " approved " employed by the President in passing upon a sentence of dismissal lield to be substantially equivalent to " confirmed," the word used in the Article. In practice the two words are used indifferently in this connection. Ibid., 128, par. 1. The Article does not require that the confirmation of the sentence shall be signed by the President, nor does it prescribe any form in which the confirmation shall be declared. Held, therefore, that a written approval of a sentence of dismissal authenticated by the signature of the Secretary of War or expressed to be by his order was a sufficient con- firmation within the Article ; the case being deemed to be governed by the well- established principle that where, to give effect to an executive proceeding, the personal signature of the President is not made essential by law, that of the head of the depart- ment to which the subject belongs shall be sufficient for the purpose ; the assent of the President to his order or direction being presumed, and his act being deemed in law the act of the President whom he represents.* Ibid., par. 2. It is a fundamental general principle of our public law that all acts done by and * This view has been sustained by an opinion of the Attorney-Keneral of June 6, 1877, (15 Opins., 390,) and by a report of the Judiciary Committee of the Senate of March 3, 1879, report No. 868, Forty-flfth Confrress, third session. (From this report, indeed, two members of the committee dissented in a subsequent report of April 7, 1879, Mis. Doo. No. 21, Forty-sixth Congress, first session.) \-M- A' THE BEVIEWISa AUTHORITY. 201 Effect of Approval and Disapproval. — While approval gives life and operation to proceedings or sentence, disapproval, on the other hand, quite nullifies the same. ' A disapproval of the proceedings of a court-martial by the legal reviewing authority is not a mere expression of disapprobation, but a final determinate act putting an end to such proceedings in the particular case, and rendering them entirely nugatory and inoperative; and the legal effect of a disapproval is the same whether or not the officer disapproving is directions emanating from the heads of the executive departments in the course of their administrative duties are in law the acts and directions of the President, in whom is reposed, by the Constitution the entire executive power of the Government, and whom the heads of departments (except where specially invested by Congress with distinctive authority of their own) simply act for and represent.* Tlius all orders made and issued by the Secretary of War in connection with the government and regulation of the military establishment — such as orders convening general courts-martial, or approving and directing the execution of the sentences or otherwise acting upon the proceedings of sucli courts,! or miligating or wholly or partially remitting punishments imposed thereby; or orders summarily dismissing officers, or dropping for desertion, retiring or accepting the resignation of, officers; or orders establishing military reservations, or promulgating army regulations, etc. — are to be regarded as the orders and acts of the President, whom the Secretary of War represents in the administration of his department ; the same being presumed to be made and issued with the knowledge and by the direction of the President, whether or not he be referred to therein as having directed or commanded the same ; and being equally as valid and operative as if signed by the hnnd of the President himself.^ Dig. J. A. Gen., 689, par. 1. This subject has been more recently considered by the United States Supreme Court in a succession of cases (Runkle m U. 8., 132 U. S.; 543; U. S. vs. Page, 137 U. S., 673; U. S. IIS. Fletcher, 148 U. S., 84), the effect of which is that a statement of approval of a sentence of dismissal authenticated by the Secretary of War is legally sufficient, provided that it appear, by clear presumption therefrom, that the proceedings have actually been submitted to the President. Ibid., par. 3, note. In an opinion of the Attorney General of April 1, 1879, (16 Opins., 298,) it was held that a confirmation of a sentence of dismissal of an officer, though irregularly and unduly authenticated, would be ratified by an appointment by the President of another officer to fill the supposed vacancy, and that the appointment thus made would be valid and operative. Ibid. ' The 104th Article is properly to be complied with by an approval of the sentence (where the same is approved in fact) by " the officer ordering the court," etc., although, as in a case of a sentence of dismissal in time of peace, lie may not be empowered fiiiall}' to confirm and .^ive efEect to the sentence. His approval is required as showing that he does not, as he is authorized to do, disapprove. Dig. J. A. Gen., 126, par. 1. The approval of the sentence indicated by this Article should properly be of a formal character. An indorsement; signed by the commander, of the single word " Approved," — a form not unfreqn"i''tly employed during the late war, — thousih, strictly, sutiicient in law. is irregular am 'jjectionable. So held that a mere statement written in or upon the proceedings, in transmitting them to the President, that the record was "forwarded " for the action of superior authority, was insufficient as not implying the requisite approval according to the Article. And similarly held of a mere recommendation that the pro- ceedings be approved by such authority. Ibid., 2. Held that a department commander while absent from his headquarters on an expedition against Indians could not legally depute a stafE or other officer to act for him, in approving the sentences of courts-martial previously duly convened by him. Ibid., par. 4. * Locking;ton vs. Smitb, Peters C. C, 472; U. S. vs. Benner. 1 Baldwin, 238; Wilcox vs. Jackson, 13 Peters, 498; U. S. vs. Eliason, 16 id , 303 ; The Conflsoation Cases. 20 Wallace. 109 ; U S. to, Webster, Daveis, 69; U S. vs. Freeman, 1 Wood. & Minor, 51 ; Lockington's Case, Brightly, 288; U. s. vs. Cutter, S Curtis. 617; Hickev vs. Huse, .56 Maine, 495 ; McCall's Case, 5 Philad., 289; In Matter of Spangler, 11 Mich., 322; 1 Opins. Att.-Gen., 380; 6 id., 326, 587, 682; 7 id., 453, 726; 9 id., 463, 465; 11 id., 398; 13 id., 5, H id.. 453. t But see 106th Article. % See Wilcox us Jackson. 13 Peters, 498; U. S. vs. Eliason, 16 id., 302; Hickey vs. Huse, 56 Maine; 495; 2 Opins. Au.-Gen., 07; ]3 id., 6; 14 id., 463; 15 id,, 290, 463; G, O. 35, W. D., 1850. 202 MILITARY LAW. authorized finally to confirm the sentence.' Bat to be thus operative a disapproval should be express.' The effect of the entire disapproval of a conviction or sentence is not merely to annul the same as such, but also to prevent the accruing of any disability, forfeiture, etc., which would have been incidental upon an approval.' A disapproval of a conviction of a par- ti cular offense als o operat es to nullify th e_convif;tion of iljPy_IgS£Llll£i!Jl^'^'^ offense involved i n the con viction_ofJ he specific offense charg ed..' While there are numerous defects, errors, or omissions which may well be deemed sufiScient to induce, on the part of the reviewing authority, a disapproval of the proceedings or sentence of a court-martial, there are comparatively few which should be regarded as fatal to the legal validity of the same. Where the courts as shown by its authentic record, was legall y constituted aii3"'cBffiposed and had jurisdiction ofjhe case, and jts. sentence is a_legaljone, i.e., one by which a legal punishment is adjudged the.accused, 8L defect in its proceedings which does not amount to_a^violatiaiuiiLor_a^ f ailure to c6 mply""wrtl~ar statutory 'requirement should, not in, general be regarded as affecting the validity in law of the proceedings or sentence.* Power of Reviewing Authority. — The authority of a military com- mander as reviewing officer is limited to taking action upon the proceedings and sentence (if any) by approving or disapproving the same, wholly or in part, and directing the execution of the sentence, and to the incidental f auction, as conferred by Article 112, of pardoning or mitigating the punish- ments which have been approved by him. Action not included within these powers he is not authorized to take. Thus he cannot himself correct the record of the court by striking outany part of jtKe finding dif'sentence, "or otherwise, nor ca n^K ln"genBraI"c nangeTEe jrfer in which, dJffatgBt P.gIJj'1- ties are adjudged^bv the court to be suffered, nor can.Jifi„add.toutTT^ pi^pigb- ment inipo sed by the court though deemedjby him guite inadequate to the offense.' 1 Dig. J. A. Gen., 671, par. 2. ' See 16 Opins. Ait.-Geu., 312, where it Is remarked that it is not a legal disapproval of a conviction or sentence for the original reviewing officer, in forwarding the pro- ceedings for the action of superior authority, to indorse upon the same an opinion to the eflfect tlial the finding is not sustained by the evidence. ' Dig. J. A. Gen., 671, par. 2. As frequently remarljed in the opinions of the Judge- Advocate General, I be mere absence of an approval is not a disapproval, nor can a mere reference of the proceedings to a superior without words of approval operate as a dis- approval of the proceedings or sentence.* Ibid. A reviewing officer cannot disapprove a sentence and then proceed to mitigate or commute the punishment, since, upon the disapproval, there is nothing left in the case upon which any such action can be based. IMd. It is quite immaterial to the legal effect of a disapproval whether any reasons are given therefor, or whether the reasons given are well founded in fact or sufficient ia law. Ibid. ■> Dig. J. A. Gen., 334. ^ Ibid., 672, par. 3. * A disapproval of a sentence by the proper reviewing authority is " tantamount to an acquittal by the coiut." 13 Opins. Att.-Gen., 460. THE REVIEWING AUTHOBITT. 203 A reviewing officer, however, may in general specify the reasons for the action taken by him without transcending his authority. Thus where a department commander disapproved a sentence as inadequate, and in stating his grounds for so doing commented unfavorably upon the conduct of the accused as indicated by the evidence, it has been held that such comments were a legitimate explanation of the action taken and did not constitute an adding to the punishment.' "Where the re viewing officer deems that the proceedings of the court are in any material particular erroneous or ill advised, his proper course in general will be to reconvene the court for the purpose of having the defect corrected, at the same time furnishing it with the grounds of his opinion. Thus jf he regards the s entence iaadequate, he should, in reassembling the \J, court fnr a. rpvisinp pf t he same, state th e reasons why he considers it to be •disproportionate to the amounj.ot criminality _involvedjft_the^ofEense. But although he cannq£_compel_the coujt iD_adopt his views in regard to the | supposed defect, he may injj^praper case express his formal disapprobation of their neglegt-to-do-so.' ^ In acting upon the proceedings of a court-martial, the legal reviewing officer acts partly in a Judicial and partly in a ministerial capacity. He " decides " and " orders," and the due exercise of his proper functions cannot be revised by superior military authority. Thus a reviewing officer w ho J has duly acted upon a sentence and promulgated his action in orders^ can- |/- nor^lse-seqiurfgd ll^y^a Tiigher commau^^7'oF~by the Secretary of War, I to rev^ oke sn cji^^tionT^If the sentence be deemed Jinwarranted or exces- sive, relief may be extended^ through. the. power of pardon or remission.^ The reviewing authority should properly authenticate the action taken by him in any case by subscribing in his own hand (adding his rank and command, as indicating his legal authority to act) the official statement of the same as written in or upon the record. Impressing the signature by means of a stamp is not favored.' ' Dig. J. A. Gen., 673. par. 3. In passing upon the findings and sentence of a court- martial, the reviewing officer will properly attach special weight to its conclusions where the testimony has been of a conflicting character. This for the reason that, having tlie witne-sses before it in person, the court was qualified to judge, from their manner in connection with their statements, as to the proper measure of credibility to be attached to tlicm individually.* ' Ibid., 673, par. 4. Thus where a court-martial, on being reconvened with a view •of giving It an opportunity to modify a sentence manifestly too lenient for the ofEense found, ilecidi d to adhere to the sentence as adjudged, and, on being again reassembled to consider further grounds presented by the reviewing commander for the infliction of a severer penalty, again declined to increase the punishment, held that it was within the authority of the reviewing officer, and would be no more than proper and dignified for him in taking final action upon the case, to reflect upon the refusal of the court as ill-judged, and as having the effect to impair the discipline and prejudice the interests of the military service. Ihid. See, also, the title Proceedings in Bemsion, p. 159, ante. » Dig. J. A. Gen., 676, par. 17. " Ibid. , 674, par. 6. * See the early ease of Capt. Weisner, Am Archiv., 5th Series, vol. ii, p. 895, So civil courts will rarely interfere, except in cases of clear iniustice, •with verdicts of juries which have turned upon the .credibility of witnesses. Wright vs. State, 34 Ga., 110 ; Whitten vs. State, 47 id., 39?. 204 MILITAUr LAW. -4-Dulitary commander cannot of course del egate to an inferior or other officer his functionN as reriemr^ authority_of_ proceedings or sentences of courts-martial as conferred by the 104th or 109th Article of War or other statute. ISTor can he regularly authorize a staff or otherofficer__tg write and Bubscribe for him Ihe^acHonPBy way ol approval, disapproval, etc., which he has decided ToTake upon such proceedings.' "When the final action of the reviewing officer has been published in orders to the command and notified to the accused, his power of approval and disapproval in the case is exhausted and his action cannot be recalled or modified.' THE PARDONING POWER. V,. EEIIISSION, MITIGATION", AND C Oil MUTATION. V The Pardoning Power. — The general power to pardon offenses aga inst / -the United States is vested by tbe_Constitution in the Ereaid.en t. As an incident of his power to pardon, the Executive may, by a s^Uarex^ise of iilRme ppY i Tnif;i gn,f.R anrl, incasesjjudiiefe-from-the nature of the punishment imposed mitigatifla,-as_a]ichj_ is impossible, his ckmency mayl;ake a form preseirtty^TO-he describedj_callejd cqnmu^^ In addition to the power vested in the President by the Constitution, a qualified form of the pardon- ', Dig. J. A. Geu., 674, par. 7. An approval purporting to be subscribed by the corn- man tier " by " his staff judge-advocate or assistant adjutant-general would be open to question and quite irregular ; as would also be any action subscribed by such an officer purporling to be taken " in tlie absence and by the direclion of" the commander. Ibid. ^ Ibid., 675, piir, 13. Where a department commander applied to the War Depart- ment for the return of the proceedings of a case in order that he might modify his action thereon, held that, as the same liad been formally promulgated in orders and had duly taken effect, the power of the reviewing officer over the case was exhausted, and the applicatioQ could not legnlly be complied with. Ibid. Action taken by a reviewing officer upon the proceedings and sentence of a court- martial may be recalled and modified before it is published and the party to be affected is duly notified of the same. After such notice the action is beyond recall. The power of remission indeed may be exercised so long as any part of the punishment imposed remains unexecuted. But when the final approval "of the sentence (or other action taken) lias been once officially communicated to the accused, the function and authority, of the reviewing officer, as such, over and respecting the same is exhausted and cannot be revived. An approval cannot then be substituted for a disapproval, or i)tce versa. Jbid., 674, par. 8. A sentence to forfeit certain pay was approved, and sucti approval promulg.-ited in orders of Eeb. 18, 1865. On March lOt.h following, the reviewing officer "recon- sidered " his action and by another order disapproved the sentence, and this order was also promulgated. Held that the latter order was of no effect. The first order executed the forfeiture, making the amount forfeited public money, and exhausted the power of the reviewing authority. Ibid., 676, par. 14. But where, after the reviewing commander had approved a sentence in General Orders and the court had been dissolved, it was discovered that there was a fatal defect in the proceedings in that they did not show that the court or judge-advocate had been sworn in the case, 7ieM that the commander would properly issue a supplemental order declaring the proceedings a nullity and the original order inoperative and withdrawn oa account of the defect. ^Ibid., par. 15. Where the convening commander dissolves a court pending a trial, his power as to that court is exhausted and he cannot revive it as such. He may reconvene the same members as a court-martial, but it will be another and distinct tribunal. Ibid., par. 16. TEE BEVIBWING AUTHOBITT. 205 ing power, extending to the remission or mitigation of sentences imposed by the several military tribunals, is conferred by statute upon certain military commanders who are authorized by law to approve and carry into effect the sentences of courts-martial.' i^. The President is empowered by the Constitution" "to grant pardons for offenses against the United States "; and a pardon, like a deed, in order to take effect must be delivered to and accepted by the party to whom it is granted.' Thus there can be no pardon of a deceased ofl&cer or soldier; and that the pardon is asked by the party's widow or heir, who is to be pecuni- arily benefited thereby, cannot affect the principle.' ->■ ,..„ Effects of Pardon. — It is the effect of the exercise of the pardoning power by the President to relieve the party from all punishment remaining to be suffered. "Where, therefore, he remits the unexecuted portion of a term of imprisonment, an additional penalty which, by the express terms of the sentence, was to be incurred at the end of the adjudged term, as a dis- ' The pardon or remission of the unexpired punishments of soldiers, where favored by the Judge- Advocate General, has been recommended on grounds of which tbe principal were the following : that the soldier was a minor at enlistment ; that he was' enlisted under false representations as to the kind of service which would be required of him, made by the recruiting oificer in disregard of par. 916, Army Regulations ; that he en- listed as a mere recruit, did not have the Articles of War read to him, and had no proper comprehension of the gravity of his offense ; that he did not comprehend his military obligations on account of an imperfect knowledge of the English language ; that he was an Indian scout unacquainted with our language or with the Articles of War ; that his offense was wholly or iu part induced by harsh or injudicious treatment by a military superior ; that excessive or unreasonable duty had been required of him, or that he had been put on duty (as a guard or sentinel, for example) when unfit for the same on account of illness or partial intoxication ; that his offense was committed under a provo- cation, or was accompanied by circumstances of extenuation, to which the court had not given due weight ; that prior to his trial and sentence he had been adequately dis- ciplined by his commander ; that he had been improperly held in irons, or handcuffed, , pending the trial ; that his confinement had so seriously impaired his health that if con- tinued it would endanger his life ; that an unreasonable time was allowed to elapse between his arrest and trial, or after trial and before the approval and promulgation of the sentence, These and other grounds have been taken into consideration, sometimes alone, and sometimes in cnmblnalion or in connection with such further favorable cir- cumstances as voluntary return in case of desertion, previous good character, good conduct under sentence, etc. In cases of ofBcers, the principal grounds for recom- mending pardon or remission have been a previous good reeord for efficiency in the service, especially in time of war, a higli personal character or reputation, and nn appar- ent absence of a fraudulent or criminal intent in the offense as committed. Dig. J. A. Gen., 554, par. 11, , In cases in which military offenders — such as deserters from the army remaining at large, or officers or soldiers who have escaped from military custody while in arrest or under sentence — have applied from their places of refuge for executive pardons, it has almost invariably been atfTOseii by the .Judge-Advocate General that the applicntion be not entertained till the fugitive from justice should return and .surrender himself to the military authorities to stand his trial or abide by his sentence. TMd., 555, par. 12, 2 Article 11, Sec. 2, clause 1. 3 U. S. vs. Wilson, 7 Pet., 150; In the Matter of De Puy, 3 Benedict, 307 ; 6 Opin. Att.-Gen.,403, * Dig. J. A. Gen., 551, par. 1. So where, in a case of an officer who hnd died wliile under a sentence of suspension from rank, a pardon was asked for the purpose of having the stigma removed from his record in the service, Tield that the case was not one in which the pardoning power could be exercised. Ibid. 206 MILITARY LAW. -^ honorable discharge from the service, cannot he enforced. The pardon having intervened, the sentence ceases to have any efEect whatever in law, and the soldier — the remainder of his service being regular — must be honorably discharged.' It is the effect of a full pardon, therefore, (other- wise of a mere remission of the punishment — see Eemission) to remove all penal consequences, except of course executed penalties and all disabilities attached by statute or army regulation to the offense or to the conviction or sentence." Continuing Punishments. — -The pardoning power extends to continuing punishments, or punishments which are never fully executed, — remitting in each case the punishment from and after the taking efEect of the pardon. Of this class is the punishment of disqualification to hold military or public office, as also that of the losing of or reduction in " files " (or relative rank) .^-f^, in the list of officers of the offender's grade; these, being continuing punish- Vj •■ - 1 ments, may be put an end to at any time by a remission by the pardoning power. ° " I Conditional Pardons. — It is settled that a pardon may be conditional — ~-^/may be gjcattted-upfliLA.esndition precedent or subsequent.' Thus where ' Dig. J. A. Geii., 553, par. 5. ^ Ibid., 551, par. 2. Thus the pardon of a convicted deserter will relieve him from the loss of the rights of citizenship attached by tlie Act of March 3, 1865, (Sees. 1996, 1998, Rev. Sts.,) to a conviction of desertion.* But a pardon by the Presdent will be ineffectual of course to remove a disqualification incurred by the offender under a State ofoflltp 'I' lUd., 13 Opins. At. Gen. 81 ; Ex parte Garland, 4 "Wallace, 380. ' Dig. J. A. Gen., 553, par. 6 ; 12 Opin. At t -Gen., 547. A pardon by the President will reach and remove a continuins; disqualification or disability incident upon the com- mission of an offense against the United Slates, or upon a conviction by a United States court or a court-martial, but not a disqualification incurred (us upon conviction of grand larceny) under the laws of a State. Ibid., 557, par. 17. ■• The language of the constitution is such that the power of the President to pardon conditionally is not one of inference, but is conferred in terms, the language being "to grant reprieves and piirdons," which includes absolute as well as conditional pardons. Under this power the President can grant a conditional pardon to a person under sen- tence of death, offering to commute that punishment into an imprisonmeut for life. If this is accepted by the'convict, he has no right to contend that the pardon is absolute and tlie condition of it void. Ex parte "Wells, 18 How., 307; Osborn m. U. S., 91 U. S., 474 ; U S. vs. "Wilson, 7 Pet.. 150. "When a pardon is granted with coiuiilions annexed, the conditions must be performed before the pardon is of any effect. "Waring vs. U. S., 7 C. Cls. R . 501. One who rlaims the benefit of a pardon must be held to strict com- pliance with its conditions. Haym m. U. S., 7 C. Cls. R., 443 ; Scott vs. U. S., 8 ibid., 457. The condition annexed to a pardon must not be impossible, unusual, or illegal; but it m.ay, with the consent of the prisoner, be any punishment recognized by the sfatiites, or b}' the common law as enforced by the State. Lee vs. Murphy, 22 Grat. (Va.\ 789. Tbe President may, also, by an exercise of the pardoning power, mitigate or com- mute a nimi^hment imposed by any court of the United States. Ex parte 'WeWs, 18 How., 307; /n. re Ross, 140 U. S., 4.53. In mitigating the sentence of a naval court- martial, the President may substitute a suspension for a term of years without pay for an absolute dismissal from the sei-vice, as suspension is but an inferior degree of the same punishment. 1 Opin. Att.-Gen,, 433. * S Opins. Atf.-Gen., 284 ; 9 M.., 47S; 14 id., 124. And see People vt. Bowen, 43 Cal., 439. That this disability can attach only upon a conviction, see the 47th Article in the Chapter entitled The AaTjOLEa OP War, and authorities cited in note. t 7 Opins. Att.-Gen., T60. TEE EEVIEWINQ AUTEOEITT. 207 the President, by his proclamation of March 11, 1865, granted a pardon to all deserters " on condition that " they duly returned (within a certain time stated) to their regiments, etc., and served the remainder of their original terms, and in addition a period equal to the time lost by desertion, held that a soldier who duly returned under this proclamation, but, after remain- ing with his regiment a portion of the period indicated, abandoned the ser- vice and went to his home, was liable (the legal period of limitation fixed by the 103d Article of "War not having expired) to be brought to trial for his original desertion; the condition suhsequent upon which his pardon for the sa me had been exten ded not having been performed.' Constructive Pardons. — While to restore to or place upon duty an officer or soldier when under arrest or~charges on account of an alleged offense would not probably in this co untry , to the same ^xtent as in England, be regarded as operating asacondojiation of Jhe offense, the promotion of an officer while under arrest on charges has been viewed as a constructive pardon of the ofiense or offenses on account ofjwhich he hasJl}e.en arrested. But it has been held that such a promotion could not operate as a pardon of^ other offenses committed by him, of the commision of which no knowledge was had by the Executive at the date of the promotion.'' Pardon not Eetroactive. — A pardon i s not retroactive. It cannot remit an executed punishment, or restore an_executed forfeiture resulting either byo£eration of law or sentence^ It cannot, therefore, restore, the forfeitures incident upoS" desertion. Further, it cannot modify past history, or reverse or alter the facts of a completed record. Prom and after the taking effect of a pardon the recipient is innocent in law as to any subsequent contingen- cies, but the pardon does not annihilate the fact that he was guility of the offense. The pardon indeed proceeds upon the theory that the party was ^ ' Dig. J. A. Gen.. 554. pMi-. 9. Held that a •wilUdrawiil by a department commauder of a pending chiirge against a soldier, upon bis giving a pledge to abstain in the futnre from the conduct wbieh was the subject of the charge, did not operate as a pardon and could not be pleaded as such. Had it been done by an order of the President, it could have had no further operation than as a gMasj'-conditional pardon, leaving the charge legally renewable upon a repetilinn of the offense. Ibid., 557, par. 18. ' ibid., 553, par. 7. See Clode, Mil Foi-ces of the Crown, vol. i., p. 173 ; Prendergast, 244-5, in connection with the cases cited of Sir Walter Raleigli, Lord Lucan, Capt.' Achison, etc. Held that an order, is.sued by competent authority at about the close of the war (December, 1805), by which a military prisoner convicted of larceny by court-martial was simply released, before the end of his term, from a Stale penitentiary, was an act of constructive pardon, operaiing to remit the unexecuted portion of the sentence; and that a formal pardon by the Pres^ident was not essential to enable the parly to exercise the right of suffrage in a State where a conviction of larceny, unpardoned, was a disqualifi- cation. Dig. J. A. Gen , 557, par. 19. - While orderiuu- or authorizing an officer or soldier when under sentence to exercise a command or perform any other duty inconsistent with the continued execution of his sentence has been viewed as a constructive pardon, held that to allow an officer while under a sentence of siispension from rank to perform certain slight duties in chsing hia accounts with the United States could not be regarded as having any such efiect Die- J. A. Gen., 553, par. 8 ; 6 Opin. Att.-Gen., 74. ' ^' 208 MILITARY LAW. gailty in fact. The asking for it is an admission of guilt, and the granting of it is a recognition of the^fact of gnilt.' Source of Power to Pardon, Mitigate, etc. — Tlie power to remit or mitigate sentences awarded by military tribunals is conferred, in express terms, by the 112th Article of War, which provides that " every officer who is authorized to order a general court-martial shall have power to pardon or mitigate any punishment adjudged by it except the punishment of death or of .dismissal of an officer. Every officer commanding a regiment or garrison in which a regimental or garrison court-martial may be held shall have power to pardon or mitigate any punishment which such court may adjudge.' Sentences of Death and Dismissal.— The power to remit or co.mmttte sen- -t^*^^ tences of ^ea^A and -tZismmoZ^ is reserved by tKs_ArJiieIs iOE .tlifi.,President. 1 A military commander cannot exercise _ such power even where, in time of war, liB_ia_authorized to approve and execute the sentence. He may then, however, if he thinks that the sentence should be remitted or commuted, suspend its execution pending the action of the President, to whom it may be submitted with a recommendation to clemency u.nder the authority con- ferred by the following Article: ° " Any officer who has authority to carry into execution the sentence of death or of dismissal of an officer may sus- pend the same until the pleasure of the President shall be known; and in such case he shall immediately transmit to the President a copy of the order of suspension, together with a copy of the proceedings of the court." * Remission. — T he reviewing a uthority, in the^ssrcise of the power con- i ferred upon him by the 112th Article of War, may see fit to refrain from" , carrying tli'e entire sentence into effect, or may relieve theaccused of a por- j tionof £he punishment, imposed in the sentence; ,¥e.ls then said to act by 1 ' Thus held that the Piesident could not by a pardou remove the charge of desertion \ from the record of a former soldier, who had long since hecome a civilian by reason of the muster-out and uon-existeuce of the volunteer army to which he had belonged in the late war ; and that the effect of his pardon would not be to give liim an honorable dis- charge. A pardon would not only not remove a charge of desertion, hut would in fact coiilirm it, and constitute an additional reason for retaining it on the record. And a party cannot by an executive a.ct be discharged from the service unless he is in the service. Dig. J A. Gen., 556, par. 15. See Ex parte Garland, 4 Wallace, 333 ; Knots vs. U. S., 95 U. S., 153. Held (January, 1892) that it was beyond the power of Congress to undo tbe executed legal judgment of a court-martial, and that It could not, therefore, lawfully authorize the Presiiient or the Secretary of War to pardon or remit a legal sentence of such a court adjudged in 1866 and long since duly and fully executed. Ibid., 557, par. 16. ^ See. also, for a similar power in respect to the sentences of summary courts, sec- tion 2 of the Act of July 27, 1892 (27 Stat, at Large, 277). » Dig. J. A. Geu., 129, par. 1. ■* llith Article of War. An officer suspending the execution of a sentence for the action of the President under this Article should first formally approve the same. Simply to forward the proceedings stating that the sentence has been suspended is incomplete and irregular. If the commander disapproves the sentence, he cannot of course suspend and transmit under this Article, since there remains nothing for the President to act upon. Dig. J. A. Gen., 139, par. 1. Where a case is submitted to the President for his action under this Article, he may approve or disapprove the sentence in whole or in part, and, it approving, may exercise the power of remission or mitigation. lUd., par. 2. THE REVIEWING AUTHOBITT. 209 way of remission. The efEect of remissioa, as a form of clemency, is to cancel the^i^nre sentence where a single form of punishment has been imposed, or a portion of it where the sentence is made up of two or more distinct punishments— forfeiture of pay and confinement, for example — either of which may thus be abated or reduced by way of remission.' Mitigation. — The reviewing authority, in approving the punishment adjudged by the court and ordermg its enlorceinen^is authorized, if ha deems it too- sevefeTT^^gtsdaartpTtrW'th'e'p):^ it in quantity or' quality without changing its species: this is mitigation. Im- prisonrireiitT^Sne^ forfeiture of pay, and suspension are punishments capable of mitigation. As an instance of a mitigation both in quantity and quality, it has been held that a sentence of imprisonment for three years in a peni- tentiary was mitigable to an imprisonment for two years in a military prison." The pardoning power here given is not limitedin its exexfiisejo the moment''^"ffie8^proving of the^ sentencej,but^aj_be employed as long as the_re._,rftiaaiag. any .material -for- its -exercise. Under this Article, as inter- preted by the usage of the service, a department (or army) commander may remit at any time, in his discretion, and for any cause deemed by him to be sufBcient, the unexecuted portion of the sentence of any soldier confined withiu his command under a sentence imposed by a court-martial convened by him or by a predecessor in the command." A punishment cannot be pardoned or mitigated under this Article where it has been once duly executed. Where, however, a sentence has been executed only in part, it may be remitted as to the portion remaining unexecuted.'' ' Remission is a partial exercise of the pardoning power, reliev.ing the person from a ■punishment or the unexecuted portion of a punishment, but not pardoning the offense as such, or removing the disabilities or penal consequences attaching tliereto or to the con- viction. Dig. J. A. Geo., 637, par. 1. Compare Perkins vs. Stevens. 24 Pick., 277; Lee vs. Murphy, 22 Grat., 799; 1 Bish. Cr. L., § 763; 2 Opins. Att.-Gen., 329; 5 Id., 588; %Id., 283-4. 2 Dig. J. A. Gen., 131, par. 5. '^Ibid., 130, par. 4. *IMd., par 3. A military commander vested -with the power of pardon or mitigation under this Article is not authorized to delegate tlie same to an inferior. Thus held that a department commander could not legally authorize a post commauder to remit in part, upon good behavior, the punishment of a soldier, under sentence at the post of the latter, who had been convicted by a areneral court convened and whose proceedings had been acted upon by the former. Ibid., par. 2. Held that it was not a due exercise of the power given by this Article, but irregular and unauthorized, for a post commander to suspend theexeculion of the sentence of a garrison court convened by him, during good behavior on the part of the soldiers sen- tenced. Ibid, 181, par. 6. Such an exercise of clemency would constitute a con- ditional pardon, rm exercise of power vested by the Constitution in the President alone. See the title " Commutation," po«<. A punishment in itself illegal is not capable of mitigation. Thus where a sentence of imprisonment in a penitentiary is not legally authorize'l, it cannot be made valid by mitigating this imprisonment to confinement in a military prison. In such case the latter will be equally invalid and inoperative with the original punishment. Ibid., 132, par. 11. A substitution, for a punishment of dishonorable discharge with loss of all pay and 210 MILITARY LAW. Commutation. — As an exercise of the power to "pardon or mitigate" the sentences of courts-martial operates within the field of the general power to pardon which is vested in the President by the Constitution, the terms of the Article conferring this authority upon military commanders have been strictly construed ; and so where a sentence has been imposed of such character as not to admit of mitigation — death, dismissal, or dishonorable discharge, for example — clemency can only be exercised by way of commu- tation ; that is, by the substitution of another and diiierent punishment for that imposed in the sentence. nnmm.utaf.inn^..ihp.rp.fnrp. , ja a form ^ f nondi- tiqnal pg^rdgp, ' .a-power -vested-ia--thftJ!re sident alone, and not shared w ith the severa l reviewing; authorit'p-s mfint j^m ed in t he 111th and 112th Articles of War.'' allowances due sind to become due, of a puiiisUment of confinement at bard labor at tbe post for one year with forfeiture of ten dollars per mouth for tbe same period, held not a legitimate mitigation. Dig. J. A. Gen., 132, par. 12. Where a sentence of dislionorable discliarge with forfeiture of all pay ami allow- ances and confinement at hard labor for four years was mitigated to confinement for one year with forfeiture of ten dollars per month for the same period, held that the same was regular and legal and not iu coniraveuliou of Circ. No. 2 (H. Q. A.), of 1885. Ibid., par. 13. Dishonorable discharge caimot legally be mitigated to " discharge without a charac- ter." Tlie latter is not a recognized punishment. Ibid., par. 14. "Where a sentence con Manual for Courts-martial (edition of July 11, 1898), 66, par. 7. 5 Acts of June 18, 1898, (30 Stat, at Large, 483 ;) March 2, 1901, (31 ibid., 901.) • Executive Order of March 30, 1898. Gen. Ord. No. 16, A. G. 0., 1898. * The procedure of the Summary Court should be similar to that of the older courts- martial. The charges and speciliciUions should be rtiid ti> the accused, and he be required to plead guilty or not guilty, and the witnesses should be sworn. But the testimony is not set forth in the record. Dig. J. A. Gen., 727, pnr. 13. ' Act of June 18, 1898. (30 Stat, at Large, 483.) The provision of the Act that accused soldiers shall be brought before the Summary Court for trial "within twenty-four hours from the time of their arrest " is not a statute of limitations nor jurisdictional in its character, but directory only — directory upon the officers whose duty it is to bring offenders before the court. The proceedings will thus be legally valid though the accused does not appear for trial within the period specified. So held, in a case of an accused soldier arrested on Saturday, that the court did not by not sitting on Sunday lose jurisdiction; and therefore that it is not necessary that a Summary Court should ever sit on a Sunday. Ibid., 726, par. 10. The provision in the Act in regard to the trial being had within twenty-fours of the arrest being directory only, a trial held after that time is entirely valid. Thus where a soldier, by reason of drunkenness or otherwise, is not in a condition to be tried within that time, his trial may be postponed till he is in such condition. lUd., 727. par. 11. The Summary Court will be opened at a stated hour every morning except Sunday, for the trial of such cases as may properly be brought before it. Trials will be had on Sunday only when the exisrencies of the service make it necessary. Manual for Courts- martial (ed. of July, 1898),'^ p. 69, par. 19. ' ' jSeWthat the provision of the 94th Article of War relating to the hours of session of courts-martial was not applicable to Summary Courts. Ibid., par. 12. ' The Act of June 18, 1898, in providing that the trial officer " shall have power to administer oaths " has reference to the oaths of witnesses. The officer himself is not sworn. But the witnesses must be sworn ; and in a case in which it appeared that they were not in fact sworn, held that the proceedings and sentence were invalidated, and that a forfeiture imposed was illegally charged against the accused, who should be credited with the amount of the same on the next muster and pay roll. But the record need not TEE INFEBIOB C0URT8-MABTIAL. 215 right of challenge does not exist, is arraigned in the usual manner. If his plea be guilty, he is given an opportunity to make a statement and, if he so desires, to introduce testimony in respect to character. If the plea be not guilty, the trial is proceeded with in the usual manner; the witnesses are sworn, but the testimony is not recorded. The accused is given the opportunity to cross-examine the witnesses and to introduce testimony in his defense.' Previous Convictions. — Charges submitted for trial by a Summary Court are required to be accompanied by evidence of all convictions of the accused within the twelve months immediately preceding their submission. This evidence is furnished, if practicable, by the officer preferring the charges, and is submitted, with the charges and specifications, to the officer com- petent to order their trial; if the evidence is contained in the Summary Court record-book, a reference to it in the charges will be sufficient. If this evidence is not submitted with or cited in the charges, the Summary Court may take judicial notice of any such evidence as the record-book contains.' "Whenever a Summary Court takes previous convictions into consideration in determining its sentence, a note of the number of such convictions is required to be made in the Summary Court record. Record and Review. — The Act establishinj^h eSnmmaryCourtconta ^he requirement that " there shall be ^ J£™ ™^'?y^°^^^^Ji£^^^^^P^^"^^°^ /J^ mili tary post and, in the field, at the headquarters of the proper command, in which ^hall be entered a recordroFalTc^eF^arSlind determined and the ' actionhadJ;hereon.'" The record of the trial, which is kept in a book prepared for the purpose,* contains the name and designation of the accused, the number of the Article of War violated, with the complete specification in full, the findings, the number of previous convic- tions, and the sentence imposed. The proceedings as thus recorded are authenticated by the signature of the officer constituting the court, and are submitted to the post commander for review." The proceedings, finding, and sentence are approved and made operative by the signature of the state in terms that the witnesses were sworn ; it will be presumed that the law has been complied with unless the contrary appears. Manual for Courts-martial (ed. of July, 1898), p. 69, par. 14. A Summary Court is not empowered to issue process of attachment to compel the attendance of a civilian witness. Ibid., par. 15. ' The accused will be arraigned and allowed to plead, according to court-martial practice. When the accused pleads not guilty, witnesses will be called and sworn and evidence received, the accused being permitted to testify in his own behalf and to make a statement, but the evidence and statement will not be recorded. Manual for Courts- marlial, (edition of July, 1898), p. 67, par. 9. « Paragraph 934, A. R. 1895. • Manual for Courts-martial (edition of July, 1898), p. 67, par. 18. < Ibid. » Act of Jme 18, 1898. (30 Stat, at Large, 483.) ■^ 216 MILITAR T LA W. reviewing authority, which is entered in the book itself, opposite the record of the trial." The commanding officers who are authorized by law to approve the sen- tences of Summary Courts have power to remit or mitigate the same. When the commanding officer sits as a Summary Court, no formal approval of the sentence is required by law; but he should sign the sentence, in such case in his official capacity as commanding officer, and date his signature. Miscellaneous Observations respecting Summary Courts. — Charges fot offenses cognizable by inferior courts are submitted to the post or other proper commander, who, if he thinks the accused should be tried, will cause him to be brought before the Summary Court.' Admonitions, Withholding of Privileges, etc., as Disciplinary Measures. — Commanding officers are not required to bring every dereliction of duty before a court for trial, but should endeavor to prevent^their recurrence bj admonitio ns, the wi thholding of privileges, and by takin g such steps as m ay be necessary to enfo rce_^th eir orde rs and thus secure thje_ maintenance of discipline luTtheir commands. A proper use of this power will, it is believed, ' make it unnecessary to bring before the Summary Court many of the trifling delinquencies which ought not to be made the subject of a court-martial trial; indeed, by a resort to such measures of prevention such trifling delinquencies will in great measure be prevented. Tlie_4iOflJ..fisgillaitions /make it the duty of department commanders to supervise the discipline of / their commands and to see that their subordinate ^commanders fulfill their / dutigs-ia-thia regard.' ~~ - -- .— ~ Reports. — A monthly report of p.^ sgg jf Jgj jy_§^^£}^^y Court is required, by statatCjtobe submittedb^ post^co^^aMlers. ThSe repoYtFare tiled in the office of the jn3ge-advocate of the territorial department in which the post is situated or the command stationed, and constitute a part of the permanent records of the office.* GAEBISO] For a discussion as to the procedure and jurisdiction of this court see pages 235,' 236, post. CHAPTEK XIII. COURTS OF INQUIRY. Object and Purpose. — Ajioiirt of inquiry is an agency c reated by statat e for the purpose of investigatiiig quesMons of fact and, when re quired to do so'by proper anthority. of giving its^opinion upon the^eri^ of a case snb- "^f \ mitted to it for examination .^^ If the several statutes relating to these bodies be examined, it will be seen that they are not " courts " in the strict sense of that term ; they are without power to try and determine questions of guilt or innocence, or to pass sentences; indeed, their function resembles that of the military tribunals which have already been described only in respect to theixpower, ia.Aupimqnj.nd examine, yij^nesses, and to reach such conclusions or findings of fact as are warranted by the evidence thus obtained. In the exercise of this power they are under considerable limita- tions ; they canuotcompel the attendance of w itnesas§jylXQ_ fail or deQ line / to apTJear in obedience to thei r_^inm onsT nor ca n th ey require them to I testif y in a p articular case which is^uudergomgjnquiry.'' Constitution'anS Composition. — Courts of inquiry may be convened by any mflitary commander, that is, by the particular military commander who has power under the Articles of War to convene a court-martial for the trial of the charge which is to be made the subject of inquiry.^ In practice they are rarely convened by any less authority than that competent to convene a general^court-martial — a department commander at any tirne, or the com- ' Winthrop, Chap. XXIV. A court of inquiry is not a court in the legal sense of the term, but rather a council, commission, or board of investigation. It does not admin- ister justice ; no plea of specific issue is presented to it for trial ; its proceedings are not a trial of guilt or innocence ; it does not come to a verdict or pass a sentence. For pur- poses of investigation, however, a court of inquiry in this country is clothed with ample powers, and, in an important case, its opinion may be scarcely less significant and even ^ual than that of a military court proper — that is to say, a court-martial. ^ A court of inquiry has no power to punish as for a contempt. Such power- of this nature as is conferred by Art. 86 is restricted in terms to courts-martial. Moreover, a court of inquiry, not being in a proper sense a court, cannot exercise the strictly judicial function of punishing contempts.* Dig. J. A. Gen., 137, par. 5. ' A court of inquiry should not in general be ordered by an inferior — post or regi- mental — commander where the charges required to be investigated are not such as an inferior court-martial could legally take cognizance of. Courts of inquiry convened by such commanders are, however, of rare occurrence in our service. Ibid., 136, par. 2. * A loose observation of Hough* that "contempts before courts of inquiry are as much punishable as before courts-martial " has been carelessly repeated by several American writers. The recent Eng- lish writer, Clnde. correctly states the law (as to witnesses) in saying'' that a court of inquiry " has no power to punish them for contumacy or silence." * • Precedents, 10. •> Mil. and Mar. Law, 198. 230 u CO URT8- OF INQ Ulli Y. 221 mander of a division or a separat e brigade in time of war. Save in the case of the President, ..eIiq, may ggnvene these tribunals whenever in his opinion jy' the publicjnterest demands that a particular investigation he ordered,' they can only, be convened umm Jihe, application of the officer or soldier whose c onduct is to be ^ ii;\vfisfcif ratfid.-,nr inquired into. The terms "officer" and "soldier " are used here, as elsewhere in the Articles of War, in strict relation to military persons." Co urts of inquiry are composed of from one to three commissioned officers ;.ihe. number and rank of members beings determined, in a pa£ticulai_case^bv the convening authority. A recorder is also detailed whose statutory duty it is to " reduce the proceedings and evidence to writing." ' Procedure. — While courts of inquiry are not vested with the powers, they are not restricted by some of the limitations to which courts-martial are subject. The statute of limitations does not apply to their investigations, and the inquiry taJses a broader scope than is permitted to a court-martial, not being confined to the precise issue presented by a particular set of charges and specifications. The procedure of these bodies closely resembles that of courts-martial. ' Challenges. — Alth ough neit her Article 88 nor any provision of the code specificsilXJillthorizes the challenging of^the members of a court of inquiry, yet in the interests gl justice, and by the usage of the service in this country, this proceeding is permitted in the, same manner as before courts-martial. Article 117 requires that members of courts of inquiry shall be sworn " well and truly 3jg,_exaniine and inquire, according' to tiie evidence, without par- tiality, prejudice," etc.; and it is the sense of the service that their com- petency so to do should be liable to be tried by the same tests as in a case of a court-martial.* ' 1 15th Article of War. ' Tliis Article aulhorlzes the institutioQ of a cou7-t of inquiry only in a case of an "officer or soldier," and the word " officer " i\s employed in the Articles is defined by Sec 1342, Rev. Sts., to mean commissioned officer. A court of inquiry cannot, there- fore, be convened on the application, or in a case, of a person who is not an officer (or soldier) of the Army at the time. Such a court cannot be ordered to investigate transac- tions of or charges against a party who, by dismissal, discharge, resignation etc., has become separated from the military service, although such transactions or charges relate altogether to his acts or conduct while in the Army. A court of inquiry cannot be ordered in a case of an "acting assistant surgeon " who is not an officer of the army, but only a civil employee. Dig. J.A. Gen., 135, par 1. ' 116th Article of War. The extent to which the prosecution of the inquiry shall be left in the hands of the recorder is determined, as will presently be shown, by the couit itself. ■"Dig. J. A. Gen., 186, par. 4. Though a court of inq\iiry has sometimes been rom- pnred to a grand jury, there is little substantial roseml)lMnce between the two bodies. The nccused appears and examines witnesses before such a court as freely as before a conrt-maitial, and its proceedings are not required to be secret, but may be open at the discretion of the court.* Ibid., par. 8. * See Mauornb. § SO-I; O'Bi-ieE. 293; DeHai-t, 2TS. In the .ioint resotution of Congress of Feliruary 13, 1874, authorizing the PrfiBideiit to convene a certain special court of inquiry, it was; " provided that r.he accused mav be allowed the same right of cliallenije as is allowed by ^aw in trials by court-martial." It appen'rs, however, to have neen regarded in the debate on this resolution (see Congressional Record, vol. J!, Nos. 38, 40) that this provision was unnecessary to entitle the party to the privilege. 222 MILITABT LAW. Conduct of the Investigation. — The investigation is conducted by the court or, under its direction, by the recorder, along lines of inquiry deter- mined upon and laid down by the court itself. The officer at whose request the court has been convened is entitled to be present throughout the inquiry; he Is also entitled to the privilege of cross-examining the witnesses called in support of the accusations, he may summon witnesses to testify in his defense, and may address the court or submit a statement of his case at the conclusion of the investigation. Where the court is ordered by the Presi- dent, the several officers whose conduct is being made the subject of inquiry are entitled to be present, in turn, to cross-examine witnesses and to submit testimony as above described. The sessions j|.ihfi^Qurt are ope n 8r closed a t the di scretion of the convenin g authority;_p r,_iiL- the absence j ofinstruc- tio ns iji tha t regard, at tEe discretion of the court.' Becord. — The record of a"coufrof mquiry consists of tvo parts: ( 1) the. testiinon;L2L.i^.'^.-^'"tnesses as^. given Jjjl them during the he aring , incl uding sucli documentary evidence as may .have been submitted and the.jaEg]i;^nts or statements of the officers or soldiers whose conduct has been made the subject of investigation, and (2) the report proper, Ji^at is, a recital or statement of the facts constituting the occurrence ..referred to the court for examinatfonT" This report is in the form of a narrative, and is based upon, arid" derived from, the testimony submitted during the investigation; and every statement which it contains must be fully supported by the evidence adduced. To that end the testimony of individuals may be cited or referred to in the report, and the use of foot-notes and cross-references is also authorized. The proceedings of a court of inquiry when authenticated by the signatures of the recorder and the president are forwarded to the convening officer.' Opinion. — The 119th Article of War contains the requirement that a court of inquiry shall not givej^opinjonon the merits of _the_oas e inquireri 0?" unless speciallyOT dered ^t o do_ so.^ Courts of "iiiquiry are convened to accomplislTa deflni{e"purpose. They investigate the conduct of or accusa- tions against individuals, the management of administrative or military affairs, the conduct of military operations, and the causes which have con- tributed to the success or failure of particular undertakings. Such investi- gations being exhaustive in their character, those who are charged with them are peculiarly fitted to express an opinion as to the merits of a particular case thus investigated by them. When required to do so therefore by the convening authority, and not otherwise, courts of inquiry may submit such opinion on the merits of the case.* 'Dig. J. A. Gen., 136, par. 3. « 130th Article of War. « 119th Article of War. * An opinion given by a court of inquiry is not in the nature of a sentence or adju- COURTS OF INQUIET. 223 Nature of Opinion. — Where, as in the majority of cases, the inquiry is instituted with a view of assisting the determination, by the President or a military commander, of the question whether the party should be brought to trial, the opinion of the court will properly be as to whether further pro- ceedings before a. court-martial are called for in the case, with the reasons for the conclusions reached. Where no such "view enters into the inquiry, but the court is convened to investigate a question of military right, respon- sibility, conduct, etc., the opinion will properly confine itself to the special question proposed and its legitimate military relations. A court of inquiry, composed as it is of military men, will rarely find itself called upon to express an opinion upon questions of a purely legal character.' Use of Record in a Subsequent Trial. — The 131st Article of War authq- rizes the proceedings ofa^ou^LslJ-AftttW^.toi^b^B^^mitt^^ evidence by a nm]rt-ma,rt-,iaj^jji^^jjg.^j>g flftj-, Pfapit.a.1 n or extepd,yig to the dismissal of a n o^^^jProvided that, the .circumstanfifia a.rpi sncj^ tha t oral testimony can not be obtained..". .' dication pronounced upon a trial. Upon a subsequent trial by court-martial of charges investigated by a court of inquiry, the accused cannot plead the proceedings or opinions of such court as a former trial, acquittal, or conviction. Dig. Opin. J. A. Gen., 137, par. 1. Wliile it is of course desirable that the members of a court of inquiry, directed to express an opinion, should concur in their conclusions, tliey are not required to do so by law or regulation.* The majority does not govern the minority, as in the case of n find- ing or sentence by court-martial. If a member or a minority of members cannot con- scientiously, and without a weak yielding of independent convictions, agree with the majority, it is better that such mem her or members should formally disagree and present a separate report or reports accordingly. The very disagreement, indeed, of intelligent minds is a material and important fact in the case, and one of which the reviewing authority is entitled to have the advantage in his consideration of and action upon the same. Ibid., par. 3. It is not irregular, but authorized, for a court of inquiry, in a proper case, to reflect, in connection with its opinion, upon any improper language or conduct of the accused, prosecuting witness, or other person appearing before it during the investigation. f Ibid., par. 4. ^Ibid., 138, par. S.J ' 121st Article of "War. While the proceedings of a court of inquiry cannot be admitted as evidence on the merits upon a trial before a court-martial of an offense for which the sentence of dismissal will be mandatory upon conviction, § yet 7ield thnt upon the trial of such offense, as upon any other, such proceedings, properly authenticated, would be admissible in evidence for the purpose of impeaching the .statement of a wit- ness upon tlie trial who, it was proposed to show, had made quite different statements upon the hearing before the court of inquiry.! jl^i^-, 139. * In tlie case of the court of inquiry (composed of sevj^n general officers) on the Cintra Convention, in ]808, the members who dissented from the majority were required by the convening: authnritv to put on record their opinions, and three dissentinpj opinions were accordingly given. A further instance, in which two of tlie five members of the court gave eacli a separate diss.^nting npininn. is cited by Hougli."^ Mainly upon the authoi-ity of the former cise, both Hoiisrh'^and Simmon- '^ iiolil that membei"S non-concurring with the majority are entitled to have their opinions r^t'oiie'l in iln- reiroi'ii. t Thus the court of inqiiiry on the conduct of the Seminole W;ir aniniadverteil. iii its oi)inii'n, un- favorably upon certain offensive and reprehensilile language employed agivin-^t each other by the two general officers concerneil, the orte in his statement to the <'oui-t and the other in his official com- munications whioli were put in evidence. (See G. O. 13. Headquarters of Arniy, 1S37.) t In an exceptional case, that of the special coui-t of itiqtliry authorized l)y Congress in the joint resolution of February 13, 1871, the court was required to express an opinion not only upon the *' moral " but upon the "technical and legal respotisibility " of the officer for the "offenses'* charged. I Compare G. O. 33, Department of Arizona, 1871. l See G. G. M. O. 40, H. Q A., 18S0. • Precedents, 642. t, juj,. « § 339. k 224 MILITARY LAW. THE KEDEESS OF WRONGS. Methods of Redress in tlie Case of a Commissioned Officer. — The 39th Article provides that " any officer who thinks himself wrong;ed by th e com- manding officer of his regiment and , upon due application to such com- mander, is refused redress may complain to the general commanding in the State or Territory where such regiment is stationed. The general shall examine into said complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, transmit to the Department of "War a true statement of such complaint, with the proceed- ings had thereon." The Article above set forth provides a very inadequate remedy for a wrong suffered by a commissioned officer at the hands of a military superior; so inadequate, indeed, as to have given occasion for the existence of another method of obtaining redress in cases of by no means infrequent occurrence to which the Article does not apply. The 29th Article applies, as will be seen, to a single case or class of cases, that in which an officer " thinks him- self wronged by the commanding officer of his regiment." In a case properly arising under it, therefore, the remedy provided would of course be applied to the exclusion of every other.' Where, however, the wrong or injury for which redress is sought has been suffered at the hands of a superior officer nat , Rtii"r)'""g towardJih^ com plainant i nthe relation of a regimental com mander, the following prac- tice, based upon the custom of service, may be resorted to. In order that a case may arise to which the method here outlined may with propriety be applied, the following conditions should be fulfilled : f ll The wrong com - plained oish onld not constitute a military offense, that is. a v ''';'1"itiin" "^ " specific Article of War, since the remedy in that cane, wh ich consi sts in the submission of charges ;;;;TijJ]2gf?ifip,atiin^s fnr.thP! pfffimfi allgg^-d tojiaveb^en COTimittedjJs not only specificbut exclusiv e ; (2) R edress should have been sought from the superior by whom the wrong is alle ged to have been^ cpm- _mitTed ^ TIresEneDTnittions"^aviag been fulfilled, "tEe officer should present his case, preferably in writing and through the regular channels of official communication, to the commander having jurisdiction to redress the wrong complained of. Appeal. — If no redress be afforded by such officer, or if the remedy applied by him be inadequate, the case may be carried through the proper military channels to the Secretary of War, as the representative of the Presi- dent, who is the commander-in-chief of the military forces of the United ' This Article is expressly confined to cases of alleged wrongs ou ibe part of regi- mental commanders. It cannot be extended to apply to a complaint of wrong done by a post commander who is not also the commanding officer of the regiment of the com- plainant. Dig. J. A. Gen , 34. COURTS OF INQUmT. 225 States. Snch an appeal is not in general advisable, save in an extreme cace where redress has been plainly denied and in which the circumstances of hardship are peculiar and unusual. Should^ the appeal be found upon due examination to be frivolous or based upon insufficient grounds, the officer su.Bmitting~i¥~inay be made the^subjeci of rebuke or a,dmonition or, in~an extreme case, may be subjected to such measures of a disciplinary character as may be d'effianded by the strict necessities of the case. Methods of Redress in the Case of an Enlisted Man. — A method of obtaining redress, in many respects analogous to that already described in its relation to commissioned officers, exists in behalf of enlisted men, in all cases not covered by the provisions of the 30th Article of "War, which will presently be explained. The procedure under the 30th Article, though applicable, according to its terms, to "any soldier who thinks himself ■wronged by any officer," is, by reason of the peculiar limitations upon the jurisdiction of the regimental court-martial, restricted to cases arising under The immediate command of the regimental commander, and is not applicable to persons not under the command of that officer or to cases which it is beyond his power to redress. If, therefore, a wrong be inflicted upon an enlisted man to which, for the reasons above stated, the 30th Article would not afford relief, such enlisted man would, through the captain of his l^ company or other immediate commander, invoke the remedy heretofore explained in its application to the case of a commissioned officer.' The Regimental Court for doing Justice. — In addition to the criminal jurisdiction conferred upon the regimental court by the 81st and 83d Articles of War, the 39 th Article provides that " any soldier who thinks ' The duty ot hearing and investigating complaints is one of the highest importance to discipline, and should- be not only personally but carefully and patiently exercised by company commanders and others to whom, under existing regulations and customs, such complaints are habitually addressed. From their nature they are not susceptible of delegation, especially to non-commissioned officers. A superior officer who yields to a non-commissioned officer powers or privileges not appropriate to his rank and to which he is not properly entitled, places the latter in a false position, while at the same time making himself iu great part responsible for any abuse of authority on the part of his inferior. Dig. J. A. Gen., 537. In this connection it has been held by the Judge.Advocate General that "Though I am aware of no law in terms prohibiting a company commander fro.m delegating to a non-commissioned officer so important a part of his authority and ■duty as the entertaining in the first instance of the complaints and requests of the men of the company, I can but consider such a deleiration to be at variance with the principle and system of our military organization. Further, such a practice, as it appears tome, must tend to render commissioned officers negligent and irresponsible, and non-commissioned officers arbitrary and overbearing. Indeed I can conceive of nothing that would sooner spoil a good sergeant than to place him iu a position to delermine at his discretion whether the complaints of his inferiors should be entertained by his superior, and to color them at will when transmitted. Thus, though the practice may, in some iustiuices, have been found convenient and innocuous, its effect in general must, I think, be piejudi cial to the best interests of the service." * Dig. J. A. Gen., 270. * Extract from an indorsement of the Judge-Advocate General in submitting to the Secretary of War a communication (concurred in by the Judge-Advocate General) from Brig. -Gen. E. O. C. Ord, commanding Depfc. of Texas, in regard to the relations between the commissioned and non-comnii»- ^ioned officers of companies. . ^^-"'\ 226 MILITARY LAW. himself wronged by any ofiBcer may complain to the commanding oflScer of his regiment, who shall summon a regimental court-martial for the doing of justice to the complainant. Either party may appeal from such regimental court-martial to a general court-martial ; but if, upon such second hearing, the appeal appears to be groundless and vexatious, the party appealing shall be punished at the discretion of said general court-martial. ' ' ' The 30th Article of War is thus seen to confer upon the regimental court-martial a peculiar form of jurisdiction in many respects resembling that exercised by courts of inquiry. This jurisdiction is called into being whenever an enlisted man believes himself to have suffered a wrong, at the hands of a commissioned officer, of a nature fit to be investigated by this tribunal. The court is convened by the regimental commander ' of the complainant upon application alleging a wrong over which the court has jurisdiction. For a wrong done by an officer not belonging to the regiment this Article provides no remedy." There ar e two manifest and unqualified limitations. to the province of the regimental court under this Article, viz. : (1) it cannot usurp the'place of a court of inquiry ; (3) it can take no cognizance of matters which it would be beyond_the"p6wer of the fegimentaLcQminaD.d£t,Jto redress. W hen Ihe matter is beyond "the reach oTThis commander it is beyond the jurisdiction of this court. If it involve a question of irregular details, excessive work or duty, wrongful stoppages of pay, or the like, a regimental court under this Article may be resorted to for the correction of the wrong. Otherwise when the case is one of a wrong such as can be righted only by the punish- ment of the officer.' ' The authority to suramoo a regimental court under tliis Article is vested in terma in the regimental* commander. A department or other superior commander cannot properly extiicise such authority, nor will his order add to the validity or effect of the proceeding. Dig. J. A. Gen., 35, par. 3. ' The court cannot take cognizance of a complaint ngainst an officer no longer in the service. So where a company commander who had entered on the pay-rolls an unau- thorized stoppage against a soldier resigned, and the siirae stoppage was thereupon continued by his successor, lield that the complaint should be presented against the latter. Ibid., par. 4. Where the alleged wrong was charged upon certain officers' servants and it did no appear that their acts were authorized or sanctioned by the oflBcers who employed them, 7ieW that the complaint was not one which' could be taken cognizance of under lhi& Article. Ihid., par. 5. ' Ibid., 36, par. 6. The "regimental court-martial " under tlie 30th Article of War cannot be u.^ed as ii substitute for a general court-martini nr court of inquiry, for it can- Dot try an officer, nor make an investigation for tlie purpose of deiermining whether he shall ije brought to trial. When, it the soldier's complaint should be sustained, the only redress would be a reprimand to the officer, the matter would not be within the juris- diction of this court. It can only investigate such matters as are susceptible of redress- by the doing of justice to the complain.int ; that is, when in some way he can be set right by putting a stop to the wrongful condition which the officer has caused to exist. Erroneous stoppages of pay, irregularity of detail, the- appiirent requirement of more labor than from other soldiers, and the like, might in this way be investigated and the wrongful condition put an end to. Tlie court will in such cases record the evidence and its conclusions of fact, and recommend the action to be taken. The members of the C0URT8 OF INQUIBT. 227 This Article is not inconsistent, however, with Article 83, which pro- hibits regimental courts from trying commissioned officers. It does not contemplate or provide for a trial of an officer as an accused, but simply an investigation and adjustment of some matter in dispute — as, for example, a question of accountability for public property, of right to pay or to an allowance, of relief from a stoppage, etc. The regimental court does not really act as a court, but as a board, and the " appeal " authorized is practi- cally from one board to another.' But though the regimental court has no power to find " guilty " or " not guilty " or to sentence, it should come to some definite opinion or conclusion, and one sufiiciently specific to allow of its being intelligently reviewed by the general court if desired. ° Procedure. — The parties to the proceedings are the complainant and the respondent, or defendant. The complainant first presents his case, support- ing it, if need be, by the testimony of witoesses or by appropriate documen- tary evidence. The case of the defendant is then submitted in a similar manner ; after which the court is cleared and closed for deliberation. If in favor of the complaiaant, the judgment of the court is that the complaint is sustained, together with a recommendation as to the proper remedy to be applfed to the wrong complained of. If the allegations be not sustained, the judgment is that the complaint be dismissed. If the remedy^ proposed is within the power of the regimental comma,nder, he makes the recommen- dation of the court' operative by hjs. approval or confirmation of the proceed- ings; if it be beyqn j,..to..-jjM^"''^^ ^QP- V f^^.- ^^g^S?°^^^ '^°°12;?''^^?L^® 9^ coursej^ithouipower_t^o act^^ in the matter and can only submit the case to the proper authority for remedial action. Appeals. — The 30th Article of War provides that " either party may appeal from such regimental court-martial to a general court-martial ; but if, upon such second hearing, the appeal appears to be groundless and vexatious, the party appealing shall be punished at the discretion of said general court-martial." The parties to the appellate proceedings are the appellant and the respond- ent, and the case in appeal is reheard from the beginning. Bj_ agreement of the parti es, and with thejermission of the court, the whole or a part of the \ ,/' record in the lower court may be submitted as a part "of the case nTappeal ; ' court (and the judge- advocate) will be sworn faithfully to perform their duties as mem- bers (and judge-advocate) of the court, and the proceedings will be recorded as nearly as practicable in the same manner as the proceedings of ordinary courts-martial. Judge- Adv. Gen., see, also, Manual for Courts-martial, 89, note. ' See Macomb, §§ 193, 194; G. O. 13, War Dept., 18i3; 1 Opin. Atf.-Gen., 167. ' Ibid.. 35, par. 1. The proceeding under this Article, not being a trial, 5s not affected by the limitation of the 103d Article. Due diligence, however, should be exerci.sed in presentiug the complaint, and a delay in a certain case to do so for three years (not satis- factorily explained) held wholly unreasonable and properly treated by the court as seriously prejudicing the complaint.* Ihid., par. 3. * See Manual for Courts-martial, p. 89, note. ^ 228 MILITAS Y LA W. otherwise the original record forms no part of the appellate proceedings, and the action of the general court-martial is that of an appellate court properly so called, and in nowise resembles the procedure of the civil courts upon writs of error. The Article above cited confers upon the court of appeal a summary power to punish the party appealing if the appeal appears to be " groundless and vexatious. " The proceedings in this case are summary in character. The charge against the appellant is formulated by the court after due delib- eration, and he is given an opportunity to show cause why sentence should not be passed upon him. The findings and sentence are submitted to the reviewing authority in the ordinary way, and are approved and carried into effect in the usual manner. It is thas seen that the procedure of the regimental court when convened for the purpose of doing justice is, in many respects, analogous to that of a court of inquiry; and its investigation relates to the fiscal or administrative, as distinguished from the criminal or penal side of the case before it. The justice done consists rather in the correction of errors in administration and accounting than in the infliction of penalties for offenses committed by the ofiicer whose conduct has been complained of, since the court is forbidden to_entertaiH, acriminal charge against a commissioned officer by theixgress terms of the 83d Article of War. — ,,..,- ..-.„- .™— . CHAPTEK XIV. MILITARY BOARDS. Boards; Constitution, Powers, etc. — A loard is a committee of commis_- sioned officers called together by •a,jwcm^~^^'i-A^^^^^^^g^^^\^ a view ^to^conduc t anexamiin ation^ j^^^ iPYest i g a te a q aestioa^of fa^ and, if called upon, to siiBmit a recommendation with r^pect to the same, or to determine que slions"]or^scarorproperl;y responsiblityj^^ Those chargeTwTtn the examination of officers, enlisted men, and civilians with a view to their appointment, promotion, or retirement are created by law; others — boards of survey, for example — are provided for in the Army Eegalations; still others are called into being by a proper convening officer, whose authority in this regard is limited to the instibntion of an inquiry into a transaction the subject of and the parties to which are under his command or oth'fer- wise subject to his jurisdiction. "Qjdessjexgre^l^ authorized by statute, / military boards are without authority to summon or examine witnesses,' but jZ- ma y recei ve an ( fact uponievide ii ce submitted to them jn^ the form of affi- / dasjts duly authenticate in accordance with law." ' j ' A board of officers convened to investigate — obtain, or hear and examine, evidence — and report, can, in the absence of specidc statutory authority, exercise none of the peculiar legal functions either of a court-martial or of a court of iuquiry.* Its members cannot be sworn ; it cannot swear witnesses ; civilian witnesses cannot be compelled to appear before it ; nor are the witnesses who appear and testify legally entitled to any compensation for attendance or travel. Such a board cannot try, nor can it sentence. There Is properly no " accused " party required or entitled to appear before it as before a court-martial or court of inquiry. It is not restricted by law as to the period of its sittings, nor is it affected by any statute of limitations. Its members (though in this, indeed, it does not differ from a court of inquiiy) may present two or more reports where they cannot concur in one. Dig. J. A. Gen., 178, par. 1. As a court of inquiry cannot be ordered in a case of ^woilian, a body of officers con- vened to inquire into and report upon the facts of a case of an officer who has been legally dismissed from the service is a mere board of investigation, and can exercise none of the speciiil powers of a court-martial or court of inquiry. Ibid., 178, par. 3. * The instruments of evidence above referred to are called " affidavits " to distinguish them from the formal "depositions" which are authorized by law to be submitted in evidence in court-martial trinls. An affidavit may therefore be defined as a sworn statement, submitted to a board by an interested party, with a view to determine a question of property or administrative responsibility. Being ex parte in character, an affidavit has not the evidential value of a regularly executed deposition. Such sworn statements, or affidavits, may now be authenticated in accordance with the requirements of Section 4 of the Act of July, 1894, (37 Stat, at Large, 278,) which provides "that judge-advociites of departments and of courts-martial, and the trial officers of summary courts, are hereby authorized to administer oaths for the purposes of the administration of military justice, and for other purposes of military administration." * Dig. J. A. Gen., 178, par. 2. 339 Jy 230 MILITARY LAW. Bules of Procedure; Reports. — The procednre of these boards should conform as nearly as possible to that prescribed for courts-martial. Their records are prepared in accordance with similar rules, and usually begin with the title or object of the investigation, as set forth in the convening order, followed by a copy of the order authorizing its action or prescribing the scope and purpose of its inquiry. The proceedings_are„.as a xal&f auihejiti- cated byjhe^signatures not only^ the, president andjrecorder, imt-by-those of all the members . When completed they are submitted to the convening authority for his approval or disapproval, or for his orders in the case. The number of copies to be prepared and submitted is determined by the Army Regulations or, in the absence of such provision, by the convening order. Review. — The reviewing authority in each case is pointed out by the statute or regulation authorizing the board; if created without such authority, the proceedings are reviewed by the oflBcer by whom the board was creabed. Unless authorized by law or regulation, sach bodies are informal, and their findings of fact and their opinions, when submitted, are merely advisory in character and can acquire only such operative force in a particular case as may be given them by the orders of the convening oflBcer. BOARDS OF EXAMINATION. General Requirements. — The statutes regulating the appointment and promotion of commissioned oflBcers impose, as a condition precedent to such appointment or promotion, the requirement that the oflficer or candidate shall be subject to an examination, to be prescribed by the President, with a view to determine his fitness for appointment or for promotion to a higher grade of military rank.' The President is also authorized to prescribe a system of examinations for enlisted men for the purpose of determining their fitness for promotion to the grade of second lieutenant." These examina- tions are conducted with a view to ascertain (1) the physical capacity of the candidate to perform the duties of the higher grade, and (3) his char- acter and his professional qualifications for advancement.' Constitution and Composition of Boards of Examination. — The constitu- tion of the severul boards of examination is determined by law, and thev are ->(J conv.eiied-jn_every_case by the Secretar y of War . Their composition is ■ regulated by the same authority, subject to the restriction " that the exami- nation of officers appointed in the Army from civil life, or of officers who were officers of volunteers only, or were officers of the militia of the several States called into the^ervice of the United States, or were enlisted men" in the regular or volunteer service, either in the Army, Navy, or Marine ' See, Sections 1159. 1172, 1906, 1207, Revised Statutes; the Acts of Octoberl, 1890, (26 Stat, at Large, 563,) October 1, 1890, (26 ildd., 653,) aud July 27, 1892(37 ibid., 276). = See the Act of July 30, 1893 (27 ibid., 336). ' SectioHS 3 and 3, Act of October 1, 1890 (36 Stat, at Large, 563). f MILITARY BOARDS. 231 Corps, during the war of the rebellion, shall be conducted by boards com- posed entirely of officers who were appointed from civil life or of officers who were officers of volunteers only during said war, and such examination shall relate to fitness for practical service and not to technical and scientific knowledge." ' The following coniposition is required by existing orders : Officers of the Line. — The board will consist of five memberB; and a j, / recorder. Two of the members will be medical officers and three will he' ,- line*o^ers senior in rank to, and, as far as jracticable , from the same arm / of servjcg_as, the officer to be examined. • Officers of the Corps of Engineers, the Signal Corps, the Ordnance, > Quartermaster's, and Subsistence Departments. — The board will consist of ) / five members, two of whom will be medical officers and three of the same /»-- ■qprps ^or^epaEtBgntj when practicaTp le, as the officer to be examin ed7"ana / senior to him in rank, the juij^or of whom will a^t_as recorder. ^, / Medical Officers. — The board will consist of three,, medical officers^^ senior j,/ in rank to the officer to be^_examin&d, the junior of whom will act as ^ recorder; prg^ided t hat whenever a medical.officer is f onnd to be physically *j disqualified the board will rejgqrt to the adjutant-general and adjourn, pend- j ing^^^^mtmen£,x!f.two-additiQa.al members,. who may be from any line or stafE officers available, senior in rank to the officer to be examined. The board will therTproceed under the rules governing retiring boards." -—' In practice boards for the examination of officers of the line, and of can- didates for appointment from the ranks or from civil life, are composed of officers of the line and of medical officers; boards for the examination of officers of the staff, or for the selection of appointees thereto, are composed as a rule of officers of the department to which the candidate belongs or into which he desires to be appointed. Boards of_^gminatiqn are jijpyided ( , with recpj4e,rs; in some cases the duty qf^recorder jsjierformed by the junior i •'' member, in others by an officer apgqinted for the purpose.' ,' 1 Section 3, Act of October 1, 1890 (26 ibid., 562). » General Orders 41, A. G. 0., 1897. * For rules regulating tlie composition of examining boards under the Act of October 1, 1890, see General Orders, No. 128, A. G. 0., of 1890. The Act of February 2, 1901, provides that " When the exigencies of the service of any officer who would be eutitled to promotion upon examination require him to remain absent from any place where an examining board could be convened, the President is hereby authorized to promote such officer, subject to examination, and the examination shall take place as soon thereafter as practicable. If upon examination the officer be found disqualified for promotion, he shall, upon the approval of the proceedings by the Secretary of War, be treated in the same manner as if he had been examined prior to promotion." Sec. 32, Act of February 2, 1901. (31 Stats, at Large, 756.) Beld that Sections 1206 and 1208, Eev. Sts., relating to the examination of officers -^ 232 MILITAB T LA W. Organization; Procedure.— " The organization of boards will conform ,,- to that of retiring boards ; the recorder swearing the several members, in- eluding the medical officers, faithfully and impartially to examine and report upon the officer about to be examined, and the president of the board_then swearing the recorder to the faithful performance of his^dufy. Proceedings will be made separately in each case.' ■^ " Previously to the swearing of the board, members thereof may be challenged for cause stated to' the board, the relevancyand vallHTty of which ?'' shall be determined by the Tull board, according to the procedure of courts- martial in like cases. The record will show that the right to challenge was accorded. If the number of members is reduced by challenge or otherwise, the board will adjourn, and report the facts to the Adjutant-General, through the president of the board, for the action of the War Department. Medical officers will not take part in the professional examination except in the cases of assistant surgeons. They will make the necessary physical examination of all officers and report their opinion in writing to the board. All questions relating to the physical condition of an officer shall be determined by the full board.' ' " If^anything^hould arise during the examination reguiringihe in^;o^^c- tion.Q£„esid.ence, the inquiry~sEair proceed lipon written interrogatories as far as possible, the board deter niihrng to whom questioiis shall be forwarded. When, in the opinion of the board, it becomes ess,entiaL to take.pral testi- mony, t he f act s_slioiiTd be reported to the War Department for the necessary orders in re gard ^A vitaeises'1;o""5e^immoned from a distance. Witnesses examined oi-ally_will be sworn by the recorder.' " All public proceedings will be i n the p resence of the officer under I examination; the" conclu'sioiis reached and the recommendations entered in each case will be regarded as confidential." ' " Daring oral and practice,! examinations all the members excepting the medical officers will be present." Written examinations may be conducted in the presence of any one member of the board or in that of the recorder, for which purpose the board may be divided into committees, before whom the examination shall be conducted from day to day until completed ; after which the board will reassemble to consider its finding." of the Engineer and Ordnance Coips were not repealed by the Act of October 1, 1890, but remained fully in force.* Dig. J. A. Gen., 403, par. 3. Held that assistant surgeons of the rank of lieutenant were subject to examination underthe Act of October 1, 1890, "to provide for the examination of cerlaiu officers of the army and to regulate promotion therein." IMd., par. 1. 1 General Orders, No. 41, A. G. O., 1897. ' Ibid. Papers should be given out so that everything in the hands of the officer being examined may be answered before a recess or adjournment. A statement show- ing that such was the procedure during the written examinations will be embodied in * See G. O. 128, A. G. O., of 1890., par. 8. MILITARY BOAliDS. 233 The terms of the seTeral statutes authorizing examinations for promotion give precedence to the physical examination, which is condacted by the medical members of the board or by medical officers specially detailed for the purpose. The physical fitness of the candidate is determined by the board from the examination so made. If the officer undergoing examination is found physically disqualified for promotion, his examination is suspended.' the record. The number and value will be entered on the margin of questions used for the written examination. Original questions prepared by the board will, for con- venience of the reviewing authority, indicate where answers may be found. G. O. 46, A. G. O. 1897. To secure some degree of uniformity of examination of line officers, boards will be furnished by the Ajdutant-General with lists of questions, with values attached. Boards will not, however, be confined to the questions contained in these lists, and are authorized to ask any questions, selected from the publications recommended for study, deemed necessary during the progress of the oral, written, or practical examina- tions.* Where blackboard or other illustrations will facilitate the oral and practical examinations, their use is authorized. Examinations will be conducted in a siiiHcient-ly exhaustive manner to determine not only that the subject is thoroughly comprehended, but the degree of proficiency of the otficer being examined, and until the board is positively satisfied as to his ability to impart instruction in the various subjects. In case of unpropitious weather, practical exercises may be postponed from day to day, but never omitted or materially curtailed. Ibid. Whenever the oral exiimination of any line officer is unsatisfactory in any subject the board will at once proceed with a written examination in that subject, and in case the officer is not found proficient the questions and answers will be attached to the proceedings. IMd. Commanding officers of posts at or in the vicinity of which boards may be appointed to meet will, without further instructions, furnish, upon request of the board, such available troops and material as may be required by boiirds in the execution of this order. When it is not practicable to obtain the requisite troops and mateiial for the complete practical examin.ttion as prescribed for artillery, oral and written examinations will be substituted by the board for the portion omitted.. IMd. At the conclusion of his examination each officer will sign and submit a certificate in his own handwriting to the effect that he has not received assistance from any unauthorized source, or communicated or transcribed any of the questions or problems submitted for his use during the examination. Ibid. In written examinations a numerical value will be given to each question. In the oral and practical examinations a numerical value will be given to each subject. Where both oral and practical examinations are required in the same subject the board will allot the value to be credited to each part. Ibid 'Ibid. Before proceedingwith the physical examination the officer about to be examined * In the lists prepared for the use of boards, values of 5, 10, and 15 have been assigned to the ques- tions. Corresponding values will be given by the board to any original questions. It is assumed that an average of twenty questions will bo asked in each subject, but the board is not limited to that num- ber. The total values and relative weights of all subjects for which questions are furnished by the Adjutant-General shall be as follows : Total. Relative Subject. Value. Weight. ' I. Administration 200 1 II. Drill regulations 200 3 III. Exterior ballistics, etc 200 8 IV. File discipline ' 20O 2 V. Hippology 200 2 VI. Military field-engineering 200 2 VII. Military law 200 1 VIII. Military topography 200 2 rx. Minor tactics 200 3 In computing the examination, find the percentage in the various subjects, multiply each by the relative weight of that subject, then divide the sum of these products by the sum of the relative weights of the subjects included in the examination of each officer. The numerous questions embraced in each list, togerher with such original questions as maybe formulated by the board, admit of considerable variation, and make it possible to arrange examlna^ tlons radically different as regards particular qnestions. hut essentially the same in respect to scope and character. It is desirable that the questions be snlected indiscriminately in each case, to the end that each officer undergoing examination may have a diff^-rent arrangement of questions, even when simul*- taneous examinations of a similar character are being cuuUucted. Ibid. 234 MILITAR7 LAW. If, on the other hand, he is found to be physically qualified, the profes- sional examination is entered upon. The professional examination is in part theoretical, in part practical, and is in part based upon the official record of service of the officer undergoing examination. The examination is required to be conducted as far as possible orally. If the oral examination be unsatisfactory, however, the examination is continued in writing, in the form of questions to which written answers are required. The practical part of the examination, which is carried forward on the drill-ground, con- sists in the execution of maneuvers, the giving of commands, and of the solution of problems in minor tactics. The record of service of the candi- date, as furnished by the War Department, is also considered by the board. The several subjects of examination, and the relative weights to be attached •to each, are set forth in the regulations prescribed by the President and in such special instructions as may be furnished the board by the Secretary of War. The order of examinatiou and the supervision of its details, including the selection of questions in each of the prescribed subjects, together with the weight to be attached to particular questions and the time to be devoted to each subject, are regulated by the board.' Record. — The record or report of the examination, which is similar in form to the record of a court-martial, is kept by the recorder under the supervision of the board; a separate report being submitted in each case. In the case of an officer found qualified for promotion the record will set forth the proceedings of the board, to which will be attached a summary of the results of the examination, in accordance with a form furnished for that purpose by the War Department.' The report or judgment of the board is that the officer is, or is not, physically and professionally qualified for appointment or promotion. When the board finds an officer qualified for promotion its conclusion will be stated in the following form: "The board is of the opinion that has the physical, moral, and professional qualifications to will be required to submit, for the information of tlie board, a certificate as to his phy- sical condition. In event of no cause for disqualification existing the certificate will talie the following form : "I certify, to the best of my knowledge and belief, that I am not affected with any form of diseiise or disability which will interfere with the performance of the duties of the grade for promotion to which I am undergoing examinalion." When the board finds an oflScer physically incapacitated for service it shall conclude the examination l)y finding and reporting the cause which, in its judgment, has pro- duced his disability, and whether such disability was contracted in the line of duty. Any officer reported by a retiring board as incapacitated by reason of physical dis- ability, the result of an incident of service, shall, if the proceedings of said board are approved by the President, be regarded as physically unfit for promotion within the meaning of section 3 of the Act of October 1, 1890, and will be retired with the rank to which his seniority entitles him whenever a vacancy occuis that otherwise would result in his promotion on the active list ; provided that before the occurrence of such vacancy he shall not have been placed on the retired list. General Orders, No. 41, A. G. O., of 1897. ' IMd. / MILITARY BOARDS. 235 perform efficiently all the duties of the grade to which he will next be eligible, and recommends his promotion thereto." ' \ Where an officer is foand physically disqualified the record will be 1 y authenticated 1bY"Tin;¥e~ memb^,~ including medical officers and the j^' recorder. In all other cases themedical officers will not be required to sign "the pro'oeedings.,.J113SgrSeiK5eF dissents from the opinion of the board, thRjFa,f^j) f such dissent will be se t forth in the^ecord.' "Whenever the board finds an officer disqualified for promotion from any •cause, the examination papers will be attached to the proceedings and the record will contain a full statement of the case. The record when com- pleted is forwarded to the Adjutant-G-enefal of the Army for the action of the Secretary of War.' Approval and Confirmation. — If the report in the case of a particular officer be favorable and the action of the board receives the approval of the Secretary of War, the officer becomes entitled to promotion upon the occurrence of a proper vacancy. If he be a candidate for appointment merely, he becomes eligible to selection for appointment.' If the report of the board be unfavorable, the Act of October 1, 1890, becomes operative in the following manner : (1) If Jhe officer be found physically disqualified and if the disability is found to have been cont racjidln'Ihe, line of duty, the candidate is to be reSredi as ^f the date when his promotion accrues, with the rank of the grade to which he would have been promoted had he been found physically qualified.' (3) If the failure to qualify be due to professional^ incapacity ,_or_ to physical disability norco3.ferac^eiin^the line of dut^ the qfflcer^next below him in rank having passed such .examination shall receive the promotion, and the officer becomes entitled to a re-examinatiqn at the end of o ne year, during which period he is suspended from promotion ; and if upon such re-examination he is found to be still disqualified, the law provides that he shall be honorably discharged from the military service with one year's pay.' (3) If the officer was appointed from civil life, or was an officer of volunteers only, or of the militia, called into the service of the United States during the War of the Rebellion, and is found to be disqualified for ' General Orders, No. 41. A. G. , of 1897. No officer will be passed who fails to obtain 75 per cent in each of the written, oral, and practical examinations. Ibid. Graduiiting diplomas of the infantry and cavalr.v school, and of the artillery school, dated not more than five years anterior to examination, shall be accepted as evidence of proficiency, except for pliysical examination. Ibid. ' An officer of the line, on passing tbe examination for a vacancy in the Ordnance or Signal Departments, does not become an ordnance or signal officer by a mere transfer. He must be appointed, confirmed, and commissioned in the usual way. Di.g. J, A. Gen., 550, par. 3. The examination being a statutory condition precedent to such appoint- ment. 3 Section 3, Act of October 1, 1890 (36 Stat, at Large, 563). 236 MILITARY LAW. promotion, for any cause not incident to the line of duty, he becomes entitled to a re-examination at the end of one year, as in the previous case* If he fails to pass such re-examination, he is to be placed upon the retired list.' EETIKING BOARDS. Constitution and Composition. — When for any cause an officer has become physically incapacitated for the performance of his duty, the law authorizes the Secretary of War, under the direction of the President, to / *' assemble an army retiring board consisting of not more than_nine nor less f than five officers, two fifths of whom shall be selectgd from the medical "5> :' co rp p- - ThejDoard, excepting theljfficirs selected from th ej^j^g^icaT corps , I shall be composed as ?m as" may be of seniors in rank to the officer whose I disability, is inquired ~o17""' ~ —'— These boards are constitated in every case by the Secretary of War; their composition, subject to the'^ualificaEion'tEat, ^ye^^ " the officSs. selected J from the medical corps, the board shall be composed as far as may be of seniors in rank to the officer whose disability is inquired of," is left to the „_,-^,' discretion jcd. the convening authority.' ' Procedure. — It is the duty of a retiring board to "inquire into and determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of performing the duties of his office." ' To enable the President to correctly execute the laws respecting the retire- ment of commissioned officers, the investigation should be so conducted as' ; to determine (1) whether the alleged disability exists to such an extent as , to render the officer incapable of performing the duties of his office, and *^ (2) whether such disability is or is not the result of an incident of service.' Eetiring boards are created and their procedure is to a great extent' regulated by statute; where the statutes are silent in respect to procedure' ' Section 3, Act of October 1, 1890 (36 Stat, at L:iige, 562). = Section 1246, Revised Statutes. ' Ibid. * The investigation of a retiring board is not affected by any limitation as to time, aa. is that of a comt-marlial. Sucli a board may therefore inquire into Die matter of a disability however long since it may liave originated. Dig. J. A Gen., 664, par. 2. -'' A retiring board may Inquire into and determine the facts touching ihe nature and occasion of the disability of any offlci r who appears to be incapable of performing the- duties of his office, and shall have such powers of a couri-marlial and of a court of inquiry as may be necessary for tlial purpose. Section 1248, Revised Statutes. It does not affect the authority to retire under Sec. 1251, Rev. Sts , that the incapa- city of the officer may have been found to have resulted from a wound received by himi while in the BotoreJeer service before entering the regular army. Dig. J. A. Gen., 665, par. 4 Under Sec. 1352, Rev. Sts., an officer may, in the discretion of Ihe President, legally be retired by reason of an incapacity resulting from habitual drunkenness. Hid., par. 5. Held that the law— Sees. 1248 and 1249, Rev. Stats.— contemplated an existing and. not a purely prospective and contingent incapacity ; and that an inquiry into w offlcer'a MILITABT BOARDS. 237 they are governed by the same rules as other military tribunals.' The mem- be ^are sworn to the honest and impartial discharge of their duties." The investigation, like that of a court of inquiry, is conducted by the board or, under its direction, by the recorder. The law confers upon an officer appearing before a retiring board the right to " a,^j,§,{idjair Rearing" ; ' he is therefore entitled Jt2_th§,^rivilege of beingrepresented by counse],^and of cross-examining the witnesses summoned to testify as to his disability. He may also introduce testimonyj^jrebuttal, and at the close of his case may submit a s tatement res pecting the ch aracter and causes of_his__disability.' Record. — The record, which is kept by the recorder under the direction of the board, should show affirmatively that the board has jurisdiction of the case investigated by it, and that the requirements of the several statutes regulating its procedure have been fcilly complied with. It is authenticated by the signatures^f_ the me mbers and recorder , and is transmitted to the convening authority for the action of the President. Like the records of ot her mi litary tribunals, it may be returned by the reviewing authority for r evision, or for further inquiry as to the nature and extent of the disability alleged, or for a reconsideration of the findings of the board upon the ques- tion of incapacity. Approval of Finding. — The _ finding of a retiring board is in all cases " in^4J^£jaiiiiJfij:j|. a^re commendat ion, and t ill it is ' approved by the Presi- dent ' no retirement can be ordered thereupon." * ^""^ — -— , general efBciency could be pertinent only in so far as it could be regarded as going to show that bis ioefficieucy, if found, was the result of an impairment of health. Dig. J. A. Gen., 668, par. 16. See, also, note Z, post. • The provision of Sec. 1253, Rev. Stats., that an officer shall not " be wholly retired from the service without a full and fair hearing before an army retiring board if, upon due summons, he demands it," may be said to entitle an officer subject to be thus retired to appear before the board (with counsel if desired), and to introduce testimony of his own, and cross-examine the witnesses examined by the board, including the medical members of the board who may have taken part in the medical examination and have stated or reported to the board the result of the same. If the officer does not elect to appear before the board when summoned, he waives the right to a hearing, and cannot properly take exception to a conclusion arrived at in his absence,* Ibid., 665, par. 7. ' Section 1247, Revised Statutes. ' Section 1353, ibid. See, also, note 1, supra. The provision of Sec. 1248, Rev. Stats., giving to a retiring board such powers of a court-martial and court of inquiry as may be necessary to enable it to inquire into and determine a question of alleged dis- ability, does not authorize such a board to entertain a charge of military offense as such, or to try an officer. Dig J. A. Gen., 664, par. 1. fl«/(i that the "cause" of " incapacity" intended in Sec. 1249, Rev, Stats., wa=! a physical cause ; that moral obliquity was not had in view ; and that the matter of the financial integrity of the officer was beyond the jurisdiction of the board. So held thnt the board was not authorized to recommend the retirement of an officer becau.se he did not pay his debts. Held also that the inability of a disbursing officer to furnish a bond when duly required to do so was not sufficient ground for his retirement. Ibid., 667, par. 15. ' Dig. J. A. Gen., 665, par. 8. * It is held by the Attorney-General (16 Opins,, 20) that where an officer of the Navv had been retired without havme had, through no fault of his own. the full and fair h-^aring before the hoard to which he was entitled by Sec. 1455, Rev. Sts„ and the vacancy on the active list occasioned by his retirement bad not been filled, the President would be authorized to revoke the order of the retire, ment so that the officer might have the proper hearing before final action in his case. ^ 'K A ..! 238 MILITARY LAW. Sach finding, however, when " approved by the President is conclusive as to the facts. The board finds the facts and the President approves or disapproves the finding, biit tljg^ lawd^es-not jsmpower him jbo mo dify t he findmg^or^ t^-^ubstitute a different one. There is here a judicial power vested in the two and not in the President acting singly, and when the power has been once fully exercised it is exhausted as to the case." ^ Action in respect to retirement of an oflBcer is completed by the issuance of an order by the President, in accordance with the approved action of the board, placing the officer on the retired list or wholly retiring him from service. Eetired officers (except as otherwise provided by, law) " do noL-hold piblic^^offiee,' They are in fact pensioners. The position and pay given them constitute a form of pension the rate or amount of which is deter- mined by the rank held by them at the date of their retirement. They ex- ercise no functions and receive no emoluments of office, but are pensioned for past faithful services or disabilities contracted in the line of duty. " Their condition and the status of a public office have no characteristics in common.' An officer " wholly retired " in conformity with the approved proceedings of a retiring board ceases to be an officer of the Army, and can only be restored thereto in pursuance of an appointment by the President with the \ advice and consent of the Senate. ' \ BOARDS OF SUKVBT. ■ Jurisdiction. — A board of survey is a tribunal created by the Army Eegulatious,' and called intobeing_ by a post or depi'artment^^commander ' __j^ for the purpose of investigating questions of responsibility arising in connec- / tion with, the receipt^, issue, or distribution of public property, or a similar question. in-JBgard^to its^use or preservation. Not being created by statute , ' boards of surv ej_are without power to calj^ wit nesses , or to examine them under oath^shpuld they voluntarily appear.' They Tan, acE only upon"?vi- 1 Dig. J. A. Gen., 668, par. 18. See, also, U. 8. vs. Burcliard, 135 U. S., 179. » See Sections 12,i9, 1260, and 1860, Revised Statutes, and the Acts of Jane 16, 1880, (21 Stat, at Large, 113,) Aug. 6, 1894, (28 ibid., 235,) July 31, 1894, (38 ibid., 205,) and June 3, 1896 (39 ibid., 305). 3 Ibid., par. 19. See, also. People vs. Duane, 131 N. T., 867 ; 20 Opin. Att.-Gen., fiftfi * Miller m. U. S., 19 Ct. Cls , 338. = See parasiraiihs 708-733, Army Regulations of 1895. « See par. "709, A. R. 1895. ' A board of survey is not a court and cannot legally exercise the powers expressly vested by statute in courts-martial or courts of inquiry. It is no part of tlie province of a board of survey to convict of crime. Where such a board, in fixing upon nn officer a pecuniary responsibility for the loss of certain subsistence stores, expressed incidentally the opinion that the same had been stolen by a certain soldier, held that this opinion could not operate as a finding of theft, or constitute authority for the stopping against the pay of the soldier of the value of the stores. Dig. J. A. Gen., 179, par. 1. There is no statute or regulation authorizing the swearing of a board of survey or its members, nor indeed is it necessary or suitable that such a body, not being a court, MILITARY B0ABD8. 239 dence submitted to them in the form of affidavits by the parties to the investigation. Theymay also examine the contents of packages, verify their correctness^ and report the condition of stores submitted to them for exami- nation.' Like other military tribunals, the power of a board of survey is restricted to a recommendation, based upon the evidence submitted to it, in respect to the question of responsibility referred to ib for examination. Constitution. — A board of survey will be called by the commanding officer of the post or station. It will be composed of three officers, exclusive of the commanding officer.and tho se who are interested, if that number .be j / present for duty; otherwise of as many as are so present, exclusive of .the />^ c ommanding^ and interes ted officers ; or if no ne bub the commanding officer and interested office rs be presen t f or dutyj then pj the. commanding j^fficer. When only the responsible or interested officer^ispresentjjievn]^ tute himself a. board of survey, but wiU f umish the department commander his certiflcate of facts and circnmstances, supported by affidavits of enlisted men or others wEo afe"cognizanTthereof . Should a case thus presented. not be considered satisfactory, or in a case in which only interested officers with opposing interests are present for duty at the post, the department com- mander may make the necessary investigation." Procedure. — A board of survey must fully investigate matters submitted to it. It will call for all evidence attainable, and will not limit its inquiries to proofs or statements presented by parties in interest. It will rigidly scrutinize the evidence, especially in cases of alleged thef b or embezzlement, and will nob recommend the relief of officers or soldiers from responsibility unless fully satisfied that those charged with the care of property have per- formed their whole duty in regard to it. In no case, however, will the report of a board take the place of the evidence required in paragraph 682.' Evidence. — The party responsible for the property to be surveyed will in all cases furnish the original certificates or affidavits upon which he relies should be specially sworn. Dig. J. A. Gen., 179, pa;-. 2. Its members act upon the sanction of their respective oaths of office. ' For example, it investigates and determines questions involving the character, amount, and cause of damage or deficiency which public property may Lave sus- tained in transit, store, or use, and wliich is not the result of ordinary wear and tear of the service, imd reports the investigation made, its opinions thereon, and fixes responsibility for such dMraage or deficiency upon the proper party. It makes inven- tories of property ordered to be abandoned when the articles have not been enumerated in the orders for abandonment. It recommends the prices at which damaged clothing may be issued, and the proportion in which supplies shall be issued in consequence of damage or deterioration that renders them, at the usual rate, unequal to the regulation allowance, fixing in each instance responsibility for actual condition. It verifies the discrepancy between invoices and the actual quantity or descripti(m of property trans- ferred fiom one officer to another, fixes definitely amounts received for which the rticeiviug officer must receipt, and asceitains, as far as possible, where and how the discrepancy has occurred. It inventories and reports the condition of property in the possession of deceased officers as provided for in paragraph 84. » Par. 709, A. R. 1895. • Par. 710, ibid. Army Regulations of 1895. / 240 MILITABT LAW. to relieve him from responsibility, and the number of daly attested copies thereof required by a board of survey to accompany its proceedings. ' A board of survey has no power to administer oaths either to its mem- bers or to witnesses before it, but it should hear in person or by letter all persons concerned in the sabject-matter before it." No Power to Condemn. — " A board of survey cannot _condemn public property. Its action is purelyjadvisory. It is called for the purpose ^of a^ertaimng and reporting facts, submitting opinions, and making recom- mendations upon questions of responsibility which may arise through acci- dent, mistake, or neglect";' the power to condemn being vested, in ac- cordance with Section 1341 of the Eevised Statutes, in officers specially empowered by the Secretary of War for that purpose. Record. — The proceedings of a board of survey will be prepared in triplicate and signed by each member who concurs in the finding. Should a member not concur, he will submit a minority report, to be embodied in the record immediately after the majority report and signed by the dissent- ing member. The proceedings will then be submitted to the convening authority for approval or disapproval.'' Approval, Confirmation, etc. — "When the value of the property submitted for survey or the loss or damage to be inquired into does not exceed five hundred dollars and the interested officer does not request the department commander's action, the proceedings of the board will be considered com- plete for submission as a property voucher upon the approval of the con- vening aathority. One copy will then be forwarded to department head- quarters and the others delivered to the officer accountable.^ Should the proceedings be disapproved by the convening authority, or should the value of the property submitted for survey or the loss or damage to be inquired into exceed five hundred dollars, or whatever the amount involved, should the officer pecuniarily interested request it, the proceedings in triplicate will be forwarded to the department commander for review, and with his action are complete. One copy will then be filed at department headquarters and the others sent to the accountable officer. But all pro- ceedings of boards of survey, whatever their nature or the amounts involved, are subject on call to the approval or disapproval of the department com- mander or such other action on his part as the merits of the case or the in- terests of the Grovernment may in his opinion require.' ' Par. 711, A. R. 1895. ' Par. 712, A. R. 1S95. See, also, note 7, page 238 A board of survey has no legal capacity to swear persons attending before it as witnesses ; nor is it within the province of an executive order to authorize such a board to administer an oath either to itself or to a witness. Dig. J. A. Gen., 179, par. 2. A board of survey, though it may not swear witnesses, may receive and file with its report affidavits of persons cognizant of facts under investigation. But such a board would not in general be justified in ch.lrging a soldier with the value of public property lost or damaged, upon the affidavit nlone of an interested party — as, for example, the officer responsible in law for such property. Ibid., par. 3. = Par. 713, A. R. 1895, * Par. 714, ibid. ^ Par. 715, iUd. « Par. 716, ibid. MILITAMY BOARDS. ~ 241 Properly agprojed^groceedings of boards of survey may be submitted as vouchers ta^operty returns. Tliey are not to be consMered as conclusiye uStil acce pted , by the Secretars_of War. Until then they areto be regarded simply as the opinions and recommendations of disinterested officers, to aid in the settlement of questions of accountability between the Government and the individuals concerned. If, ou examination in the proper bureau, they exhibit serious errors or defects either of investigation or of finding, they will not be accepted as sufiBcient vouchers, and the oflficer submitting them will be daly notified, that he may have opportunity to make explanations or appeal to the Secretary of War.' Boards of Survey in Cases of Desertion. — Whenever a case of desertion occurs, the Eegulations require that a board of survey shall " be called to ascertain whether he has lost or abstracted any articles of Government property, and if so, to determine the money value of the same. The value of the articles thus found to be missing will be charged against the deserter on the next muster and pay roll of his company, which will be accompanied by a copy of the board's report. A copy of so much of the proceedings as •relates to the property charged on any roll will' accompany the return to which the property pertains. The board will also fully investigate the cir- cumstances attending desertion, especially the causes which induced it, and make a separate report in each case of its investigation and conclusions thereon, which will be transmitted to department headquarters through -intermediate channels." " ' Par. 718, A. R 1895. The proceediugs of a. boaid of survey which recommends the relief of officers aud enlisted meu from responsibility should riot be approved uuless full aud careful inve-stigatiou and convincing proof to sustain the board's findings ap- pear. Par. 717, A. R. 1895. At posts or stations not under the control of department commanders commanding officers will be governed by tliese regulations in convening boards of survey and acting upon their proceedings, but in cases referred to in paragraph 716 will forward the papers to the chiefs of bureaus to which the property pertains. Ibid., par. 719. Separate proceedings of boards of survey will be had for each sta£E department con- cerned. Ibid., par. 730. Whenever a board recommends a stoppage against an enlisted man and the recom- mendation is approved, the convening authority will cause a copy of the proceediugs to be furnished to the company commander, who will chai-ge the amount on the next m'uster and pay rolls of the compitpy. Ibid., 721. If an inspection of property follows the action of a board of survey thereon, one copy of the proceedings will accoinpany the inventory and inspection report whicli is trans- mitted as a voucher to the officer's returns, and another, with the inventory and inspection report, will be filed by the officer with his retained papers. Ibid., par. 723, For private property of officers or enlisted men lost or destroyed in the military service, without fault or negligence on the part of the claimaint, " where the private property so lost or destroyedwas shipped on board an unseavvorthy vessel by order of any officer authorized to give such order or direct such shipment, " or " where it appears that the loss or destruction of the private property of the claimant was in consequence of his having given his attention to the saving of the property belonging to the United States which was in danger at the same time and under similar circumstances," compensation may be made under the provisions of the Act of Congress approved March 3, 1885.* Proceedings of a board. of survey will, if possible, accompany each application under this Act, showing fully the circumstances attending the loss. Ibid., par. 733. . ■ " Par. 115, A. R. 1895. Department commanders will carefully consider the special * 23 Stat, at Large, 250. 2*2 MILITARY LAW. The purpose in convening this board is twofold: (1) To ascertain the exact accountability of the soldier in respect to the Government property in his possession. This with a view to fix the responsibility therefor and to- _ I determine whether, in addition to a charge of desertion, the offender shall be I charged with the loss or abstraction of property. (3) To ascertain if ■ possible the exact cause of desertion in every case. This with a view to dis- \ cover the causes of desertion, generally, in the Army, and thus to enable a ■ resort to be had to such remedial or preventive measures as will be calculated to diminish its frequency or prevent its occurrence. Boards to Determine the Character given to Discharged Enlisted Men. — The law requires that a soldier, when honorably discharged at expiration of service, or for other cause not involving a status of dishonor, shall be furnished with a formal certificate of discharge, signed by his post com- mander. This instrument contains a certificate by the company commander of the discharged soldier in respect to the character borne by him during the period of his enlistment. " The company commander will, before submitting the discharge certifi- cate to the proper oflacer for signature, inform the soldier of the character he intends to give him. Should the soldier feel that injustice will be done him thereby he may at once apply for redress to the post commander, who will immediately convene a board of officers to determine the facts in the case, and will briefly note the finding of the board, if approved by him, on the discharge certificate. But in all cases where the company commander deems a soldier's services unfaithful, he should whenever practicable notify the soldier, at least thirty days prioj- to discharge, of the character which he intends to give, in order that the soldier may have ample opportunity to \ apply for and be heard before the board." ' " This board may be called upon the application of the post or company commander, and if by the former the department commander shall appoint it. The character given by the company comjaander,-- also the character \ found-hythe board, will be noted on the muster-roll." " " The proceedings of the board, showing all the facts pertinent to the / inquiry, with the views of the intermediate commanders indorsed thereon, ( will be transmitted for the consideration and action of the "War Depart- j ment."' I reports made in accordance with tne foregoing paragraph, and on or before the 1st of August of each year forward to the Adjutant-General of tlie Army reports of the deser- tions whicli have occurred within their commands during the preceding fiscal year, with an expression of their views as to the causes of the same and the measures which should be tnken to prevent their recurrence. Commanders of posts and oflBcers in charge of recruiting stations will take prompt action to arrest all deserters amenable to trial and punishment Par. 116. A. R. 1895. ' Par. 148, A. R. 1895. See, also, the Fourth Article of War. 2 lUd. ' Ibid. The cause of discharge and the soldier's age at its date will be stated in the MILITARY BOARDS. 243 Other Forms of Discharge. — A. dishonorable discharge is a discharge expressly imposed as a punishment by sentence. Such a discharge is held also to be involved in a sentence " to be drummed out of the service." It is oillJjS.S-SSai§a£g.$hat a dishonorable jjiisbharge-can. be authorized. Being a punishment, it cannot be prescribed by_aii^ rder. In a case of this dis- charge ThewOTdT'^^ltiSionoraWy^'Msniiert^^ the word " discharged " in the certificate, and it is added that the discharge is given pursuant to the sentence of a certain general court-martial, specifying it by reference to the order by which it was constituted.' l)ody of the discharge certificate. His character will be accurately described at the bot- tom of the certificate, but if not sufficiently good to allow ot his re-enlistment, that por- tion of the certificate relating to his character will be cut off. The words " Service hon- est and faithful " or "Service not honest aud faithful," as the case may be, will be entered under "Remarks" in the military record on the back of the discharge certificate, and will also be noted on the final statements. Par. 148, A. R. 1895. See, also, the Fourth Article of War. The final statements required by par. 141, A. R. 1895, to he furnished with the dis- charge, constitute no part of the discharge: the discharge is complete without them. Dig. J. A. Gen., 359, par, 17. The statement of " character" appended to the certificate is no part of the discharge. This description is devolved by par. 148, A. R. 1895, upon the commanding officer whose duty it may be to make out the discharge. The Army Reguliitions do not give to his superior any authority over the subject. (See G. O. 74, H. Q. A., of 1881.) Ibid., par. 18. ' Dig. J. A. Gen. 361, par. 25. Seld that an executed dishonorable discharge was an absolute expulsion from the Army, and as such did not merely terminate the particular enlistment, but covered all previous uuexecuted enlistments of the soldier, if any. Ibid., par. 26. A third species of discharge, recently recognized, is Diarharge viithoiit /wnor. The causes and occasions for and upon which this form of discharge may be resorted to are defined in par. 151, A. R. 1895. It is employed in cases where there has been no sentence adjudging a dishonorable discharge, but where the discharge awarded is induced by conduct or circumstances not honorable to the soldier — where his status is not one of real honor, as where he has been sentenced to a term of imprisonment in a penitentiary by a civil court ; so where the soldier has mutilated himself in order to obtain a discharge, and it is deemed expedient to discharge him without bringing- him to trial. Held that the summary discharges given during the late war for causes tainting their character were of this kind, altliough not known by the name of "dis- charges without honor," or by any other particular name. (Sometimes this discharge is given upon the remission of a sentence. See S. O. 169, A. G. O., of July 26, 1893.) Ibid., par. 30. The ground for this discharge set forth in par. 151, A. R.— disqualification for ser- vice, physically or in character, through his own fault — is a disqualification resulting from the acts and habits of the soldier, and cannot fairly be established by previous convictions. Ibid., 362, par. 31. _ Under sec. 4 of the Act of June 16, 1890, the President may, in his discretion, per- mit a soldier to purchase his discharge even if his service has not been faithful. This section does not — as do sec. 1 (relating to pay) and sec. 3 (relating to discharge and furlough) — prescribe as a condition to receiving its benefits that the antecedent service shall have been ' ' faithful. " Ibid., par. 33. See, also, the Fourth Article of War. CHAPTEE XV. EVIDENCE. The Judicial Ascertainment of Facts. — The methods which are employed by courts of justice to ascertain the facts — that is, the truth — respecting any past transaction closely resemble those resorted to by an individual for a similar purpose. If A desires to ascertain whether a particular act did or did not take place, he addresses himself to those who were in a situation to witness the occurrence itself, and so endeavors to obtain from each person present his version of the occurrence. From the testimony thus obtained he forms his conclusion as to whether or not the act took place. In the course of his investigation, however, he finds that all who were present and witnessed the occurrence as bystanders do not give testimony of equal importance or value. Some, liaving greater powers of observation or better memories than others, give in consequence more valuable testimony. Some of the witnesses being children or persons of weak or unsound mind, are without the requisite mental capacity to observe facts or to appre- ciate their relations to each other; others, by reason of their bad character, are not regarded as worthy of belief by their fellow citizens ; still others were insane or quite under the influence of intoxicating liquor at the time of the occurrence, and so were incapacitated from observing. A therefore rejects some of the statements as entirely untrustworthy; to others he attaches weight in proportion to their worthiness of belief, and so endeavors to reach a conclusion as to the truth of the occurrence or event which was the orig- inal subject of his inquiry. Evidence. — Tlie__term evidence is in general _ applied to that which tends to render evident or clear. ' fo^t^^legalacMptationJ^a-tgESL^Ppliss to and inc lndes all matters of fact which a court ^Justice j)ermits to be sub- mitted tojthe jury, in the trial of a j;ase, with a view to prove or^Tsprove the existence of a fact in issue." 1 1. Best on Evidence, § 11. ' Tlie Latin evidentia and the French evidence are commonly restricted by foreign jurists to those cases where conviction is produced by the testimony of the senses : that which is known as evidence to the English law is discussed by the canonists and civil- ians under the head probatio, and by French writers under that of preuve. Ibid., § 11, note. 244 EVIDENCE. 245 How Obtained. — Evidence is obtained by the application of a system of rules, partly statutory and in part derived from the common law, called rules of evidence. The facts so presented are derived from the testimony of witnesses who have observed them, or from documents relating to the case, the production of which has been compelled by due process of law.' Witnesses. — Witnesses^ are persons who appear in court in obedience to / , appropriate summons and there relate, under the sanction of an oath, such „-- facts pertaiWng' to a "particular case"asth6j have become cognizant of th?.Q":g lLthe^ med ium of their, jgns^. ' . ~" ~"" Purpose of Rules of Evidence. — The rules of evidence^ have to^ do with , ■ (iaterminingjvhat is called the cow^g^C£,of3i.toesses ;^ that is, of deciding / ' whether a particular person'shall' beperrnitted to testify at all ; and with the j^,^ .exclusion of certain- testimony from consideration of the court upon the/ ground that it is likely to mislead and confuse, rather than to make clear; the issue referred to it for trial. They also determine to a certain extent the credi MKti f of witnesses, q r the weight that is to be attached to their testimony. WITNESSES. Duty of Witness to Testify — Appearance. — The giving of testimony in • an action at law is an important public duty, due from the individual to the State of which he is a citizen. In a criminal case every person upon whom a subpoena has been duly served must appear and testify, or render himself liable to punishment for contempt.' Appearance of Military Persons. — The attendance of military persons is secured by the issuance of orders from the proper military authority. These orders are based upon the formal request of the court or the judge-advocate, and a failure to appear in obedience thereto constitutes, if unexplained, the offense of disobedience of orders, and is punishable as such. Where^ the / witnessJsjtationM at^he poat Qi;,place at which,. the court sits, his_ attend- ^ ance is obtaingci, by a, forrnal notification to appear signed by the judgcr / advocate^. To avoid misunderstanding, such notification should reach the / witness thronghjbhe propeFmJTTSy channels. ■"™~~-— — — •~..--^-. ._... Appearance of Civilians. — To obtain the attendance of a civilian as a witness a f OTmal^^uiipaena ' is issued by the judge-advocate, in the name of the. Presi.^ggt,, directing him to appear in court as a witness on a day named. If the witness has in his possession a book, paper, or other document ' According to Professor Greenleaf , the term includes " all the means by which any . matter of fact the truth of which is submitted to investigation is established or dis- proved." Grcenlenf on Evidence, § 1. » U. S. vs. "Wood, 14 Pet, 445; Barker m. Ooit, 1 Root (Conn.), 225. ' I. Qreenleiif, §g 311-319, and cases cited ; U. S Constitution, Amendment 6. ■• Tliis writ is known as the subpcena ad ieatiflcandum, to distinguish it from the writs next lo be described. 246 MILITABY LAW. material to a cause as an instmment of evidence, a writ called a sutpmna duces tecum ' issues commanding him to appear in court on a day certain, and to have with him the particular paper or document named and described in the subpoena. If the witness be a prisoner in jail, his presence is secured by the issue of a peculiar form of the writ of habeas corpus called habeas corpus ad testificandum.^ Service of Process. — Writs of subpoena for the attendance of civilian wit- nesses are usually issued in duplicate.' They are issued by the judge- advocate in the name of the President of the United States, and are addressed to the witness whose attendance is desired. Being in the nature of a command to the witness himself and not, as is the case with judicial process generally, a command to the officer charged with its service,'' a subpoena may legally be served by any competent person, civil or military, but will in general be ^preferably served by an officer-orAnon-commissioned officer^ifthe Army.* This for the reason that none of the appropriations for the support of the military establishment are applicable to the payment of fees or expenses incurred in connection with the service of process.' Method of Service. — To constitute service, the original is shown to the w itness, o r, if two copies~are furnished, the duplicate is delivered to him; a certi_ficate of _seryice^k ^^^^ indorsed upon the originaTwnt, "which" iS"" returned to the judge-advocate by the officer or other person charged witk its service. The personal service thus described constitutes 'the legal service upon which process of attachment may be based should the witness fail to ' It haa been decided in a number of cases that the production of documentary evi- dence only can be compelled by the issue of this writ, and that ils effect does not extend to the production of objects, or things, properly described as real evidence. ' As co\irts-marl ial have no power to issue any form of the writ of habeas corpus, this method of securing the attendance of a witness in confinement or under restraint is not available to military tribunals. ' For form of siibpoeua, see Appendix. *I. Greenleaf, § 315; 34 Am. and Eng. Encyc. of Law, 165, note 4. 'Dig. J. A. Gen., 753, par. 13. A summons may legally be served either by a mili- tary or a civil person, but will in general preferably be served by an officer or a non-com- missioned officer of the Army. A judge-advocate or a commanding or other officer to whom a summons is sent for service will not be authorized, by employing for the purpose a U. 8. marshal or deputy marshal or other civil official, to commit the United States to the payment of fees to such official. The action, however, of a judge-advocate in employing a deputy marshal to serve a summons, where apparently the service could not otherwise be so effectually or economically made, has in a few cases been so far ratified by the Secretary of War as to allow, out of the appropriation for army contingencies, the payment of a small and rea- sonable account of charges rendered by such official. Ibid. 'There is no fee or compensation established or authorized to be paid, by statute or regulation, for the service of subpoenas for the attendance of witnesses before civil courts. Neither a commanding officer nor a judge-advocate is authorized to employ a civil official or any civilian for such service, or to commit the United States to the pay- . ment of any compensation to such a person. But in a case where the employment of a civilian for such purpose had been resorted to, and it clearly appeared that to employ him was the most economical as well as effectual course open to the officer, ndvised that his reasonable compensation be paid out of the appropriation for contingencies of the Army. Jbid., 760, par. 39. EVIDENCE. 247 appear in obedience to the summons.' In the summoning of witnesses before courts-martial, what_is called^constructi2e_^^ that is, service hy^ publication or in any other manner than by actual personal delivery of process, is not permitted ; nor is it regarded as sufficient service upon which to base a writ of attachment. P^gonaljervice may be waived, however^ by / / the witness, and is so held to be waived when he appears in obedience to any summons or notification less formal than that above described. Operation of the Writ. — The power to issue writs of subpoena is vested \ by statute not in the court-martial itself but in the judge-advocate, who is \ "^ not subject to the territorial restrictions in respect to their issue which aie_J imposed by law upon the civil courts of the United States. A court-martial subpoena will therefore run anywhere within the territorial jurisdiction of the United States," and is operative beyond such territorial limits to the extent of conferring authority for the attendance of the witness and the payment of his fees. A writ of attachment^ howe-yer. will not run bevond Z^' t heJerritorial l imits o f the State , Territory, or District in which the court/ may be o rdered to sl L.' Time of Service. — The service of a subpoena upon a witness ought always to be made within a reasonable time before trial, to enable him to put his affairs in such order that his attendance upon the court may be as little detrimental as possible to his interest. On this principle, a summons in the morning to attend in the afternoon of the same day has been held insufficient, though the witness lived in the same town and very near the place of trial. In the United States the time is generally fixed by statute, requiring the allowance of one day for a certain number of miles of dis- tance from the residence of the witness to the place of trial; and this is usually twenty miles. But at least one day's notice is deemed necessary, however inconsiderable the distance may be.' ' Section 1302, Revised Statutes. ' At whatever place a. court-martial may be assembled, a summons for the attend- ance before it as a witness may legally be issued to and served upon a person civil or military in any other part of the federal domain. Dig. J. A. Gen., 753, par. 13. ' Section 1303, Revised Statutes. * The allowances and per diem compensation of civilianssubpoenaed and attending as ■witnesses before courts-marl ial are fixed by paragraphs 963-965, A. R., 1895. Such wit- nesses are entitled to these fees though they may not be called upon to testify; it is only essential that they duly attend Civilian employees of the United States are not entitled to the per diem allowance specified in par. 963 A. R., of 1895, but only to the reimburse- ment of the expenses specified in par. 963. Di.s:. J. A. Gen., 759, par. 34. The compensation allowed by the Secretary of War for witnesses summoned as experts in hnndwriting before a court-martial (see Smith vs. U. S., 34 Ct. CI., 309), held payable .out of the annual appropriation "for compensation of witnesses attending upon courts-martial and courts of inquiry." Ibid., par. 35. Held that duly attending by a civilian witness before a duly authorized ofiBcial to give a deposition to he used in evidence on a military trial was to be regarded as practically equivalent to attending a court-martial, and that the deponent was entitled to be paid the usual allowances (i.e., the same as those of witnesses appearing before the court) out of the regular appropriation for the "compensation of witnesses attending before courts-martial," etc. Ibid., par. 36. See, also, Appendix, and Circ. No. 9, H. Q. A., 1883 ; Manual for Courts-martial, pp. 38, 39. 248. MILITARY LAW. THE WKIT OF ATTAOHMENT. Nature and Purpose. — When a person has been lawfully summoned to appear in court on a day certain, as a witness in a case there pending, and fails to appear in obedience to such summons, he is said to be in contempt of the court from which the subpoena issued, and such court is authorized, by the issue of some form of compulsory process, to compel his attendance. The process usually resorted to for this purpose is_caJled the wrii of attach- ment, which auth orizes the officeiL charged with its^ execution to arrest the ^rson named and compel his .a.ppearance in court, using such force as may be "necessary to accomplish that purpose. The courts of the several States and the crvil courts of the United States are each authorized, by appropriate enactments, to make use of compulsory process to obtain the attendance of witnesses who have failed to appear in obedience to lawful summons. Application in Court-martial Procedure. — Section 1202 of the Eevised Statutes ' confers a similar power upon the judge-advocates of courts-martial. The terms of the statute are peculiar in that the power is vested exclusively and independently in the judge-advocate and cannot be exercised by the j court. The writ of attachment is, therefore, not a writ or process^ of the / court, but simply a compulsory instrumentality placed at^e disposition of / tJKi judge-advocate, as the prosecating official representing the United ' States."' Limitation on the Power to Issue Writs of Attachment. — It has been seen that the writ of subpoena lawfully issued by the judge-advocate of a court-martial would have operation anywhere within the territorial jurisdic- tion of the United States.' The power of the judge-advocate to issue writs ^ of attachment is much less extensive, being restricted by the express terms of the statute conferring it' to " the State, Territory, or District in which such court' shall be ordered to sit." Within such State, Territory, or ' Every judge-advocate of a court-martial shall have power to issue the like process to compel witnesses to appear and testify which courts of criminal jiu'isdiotion wlthia the State, Teriitory, or District where such military courts shall be ordered to sit may lawfully issue. Section 1203, Rev. Stat; Act of March 3, 1863 (12 Slat, at Large, 754). '' Dig. J. A.. Gen., 757, par. 27. The authority to issue process to compel civilian wit- nesses to appear and testify is vested, by Sec. 1202, Rev. Sts., in "every judge-advocate of a court-martial." A judge-advocate of an inferior court would thus be empowered for the purpose equally with the judge advocate of a general court. The present statute, however, (unlilce the original form,) does not extend the authority to recorders of courts of inquiry. Ibid. Or to the summary court. Manual for Courts-martial, 77. Article 42 of the Rules for the Government of the Navy contains the requirement that "any person" who "refuses to give evidence" may be punished by tlie court-martial by imprisonment " for any time not exceeding two months." Sec. 1624, Rev. Stat. ^ See the article, ante, entitled Service of Process. ■" See note 1, supra. Sec. 1202, Rev. Sts., authorizes only judge-advocates of courts- martial to issue process to compel the attendance of witnesses. The court itself, general or inferior, has no such power. Dig. J. A. Gen., 468, par. 33. Held that the statute could not properly be construed" as authorizing the issue of an attachment to compel a witness to attend before a commissioner or otlier person and give his deposition. Ibid., 757, par. 29. r EVIDENCE. 249 District, therefore, a witness may, by the issue of a writ of attachment, be compelled to appear in court ; without such territorial limits, however, the statute above cited would seem to vest no power in the judge-advocate to compel such appearance in court. Service of Process of Attachment. — To authorize a resort to an attach- ment there must have been a formal, summons, .duly issued .^nd served upon \ ffiTwitness and not complied with.' The judge-advocate kauthorizgji. only t/ to w{ (1) th e order convening the court for the trial of tfae f^^^nsgd ; (3) a copy of the"cKarges and specifications , a s refer red for trial; (3) the original/ ' Dig. J. A. Gen., 757, par. 28. ^ Ibid , 46:-f, par. 34. " Miuiiial for Courts-martial, 34, par. 6. * Ibid.; id., 758, par. 83; par. 933, A. R. 1895. A judge-advocate cannot properly direci au attacLmeut to a U. S. marshal or deputy marshal or other civil official. Dig. 758, p U-. b2. * Manual, etc., 34, par. 5. «Dig. J. A. Gen., 758, par. 33. ' Manual, etc., 84, par. 6; par. 933, A. R. 1895. A judge-advocate, having attached a civilian witness and had him brought to the place of tjfie court, detained him one hour in the guard-house before bringing him before the court. For this he was indicted (for false imprisonment) in a U. S. District Court in Texas. Held that his action was war- ranted under Sec. 1303, R. S., and advised that the Attorney-General be requested to cause the proseciition to be discontinued. Dig. J. A. Gen., 463, par. 35. 250 MILITARY LAW. subgoegj,^.wilJiJJie_affidavitsjmd^ertificat service; (4) evidence, in the forni of an ^ffijdayitiroPi the judge-advocate, that the party has failed and neglected to appear although sufiBcient time has elapsed, that he. is a material an3~iiecessary witness, and that^ iip>^lid, excuse has been ofEeredfor^such iailiiFeTfo appear/ THE KULES OF EVIDENCE. The rules of evidence which prevail in the federal courts are those pro- vided for the guidance of those tribunals by successive enactments of Congress. They consist in general of the rules of the common law as they existed in the several States at the adoption of the Federal Constitution in 1789, as modified from time to time by subsequent Acts of Congress." ' Upon the subject of the execution of process of attachment in militaiy cases, see XII Opin. Att.-Gen., 501; also the directions — based upon the same— of G. O. 93, H. Q. A., 1868. Dig. J. A. Geu., 358, par 32, note 2. Prior to the adoption of the Coustitution, Congress (then the Government) appears to have relied upon the State authorities for the necessary process to compel the attendance of witnesses before military courts. See Resolution of Nov. 16, 1779 — III Journals of Congress, 392. In the British law, by a provision first incorporated in the Mutiny Act in the year 1800, witnesses neglecting to comply with a summons nquiriug their presence at such courts are made "liable to be attached in the Court of Queen's Bench," etc. This provision well illustrates the close connection between the executive and the othef governmental powers in the Brilish Constitution, where the sovereign is a part of the judiciary as well as of the legislature. The fact of the express disliuctiou and separa- tion of the three powers in our own organic law, one result of which has been to leave courts-martial, as agencies of the executive power, quite independent of any review ot control on the part of the U S. courts, has also no doubt availed to preclude the devolv- ing upon the Jederal tribunals ot a power fitly conferred in tlie foreign statute, 4ut which with us'Vould be anomalous, exceptional, and out of harmony with our coustitU' tional system. It may be added, in regard to the exercise of the authority to issue compulsory process as vested in judge-advocates by the Act of 1808, (Sec. 1202, Rev. Sts.,) that the occasions of such exercise have been uufrequent in practice, and no case is known in which such authority has been abused. Ibid. ' In a leading case in the Supreme Court of the United Slates it was held that " the law by which the admissibility of evidence in criminal cases in the courts of the United States is determined is the law of the State in which the trial is held, sis it was wht-n the courts of the United States were established by the Judiciary Act of 1789. The 34th Sec- tion of that Act, declaring that the laws of the several Stales shall be regarded as r\iles of decision in trials at common law in the courts of the United Stales, in cases where they apply, has no application to the rules of evidence in criminal cases. And no State law made since 1789 can affect the rules of evidence in such cases."* U. 8. M. Reid, 12 How., 361; Logan m. U. S., 144 U. S., 263, 300; U. S. vs. Brown, 1 Sawyer, 531 ; U S. m. Dow, Taney, 34; U. S. vs. Hawthorne, 1 Dill., 432; King vs. Worthington, 14 Otto, 44; Moore. m. U. S., 1 ibid., 273 ; Thompson vs. R. R. Co., 6 Wall., 134 ; Hinde vs. "Vattier, 5 Pet.. 400. Judge Curtis in his " Jurisdiction of the United States Courts" makes use of the following language in speaking of the rules of evidence which apply to criminal trials in the federal courts: " I should^suppose the safer rule to be that, in criminal trials, you are to look to the rules of the State except so far as you find they have been modified in any way by Acts of Congress" (p. 244). In the trial of criminal cases removed from the State courts to those of the United States, the rules of evidence in the State courts prevail Tenn. vs. Davis, 100 U. S., 257; contra, U. S. vs. Hammond, 2 Woods, 197; U. S. vs. Block, 4 Saw., 211 ; Conkling's Treatise, 167 ; Moore vs. U. S., 91 U. S., 270 ; II Story on the Constitution, 1789. ivil anfi eriminal cases are substantially the same (TJ. 8. vs. Gooding, 13 iniiK relating especially to criminal cases being derived, as a rule, from joniiiion law. f . * The rules of evidence in civil anri Wheat.. 460) ; the few provision statutes rather than from tlie com EVIDESCK 251 Courts-martial being executive agencies form no part of the judicial system of the United States ; and although Congress has provided no specific rules for their guidance in this respect, and although their procedure is exempted from the operation of the Fifth Amendment to the Constitution, these tribunals should in general follow, so far as they are applicable to military cases, the rules of evidence observed in the civil courts, and especially those applied by the courts of the "United States in criminal cases.' As courts-martial are not bound, however, by any statute in this par- ticular, it is thus open to them, in the interests of justice, to apply these rales with more indulgence than the civil courts — ^to allow, for example, more latitude in the introduction of testimony and in the examination and cross-examination of witnesses than is commonly permitted by the latter tribunals. In such particulars, as persons on trial by courts-martial are ordinarily not versed in legal science or practice, a liberal course should in general be pursued and an over-technicality be avoided." COMPETENCT OF WITNESSES. CREDIBILITY. Competency of Witnesses. — The competency of a witness is his legal /'/ capacity to testify, and is determined by e nactgifiBjg^ol Congress or, in the / (ijjL- absence ofj ufl^LiagSlatiflft.„by„the commonjaw. C ompetency is always' pr e- ] / sumed, and the burden o f proving incompetencxJisS- upon Jiha. party that J asserts i t in the c ase of a particular witne^. The credibility of a witness""! i s his worthin ess of belief, and is determined byJijg„cha]:a&t&ryJ3y. the ac.u.te- \ ' Jc^ ness of his powers of observation, by_ the accuracj_anij£tejitiveness ofjiis f / memory, and b y his capacity to give l_ucid,.expr^sion to facts within higj knowledgeT Questions of competency are determined by tEe^ coiir t. and if ' Dig. J. A. Gen., 393, par. 1. Courts-maitial, in tlie absence of any specific statutory- rules, are in general governed by the rules of evidence of the common law. Ibid., 398, par. 16. Courts-martial should in general follow, so far as applicable to military cases, the rules of evidence observed by the civil courts, and especially the courts of the United States, in criminal cases. Ibid., 893. pur. 1. See 3 Greenl. Ev., sec. 476; Lebanon m. Heath, 47 N. Hamp., 359 ; People m. Van Allen, 55 N. Y., 39 ; 3 Opin. Alt.-Gen.. 343 ; Grant vs. Gould, 3 H. Black., 87 ; 1 McArthur, 47"; Harcourt, 76 ; DeHart, 334 ; O'Brien, 169; G. O. 51, Middle Dept., 1865; G. C. M. O. 60, Dept. of Texas, 1879; G. C. M. O. 3, 53, Dept. of the East, 1880. ' Dig. J. A. Gen., 393, par. 1. Compare the views expressed in G. C. M. O. 33, War Dept., 1872; G. C. M. O. 23, Dept. of Texas, 1873; G. C. M. O. 60, Depti of Cali- fornia, 1873. The rules of evidence should be applied by military courts irrespective of the ranii of the person to be affected. Thus a witness for the prosecution, whatever be his rank or office, may always be asked, on cross-examination, whether he has not expressed animos- ity toward the accused, as well as whetlier he lias not on a previous occasion made a 'statement contradictory to or materially different from that embraced in his testimony. Such questions are admissible by the established law of evidence, and imply no disrespect to the witness, nor can the witness properly decline to answer them on the ground that it is disrespectful to him thus to attempt to discredit him.* Dig. J. A. Gen., 393, par. 3. * See opinion of the Judge- Advocate General, as adopted by the President, in G. C. M. 0. 66, Head- quarters of Array, 1879 ; and compare remarks of reviewing officers in G. O. 11, Dept. of California, 1865 ; G. C. M. O. 81, Dept. of Daljota, 1869 ; G. C. M. O. 8, Fourth MUitary District, 1867. 262 MILITARY LAW. decided adversely the witness is not permitted to testify at all. Questions of cre dibilLty.are^ways determined by tte jury. As a court-martial exer- cises the powers of both judge and jury, its determination of a question respecting either the competency of a witness, or the credibility to be attached to his testimony is final. fDS OF I2 GBOrrNDS •^^^ Grounds of Incompetency. — The principal grounds of incompetency at the common law are: (1) infamjrj (3) want of religious belief; (3) interest in the subiect of litigation, as a party or otherwise ; (4) want of understand - The tendency of legislation in the United States as well as in the several States has been to confer competency by statute, but to permit the disquali- fying cause to be testified to with a view to afEect the credibility of the "witness." INFAMY. Nature of the Disqualification. — The term infamous — without fame or good report — was applied at common law to certain crimes, upon conviction of which a person became incompetent to testify as a witness. This was upon the theory that a person would not commit a crime of such heinous char- acter unless so depraved as to be wholly insensible to the obligation of an oath, and therefore unworthy of credit. The crinies in volving infamy are treason,, felony, and the crimen fals i. As to whether all species of this last are infamous there is disagreement among the authorities. T reason . — Treason as defin ed in the Constitution of the United States is declared to consist only " injevvi ng war again st thsm ^ or in-a.fl}iRvinp- to thpjr enemies i^ giving t hem aid and comfort. " Similar definitions occur in the constitutions of the several States. The essence of the offense is a repudia- tion, on the part of the individual, of his allegiance to the State of which he is a citizen. A person convicted of so serious a crime forfeits, upon con- viction, such rights as attach to citizenship. He denies the obligation of the laws, and properly forfeits the privileges and immunities conferred by them; one of the most important of which is that of testifying, as a witness, in a court of the State in which he occupies the status of a traitor. ■Felony . — "When a person had been convicted of certain crimes at common law he occupied, in consequence of such conviction aind the judge- ment had thereon, a peculiar status called felony. Felony was theref orsj * in strictness, rather a result or consequence of crime than a crime itself. .^myoffCT&e_ which at Common law was punishable_ capitally or with a forfeiture of land and goods was a ^^^o^j^aaA&jge'c&Qncm,;^^^^ thereof ' I Greenleaf, § 327; 39 Am. and Eog. Cyc, 552-564. • ' For a list of States in which such legislation has been enacted see, I. Greenleaf, § 529, note a. K- beortme infam ous "and forfeited a number of civil rights, among them the' capacity to' testify, as a witness, in a court of Justice." Practice of the United States Courts. — It has been seen that the United States, as such, has no common-law jurisdiction. T here is, therefore, no s tatus of felony under the laws of the United _Stajos_uDJ^s.an ^ offense lias been declared felonious or infamous by statute^ or^jmlesj^the punishment attachedjtgreto js^uchJS" to rehdiirone who has undergone it infamous. "What punishments shall be^ considered as infamous may be afEected by chang es of public opinion f rom^one age^ to another. For more than a cen- tury i mprisonment at hard labor in the State prison or penitentiary has been considered as infamous p^unisliment'' in England and America. Such imprisonment, with or without hard labor, is at present considered infamous punishment.'" Crimen Falsi. — At common law the cr imen falsi " was any ofEense inyolying fals ehood and whicii might injuriously afEect the administration o f justice by the lntTO 3ncfio"n~oI'^rsehoor^Qr"jra^ and any person ^'-U' guilty of such an ofEense was properly regarded as incompetent to testify, in / view of such willful disregard of truth and wanton contempt for the solemn sanction of an oath. The offenses included under this head are forgery, / . perjury^ su bornatio n of perju ry,_s^u ppres^^ testimony by bribery, or lir consp iracy to procur e the absence of a witness or to accuse one of a crime, / I Greenleaf, §g 373-381. « Mackin m. U. S., 117 U. S., 850-353 ; Ex parte "Wilson, 114 U. S., 117. In the courts of the United States as well as in those of the several States there is some con- fusion as to the precise meaning of the term felony, and consequently as to what offenses are felouioiis and, as such, involve incompeteacy to testify. In some of the States the rules of the common law still prevail ; in others all grounds of incompetency have been swept away by statute ; between these two extremes falls the practice of the several States of the Union in respect to felony as a cause of disqualification. The practice in a particular State can only be ascertained by an examination of its statutes relating to the competency and credibility of witnesses. In most of the States, how- ever-, it may be said that all statutory crimes not capital are classed as felonies or as misdemeanors accordingly as they are, or are not, punishable by imprisonment in the State prison or penitentiary. Desertion is not a felony and does not render a witness incompetent at common law or before a cou'rt-martial. Nor does the loss of citizenship upon conviction of desertion, under Sections 1996 and 1998, Revised Statutes, have such effect, the competency of a witness not depending upon his citizenship. A pardon of a person thus convicted would not, therefore, add to bis competency. But where it was proposed to introduce such a perscjji as a material witness for the prosecution in an important case, advised tliat it would^e desirable to remit the unexecuted portion of his sentence, if any. Dig. i j;. A. Gen., 399, par. 34. The fact that a party is a public enemy of- the United States, or has engaged in giving aid to the enemy, does not affect the competency of his testimony iis a witness before a cnurt-maitiid. Where testifying, however, in time of war, either in favor of a person in the enemy's service or an ally of or sympathizer witli the enemy, or against a Federal oiRcer or soldier, his statements (like those of an accomplice) are ordinarily to be received with caution unless corroborated. The fact that a party is under a political * disability is -not one which goes to his competency if offered as a witness. So the fact that a witness has been convicted of desertion may impair bis credibility, but cannot affect his competency. Ibid.. 397, par. 13. ' I. Greenleaf, § 373 ; U. S. vs. Porter, 3 Cr. 0. C, 60. 254: MILITARY LAW. and other offenses of a similar character; each of which involves the repudiation, on the part of the individual, of the sanction of an oath and a willful attempt to introduce falsehood and fraud into judicial proceedings, under the guise of testimony and with a view to subvert the ends of jus- tice.' Procedure in Case of Incompetency from Infamy. — hicompetency from infamy is established by the production or proof of the judgment itself . In the case of a person against whom incompetency from infamy is alleged, the incompetency is established by production or proof of the judgment itself." A finding of guilt merely is not sufficient, but the judgment itself must be produQcd. Incompetency so established is not removed by the mere execution of the sentence,' but may be remov edjjjueeversal ofjudg ment o r by pardon .* la the latter case, if the statute imposing the penalty is, in its nature, a rule of evidence and not a measure of punishment only, it has , been held that a pardon will not operate to restore competency, but that a reversal of judgment is necessary ; the power to pardon being subordinate to the paramount authority of the legislature to prescribe rules of evidence as an incident of procedure in actions at law. ' Incompetency based upon convictioa of an infamous offense does not, in general, operate to produce incompetency beyond the jurisdiction in which the conviction was had. Persons infamous in one State are there- fore not necessarily incompetent in the courts of another State or in the courts of the United States." Such convictions, however, may be estab- lished in evidence with a view to affect credibility. INTEREST. Reason for the Disqualification. — It was a rule of the common law that in a civil action a party to the record or one who was interested in the result of the litigation was permitted to testify against his interest, but was regarded as incompetent to give evidence in his own behalf. This by reason of his interest in the subject of the action, based upon the experience of mankind and the belief that any testimony given by a party would be colored by his relationship to the controversy. It was also regarded as expedient, from the point of view of an enlightened public policy, to remove from the path of a witness every temptation to commit perjury. To dis- qualify, the interest must be real and actual and not conditional merely; ' I. Greeuleiif, § 373. » U. S. vs. Biebuscli, 1 Fed. Rep., 213. ' U S TO Blown, 4 Ci-. 0. C, 607 ; Logan vs. U. S., 144 U. S., 263, 302 ; Boyd v>. U S., 143 U. S., 450. * ir, S. TO. Rutherford, 2 Cr. C. C, 528. It is proper to say that the rule above stated is one which is not universally accepted. See I. Greenleaf, § 378, notes 2 and 3. ' Sections 5893 and 5393, Revised Statutes ; Houghtaling vs. Kelderhouse, 1 Parker, 241 ■ American Jurist, vol. xi. pp. 360-362. « TJ. S. vs. Logan, 45 Fed. Rep. , 872. EVIDENCE. 255 the particalar degree of interest that will disqualify in any case being de- termined by the court; tb,e test applied bein^ whether the.jidliQesa-.>aJll " gain or lose by the le ^ s;al one ratioT ] of t iilfii.ijii"'^S""^^'^^i "'' ^ba.f t.Kpj-Ponril will be legal evidence f otot^ agaJn&fcJlim JJ5-SomfiJ^£k^^ " — ajfKcatioii to CiSm^l Cases. — The rule -that interest disqualifies applies in criminal as well as civil cases when the witness has a direct, certain, and immediate interest in the result of the prosecution. The interest may be to recover a penalty, to obtain a reward or other benefit, or to secure immunity from prosecution; the disqualifying interest may also be that of an accomplice or codefendant." Testimony against Interest. — A party is competent to testify voluntarily against himself at any time and,.in_any"case. He may do this under the sanction of an oath, or he may accomplish the same purpose indirectly by means of confessions, or declarations against interest, made out of court in a matter relating to the offense with which he is charged. The Accused in a Criminal Case. — The party chiefly interested in a criminal prosecution is the accused himself, the prosecutor or plaintifE being always the State, which, for reasons of public policy, regards all criminal acts as directed against the peace and dignity of the commonwealth. The party actually injured by the commission of a criminal offense, who is known as the prosecutor, or prosecuting witness, is always a competent, and in most cases a necessary, witness." "With a view to prevent what were known as inquisitorial trials, it has long been the practice at the common law not only to forbid an accused person to testify against himself (except by way of confession, as will presently be described), but to deprive th.e. courts of the power to co mpd such j i esti mony. This right is guaranteed to persons accused^f crime in the Constitution of the United States and in the consti- tutions of the several States of the Union. Competency of Accused Restored by Statute. — The incompetency of an accused person may be removed by a statute permitting him to testify in his own behalf. Such competency to testify is conferred upon persons tried by court-martial by the Act of March 16, 1878, which provides that " jn the trial of all indictments, inforniadaQIls, ■gflffl LBlaints, and other proceedings against persons charged with the commissio n of crimes, offenses , anrl tnia.- demeanors in the 'United ""States courts^ Territorial courts, and courts- ihartial, and courts of inquiry," in any State or Territory, includiag^ the DistfTct of Columbia, the person so charged shall, ajt^jnj ownjre^uest^ but 1 I. Gieeuleaf, g 390. ' I. Greeiileaf, g§ 403, 407. ' U. S. M. Murpliy, 16 Pet., 203; U. S. m. McOann, 1 Cr. C. C, 307; U. S. vs. Brown, ibid., 310 ; U. S. vs. Tolson. ibid.. 3R9 ; U 8. vs. Carnot, 3 ibid., 469 ; U. S. vs. Clancy, 1 Cr. C. C, 13 ; 'U. S. vs. Hare, 1 Cr. C. C , 83. As to informers, see U. S. vs. Wilson, 1 Bald., 78 ; U. S. vs. Patterson, 3 McL , 53. 2^6 MILITARY LAW. nol o therwise, be a comp etent witnessj_ And his failure j^o mak e ,mdh request shall not create an^gresuniptinn a.gainstjirm. ' ' ' The privilege conferred by this statute is that of competency to testify, of which the accused may avail himself or not, at his discretion. If he declines to appear as a witness, the statute provides that his failure to appear shall create no presumption against him ; if he avails himself of the statutory privilege, however, his status is precisely the same as that of any other witness; " he is examined in the same manner by question and answer, he is subject to cross-examination, his competency and credibility may be assailed, and his testimony may be rebutted like that of any other witness.'' > Act of March 16, 1878 (20 Stat, at Large, 30). ^ The Act of March 16, 1878, (20 Slut, at Large, 30,) haying provided that a person charged with the commission of a crime may, at his own request, be a competent wit- ness in the trial, but that " his failure to make such request shall not create any pre- sumption against him," all comment upon such failure must be e.vcluded from the jury. Wilson m. U. S., 149 U. S., 60. Such failure to testify is not to create a presumption of guilt. U. S. vs. Pendergrast, 33 Fed. Rep., 198. When such an accused person elects to testify in his own behalf, his testimony may be impeached. U. S. vs. Brown, 40 Fed. Rep., 487. An accused person cannot testify in his own behalf if incompetent to testify as a witness for any cause. U. S. vs. Hollis, 43 Fed. Rep., 248. Pardon restores competency to testify. Logan »s. U.S., 144 U. S., 263; Boyd vs. U. S., 142 U. S. , 454. But see note 5, page 254, supra. If he waives his privilege as to one act, he does so fully in relation to that act. But he does not thereby waive his privilege of refusing to reveal other acts, wholly uncon- nected with the act of which he has spoken, even though they be material to the issue. Low vs. Mitchell, 18 Me., 372 ; Tillson vs. Bowley, 8 Greenl., 163. ' The testimony of an accused party is compelent only when presented as authorized by the Act of March 16, 1878, chapter 37, viz., when the party himself requests to be admitted to testify. But such testimony is not excepted from the ordinary rules gov- erning the admissibility of evidence, nor from the application of the usual tests of cross-examination, rebuttal, etc. Dig. Opin. J. A. Gen., p. 398, par. 14. See, also, Manual for Courts-martial, p. 40, par. 3. It was formerly an established rule that accused parties could not legally testify, as witnesses before military courts. But, by the Act of March 16, 1878, chapter 37, it is now expressly provided that at trials not only before the courts of the United States, but before courts-martial and courts of inquiry, " the person charged shall, at his own request, but not otherwise, be a competent witness." It is added : "And his failure to make sid. 423, note 6 ; Evans ®s. Baton, Pet. C. C;, 323 ; The Watchman, Ware, 382 ; Miles vs. U. S., 13 Otto, 304 ; Citizens' Bank vs. Nantucket Steamboat Co., 2 Story, 16. Witnesses wlio are prima facie competent, but whose competency is disputed, are allowed to give evidence on their vovr dvi-e to the court upon some collateral issue on which their competency depends ; but the testimony of a witness who is prima facie incompetent cannot be given to the jury upon the very issue of the case in order to establish his competency and, at the same time, prove the issue. Miles vs. U. S., 13 Otto, 304. 2 Cameron vs. State, 14 Ala., 546 ; Com. vs. Mooney, 110 Mass., 99 ; Com. vs. Sturte- vant> 117 Maas., 133 ; Morse vs. State, 6 Conn., 9. 262 MILITARY LAW. ^^. regards emotion or passion, as to anger, hope or fear, joy or sorrow, excite- ment or coolness, and the like. These are matters of every-day occurrence as to which all thoughtful persons form conclusions of fact to which they are competent to testify in a proper case.' Second, the opinion of experts in an .a rt, trade, or profession in which ^they have attain ed^especial_^profi- ciency may, a t the discretion of the court and nnder_jt3.^^.ction, be given in eviden ce. TTKisTg^permitted f or the reason that the opinions in question are technical or scientific in character and are based upon experience that is beyond the knowledge or experience of the average jaror. Under this head, for example, fall opinions as to the efEects of particular poisons ; that is, certain symptoms having been observed, expert opinion may be received as to the poisons that would produce such efEects. In general, certain facts or efEects having been established in evidence, the testimony of experts may be admitted as to the causes which would have produced such efEects, or as to the laws of nature applicable to certain causes to produce particular effects." The introduction of expert witnesses, however, is of the rarest occurrence in the procedure of courts-martial. Procedure. — The partyjvhg_intro.diiges_expert witne sses must show that they are experts in fact ; that is,, that they actually possess the technical or scientific knowledge which will assist the jury to a correct understanding of the facts in a case.' Hav ing established their c ompetency and the necessity for their appeara nce, they ma y give opinions as to CCTtain facts, or may testify in anaTypr f," a, hypn thfit^ql question, ^ grg.gd upo n by the p a rties an d ap£roved_by,JJifi_fiQJlxt, the answer to which is calculated to afEord the jury the assistance of which they stand in need.* THE RULES OF EVIDENCE. Purpose of Rules of Evidence. — It has been seen that the rules of evi- dence have to do with determining what is called the competency of witnesses ; that is, of deciding whether a particular person shall be permitted 'Com. vs. Stuitevant, 117 Mass., 122; Campbell vs. State, 23 Ala., 44; Evans vs. People, 12 Mich., 27 ; McLean vs. State, 16 Ala. , 672 ; Messner vs. People, 45 N. T., 1 ; People vs Eastwood, 14 N. T., 562. 'Milwaukee Railway Co. vs. Kellogg, 94 IT. S., 409; Chicago ■os. Greer, 9 "Wall., 726 ; Dexter vs. Hall, 15 Wall., 9 ; Transporlation Line vs. Hope, 95 U. S., 297; People TO. Bodine. 1 Deiiio, 282 ; Woodin vs. People, 1 Parker, 464 ; Cook vs. State, 4 Zabiis- kie, 843 ; State to. Smith, 32 Mann , 369 ; 1 Green Crim. Reports, 241 ; McGowan vs. American Pressed Tanbark Co., 121 U. S., 575; Union Ins. Co vs. Smith, 124 iMd., 40.1 ; Forsyth to. Doolittle, 120 ibid., 73 ; Gay ««. Union Mut. Life Ins. Co., Blatch., 143 ; Jolly vs. Terre Haute Drawbridge Co., 6 McLean. 237. An officer of the Quar- termaster Department was admitted by a court-martial to testify as an "expert" in regard lo the proper performance of his duties by a chief quartermaster of a military department Held that such testimony was inadmissible and should have been ruled out, the subject being one regulated by law and orders, and the witness being in no proper sense an expert. Dig. J A. Gen.. 400, par. 26. = Spring Co. vs. Edgar, 9 Otto, 695 ; Carter vs. Baker, 1 Sawyer, 512. * Forsyth vs. Doolittle, 130 U. S., 73; U. S. vs. McGlue, 1 Curtis, 15; Dexter vs. Hall, 15 Wall., 91. EVIDENCE. 263 to testify at all ; and with the exclusion of certain testimony from the con- sideration of the jury upon the ground that it is likely to mislead them and to confuse, rather than to make clear, the issue referred to them for trial. They also determine, to a certain extent, the credibility of witnesses, or the weight that is to be attached to their testimony. Oral and Written Testimony. — The challenges and pleadings having been completed and the accused arraigned, each party in turn submits the testimony of witnesses in proof or disproof of the facts composing the issue. The oral or written testimony offered in support of the case, on either side, makes up the evidence upon which the court bases its finding of fact in accordance with the weight of evidence submitted. Testimony is classified, according, to its form, as either oral or written. Oral testimony is that given viva voce .in open cou rt. Written testimony is composed of matter Tn^e nature of writings or documen ts, a,nd these may be presented, as will pres- en tly be explained, in the shape of originals or copies. Direct and IndirecT^^ Real Evidence. — ^"Oral testimony is classified according to its nature and character, and is said to be direct _^x original when the witness testifies to facts obser ved by him through the medium of his se nses. It is said to be indirect wnen tiie witness aeriYes.Kii "knowiedge as to particular faptsfrffln .ihfi observat ion of others and testifies to their declar ations or s tatements c oncerning tEen^^ Such testimony, as will presently be shown, is called hearsay, and is in most cases inadmissible. Rea,l evidence consist s in t,hft,pvnHr|f;]tipT^ in omvt of nbjfipja or artiplpa jthat pRrf,a.in tn a. ca sf in hearin^ -JjL i)rder that the^purt may be enabled to make a_gersonal examination or inspection of them, or that witnesses may iden- tify them or illustrate their application or use in connection with a matter in issue. Evidence is also said to be indirect or, more properly speaking, circumstantial when the existence of a fact is inferred, by a process of reasoning, from the existence or non-existence of other facts established in evidence by the testimony of witnesses or by the production of documents.' In additio n lo„de.tfinnin iiig. the competency of yitnfiss es..ajul-.the- credi- bility of their testimon y, the rules of evidence also serve to determine: 1. The relevancy of te stimpny^that is, its relation to the issues raised by the pleadings. 3. The lurden of yroof, that is, to designate the .party upon whom tjie obligation rests of establiiphiasL. the trnth. of ^eaeh.- issue raised .during the progT^s^the trial. 3. The quality of evidence that__shall be submitted or received in support of an issue, which is accomplished by requiring the best evidence to be submitted which the nature of the case will admit of. ClLAjt-t' I 1 People vs. Kendall, 32 N. Y., 141 ; Brig Struggle va. U. S., 9 Cranch, 71 ; Bank of U. S. vs. Corcoran, 2 Pet., 121. r264: MILrrAET £AW. 4. The^mowm^jtfeiideBice necessary to .establish the facts composing the substance of a^articular issue. - I. KELEVANCT OE EVIDENCE. Relevancy. — Evidence must be relevant j that is, must bear directly upon the issue.' The issue here referred to is that obtained by an application of the rules of pleading, and the reason for the rule is simple. From the nature of pleading it is apparent that no testimony can be received which does not tend to prove or disprove the facts of which the issue is composed. This question alone engages the attention of the court-martial, to the exclusion of every other, and it would be the veriest waste of time were the court to permit other testimony to be heard. Relevancy of Facts. — A fact is s aid to be relevant when it ia the cauae or effect of another fact, or is the eff ect of the same cause, or is the cau se of the same effect." Particular testimony is said to tend to prove a fact when, taken" in connection with other and similar testimony, it is calculated to establish such fact in evidence; each fact so testified to forming a link in the chain of proof submitted in support of the case of either party to the action. Testimony as to collateral facts is, as a rule, inadmissible unless the burden rests upon a party of proving intent or the existence of partic- ular knowledge on the part of a person, or when good faith, malice, state of mind, or bodily health is in question. In a trial for desertion, for example, testimony that an accused purchased a ticket for a distant point, or attempted to dispose of his uniform, or to exchange it for civilian's dress would be admissible to show the intent of not returning, which is essential to the offense of desertion. So the fact that a person charged with receiving stolen goods from A had received similar stolen goods from B or C, or had received stolen goods from A on a previous occasion, would be admissible as showing the guilty knowledge which is an essential ingredient of the offense of receiving stolen goods. Such testimony is therefore admitted, to a limited extent, to furnish the basis of fact from which the court may deduce a just conclusion as to the specific. intent with which an offense has been committed. When particular testimony is objected to as irrelevant, it may be admitted upon the statement of the party producing it that its relevancy will apear at a later stage of the proceedings.' 'Turner vs. Fendall, 1 Cranch, 117; Stringer vs. Young, 3 Pet., 320; Winans vs. N. Y. & Erie R. R., 31 How., 88 ; U. S. vs. Gibert, 3 Sumner, 19 ; Lucas vs. Brooks, 18 Wall., 436 ; Polk vs. Robertson, 1 Overton (Tenn.), 456. ' Stephen's Digest of the Law of Evidence, p. xii. * U. S. vs. Flowery, 1 Sprague, 109. If evidence tends, in any degree, to establish the existence of a material fact, it cannot be rejected as ii relevant, but must be received in conneqtton with the otber facts and circumstances of the case. U. S vs. Babcock, 3 Dili., 571. The admission of incompetent or irrelevant evidence is not a sufficient rea- EVIDENCE. - 265 ' : Circumstantial Evidence. -^Although positive proof in a criminal action is desirable, it is not absolutely necessary, and a conriction may be had on circamsfantial evidence, th at is. evidence in which the gu ilt- ol-the accnaed- is inferred from his acts and from other facts established in evidenc e. In a case depending upon circumstantial evidence, the court, in order to convict, must find the circumstances to be satisfactorily proved as facts, and must also find that those facts clearly and unequivocally imply the guilt of the accused and cannot reasonably be reconciled with any hypothesis of his inno- cence. ' Whenever a necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or from the failure of direct proof, objections to testimony upon the ground that any particular circumstance is irrelevant or of an inconclusive nature and tendency are not favored, for the reason that the force and efEect of circumstantial facts usually and almost necessarily depend upon their connection with each other or with the direct proofs in the case." Character — Reputation. — The term character, as used at common law, is not synonymous with reputation ; this for the reason that the character of a person, using the term in relation to his disposition, cannot, from its nature, be established by the testimony of witnesses. Its outward manifesta- tion, however, in the reputation which a person enjoys in the community is a fact, and, like other facts, is susceptible of observation by neighbors and others who may testify as to such reputation in a proper case. Testimony as to character is in general inadmissible. In a civil action it rarely occurs that the character of a party is drawn in question ; in a criminal trial, how- ever, the character of the accused, as evidenced_by his-repiitation, may become an element of importance in two cases: first, when the evi~ dence_ofguilt is not strong, testimony as to the good reputation of an ac- cused^ay,bg_admitted to strengthen the presumption of innocence ; ' and secondU such te stimony may be a^niitted_ where the punishnxentr is discre- ■ tionary with the court, with a view Jo jeducetlie sentence imposed upon conviction. .— =>- son for reversing a judgment when it is apparent tliat it cannot have affected fte verdict or the finding injuriously to the plaintiff in error. Mining Co. ns. Taylor, 10 Otto, 37 ; Turner m. Fendall, 1 Cr., 117. If irrelevant evidence has been introduced by one party, the other party has no right to introduce equally irrelevant evidence in rebuttal. Stringer m. Young, 3 Pet., 320. When improper testimony has been admitted the appellate court cannot look into its importance or operation, but the verdict founded upon it cannot stand. Smith tis. Carrington, 4 Cr. , 63 ; Church w. Hubbart, 3 Cr., 187. ' The Robert Edwards, 6 Wheat., 187 ; U. 8. ««. Douglass. 8 Blatch., 207 ; U. 8. m. Martin, 3 McL., 256; McGregor «s. The State, 16 Ind., 9; U. S. m. Goldberg, 7 Biss., 175 ; IT. 8. m Babcock, 3 Dill., 631 ; U. 8. »«. Butler, 1 Hughes, 457 ; U. 8. m. Lyman, 5 McL., 518 ; 7 m. Wood, 14 Pet., 430. 2 U. 8. m. Hartwell, 3 Cliff., 231 ; Lawrences. Dana, 4 Ubid.., 1 ; U. 8. m. Bark Isla de Cuba, 3 ihid., 395. 'Bdgington m. U. S., 164 U. S., 361; Brown m. U. S., 164 U. 8., 331; State m. Ford, 3 Strobh., 517, note; Fields m. State, 47 Ala., 603; Storrs m. People, 56 N. Y., 315; People D«. Ashe, 44Cal., 388. /^ 266 MILITARY LAW. Evidence of the good character, record, and services of the accused as an officer or soldier is admissible in all military cases -without distinction — ^in cases where the sentence is mandatory as well as those where it is discretion; ary with the court. For while such evidence cannot avail to afEect the measure of punishment, it may yet form the basis of a recommendation by the members of the court, or induce favorable action by the reviewing officer whose approval is necessary to the execution of the sentence. Where such evidence is introduced the prosecution may ofEer counter-testimony, but it is an established rule of evidence that the prosecution can not attack the character of the accused till the latter has intro3uced evidence to sustain it, and has thus put it in issue.' It is also, in general, competent on trials by court-martial for the accused to put in evidence any facts going to extenuate the offense and redace the punishment, as the fact that he has been held in arrest or con- finement an unusual period before trial, the fact that he has already been subjected to punishment or special discipline on acconnt of his ofEense, or the fact that his act was, in a measure, sanctioned by the act or practice of superior authority." Reputation, How Established. — As has been observed, the testimony ofEered in support of character is that of persons who know the reputation of the accused in the community in which he lives, and can testify as to the reputation which he there enjoys for sobriety, integrity, morality, and the like.' Testimony so submitted should relate to character as indicated in the charge; if fraud or dishonesty be alleged, testimony as to integrity is appro- priate ; if a crime of violence be charged, testimony as to good disposition would be relevant. Testimony as to general good reputation would properly be submitted with a view to afEect the discretion of the court or reviewing authority in the matter of leniency. ^ II. THE BURDEN OF PEOOF. / How Determined. — The rules as to the burden of proof are necessary to f the orderly and methodical presentation of evidence in actions at law. It has been seen that the issues referred to a jury for trial are decided in civil ( actions by a preponderance of proof, and in criminal cases by proof sufficient to establish guilt beyond a reasonable doubt. What is called the burden of j proof — that is, the task of establishing the truth of a proposition outlined \ in the pleadings — rests primarily upon the one who alleges a fact or makes \ the contention that such fact exists. ' Dig. J. A. Gen., 394, par. 4. > 76k, 398, par. 15. ' State vs. O'Neal, 4 Iredell, 88: U. S. vs. Van Sickle, 2 McL., 219; Elam vs. State, 25 Ala., 33; People vs. Mather, 4 Wend., 231; Hamilton «s. People, 29 Mich., 173; State vs. Howard, 9 N. H., 485. EVIDENCE. 267 Burden of Proof in Criminal Trials. — In a criminal trial the burden of proof never shifts, but rests upon the prosecution of establishing in evidence ■the facts constituting the offense as set forth in the indictment.' The accused goes to trial with the benefit of the presumption that he is innocent, which attends him throughout the trial; but when the prosecution has suc- ceeded in establishing the facts constituting guilt, by the testimony of competent and credible witnesses, the defense is required to meet and rebut, or disprove, the facts established in evidence by the prosecution.'' Jla collateraLissaeg _ arising i n the c ourseof the trial as to the competency of witnesses, the admissibiliTy of testimoE2^_and_the like, the burdetf of "proof / rests upon tbeparty who alleges incompetency or objects to the adinission of particular testimony.' ■ III. THE BEST ETIDENCE. The Best Attainable Evidence must be Submitted. — This rule is calcu- lated to prevent fraud, and to enable the court to base its finding upon the 1 best attainable evidence in every case. All evidence, whether oral or written, is of various degrees, or orders, in point of .primariness , a nd originality. If a witness testify as to facts which he has heard or seen, or if the original of a document be produced, such testimony is, in the nature (/, of the case, the best attainable, and is said to constitute primary evidence. If, on the other hand, the witness testifies to facts the knowledge of which he has gained from another, or if a copy of a document be submitted, or if neither the original nor a copy be forthcoming and the contents of the paper be testified to orally, such evidence is not the best, and is said to be secondary^or^d^ivative. In some cases, as where the testimony is pure "hearsay, it is rejected; in others, especially in the case of documeats, it is ' Lillienthal vs. U..S., 97 U. S., 237; Potter m. U. S., 155 U. S., 438; Agnew m. U.S., 165 U. S.,36. 2 Agnew TO. U. S., 165 U. S., 36; Coffin m. U S., 156 ibid. 432. ' Lillienthal »s. U. S., 98 U. S., 237. Where the court charged the jury that, when the prosecution had made out a primafacie case, the burden of proof was on the defendant to restore him to that presumption of innocence in which he was at the commencement of the trial, it was held that the instruction was erroneous, and that the jury should have been told that the burden was on the commonwealth lo establish the guilt of the defend- ant, and that he was to be presumed innocent unless the whole evidence in the case satis- fied them of his guilt. Commonwealth vs. Kimbiill, 34 Pick., 366. When the matter ■of defense set up by the accused, however, is wholly and entirely disconnected with the body of the crime charged, the burden of proof rests upon the accused. State m. Murphy, 83 Ind., 270. So, too, where the subject-matter of a negative averment relates to the defendant personally, or is peculiarly within his knowledge, the averment will be taken as true unless disproved by him. State m. McGlynn, 34 N. H., 422; Com. m. Knapp, 9 Pick., 496; Com. m. James, 9 Pick., 375; Madden w. State, 1 Kan., 340. A, for example, is indicted for bigamy ; he wishes the court to believe that at the time of the first marriage he was a minor. The burden of proof to establish minority is upon A. B., charged with theft, wishes the court to believe that at the time of the commis- sion of the theft, he was elsewhere. The burden of establishing the alibi rests upon B. Stephen on Evidence. I 268 MILITARY LAW. accepted upon proof by the party offering it that it is the best evidenoa attainable ; that is, that the original has been lost or destroyed, or is in tTia possession of the opposite party or in that of a person beyond the jurisdic- tion of the court. Hearsay. — What is called hearsay testimony is inadmissible. Hearsay testimony is that obtained from a witness who has not himself observed the facts to which he testifies, but whose knowledge of them is gained from the statements of others. Hearsay is objectionable for several reasons: first, %,ecause it is secondary, and the law requires prima,j:y evidence — the best evidence attainable — in every case; second, the real witness is not testifying in court, under the sanction of au oath; and third, the opposite party, and ~"y j especially the defendant in a criminal case, has no opportunity to be con- fronted_\vit]i„±hfi.. witnesses against hirn^ or to exercise_the rightlof cross- . examination.' There are some necessary exceptions to this rule, and there are some apparent exceptions which, upon close examination, will be found to relate to relevant facts and to be, as such, not liable to objection as hear- say. The principal exceptions are: 1. Confessions. — One form of criminating testimony, known as confes- sions, has always been received from accused persons in criminal cases, " Subject to the cautions to be observed in receiving and weighing confes- sions of guilt, they are among the most effectual proofs in the law. Thei/ value depends on the supposition that they are deliberately made, and ol the presumption that a rational being will not make admissions prejudicial • to his interest and safety, unless when urged by the promptings of truth and conscience." ^ The most common form of confession is that afforded by the plea of guilty made by the accused, in answer to an indictment, with full knowl- edge of the legal consequences that will ensue. Confessions may be made by a plea of guilty, as above described, or by a statement made in open court by or in behalf of the accused; if made elsewhere", they may be testis fied to by those who heard them, or to whom they were addressed, if made under such circumstances as to make it clear that the admissions of guilt were entirely voluntary.' Any evidence going to show that a confession was extorted by means of threats or promises, or by the use of force, especially by a person in authority, will completely destroy its evidential value.* When offered under the conditions above described a confessior ' Queen to. Hepburn, 7 Ci-., 390; Ellicott m. Pearl, 10 Pet., 413. 'U. S. TO. Montgomery, 3 Sawy., 544; U. S. to, Williams, 1 ClifE., 5; TJ. S. to. Wi\ son, 1 Biild., 78; Telm, .Jr., to. Wash Ty., 1 Wash Ty., 63. » U. S. TO. Kurtz. 4 Crancli C. C, 683; U. 8. to. Williams, 1 Cliff., 5; IT. S. to. Griff, 14 Blatcli., 381; TJ. 8 to. Nott. 1 McLean, 499; U. 8. to. Coons, 1 Bond, 1. «U. S. TO. Pumphrey, 1 Cranch C. C, 74; U. 8. to. Hunter, ibid., 317; U. 8. to. Negro Charles. 2 ibid., 76; U. 8. to. Pocklington, ibid.. 293; Berry to. U. S., 3 Colo. Ty., 186. A confession is competent evidence when fre« and voluntary ; otherwli* EVIDENCE. 269 must be receiTed in its entirety/ and weiglit must be attached to those parts which weigh for the accused as well as those which operate to his prejudice. Corroboration. — A mere confession not made in open court, or otherwise corroborated, and without proof aliunde that a crime has been committed, will not justify a conviction." Proof of Facts obtained through an Inadmissible Confession. — AVhere an inadmissible confession leads to the discovery of a fact, so much of the inadmissible confession as relates to such fact may be received. ° It has also been held that testimony obtained as a result of an inadmissible confession ,is both competent and receivable. 2. Declarations; Admissions against Interest. — Acts, declarations, and conduct of the defendant on the occasion of the commission of an ofEense are to be considered as indicia of his guilt or innocence. Where, however, an ofEense against the law is shown to have been committed, the law raises a presumption of guilty intent. This presumption cannot be overthrown by the declarations of the accused made after the commission of the ofEense, and such declarations cannot be proved." Dying Declarations. — A dying declaration is an ante-mortem statement made by the declarant in relation to the injury from which he is sufEering. The statement is receivable in evidence in a trial for the murder or manslaughter of the declarant, and only when made in view of impending death and when he no longer cherishes any hope of •where made ttu'Ough the influence of hope or fear.* So where iiu officer admit! ed to a superior, In writing, tlie commission of a military oilense, and promised not to repeat the same, under the well-founded hope and belief that a cliarge which had been preferred against him therefor would be witlidrawn, held that, in case he were acluallj' brought to trial upon such charge, the admission thus made would not pioperly be received in evi- dence against liis objection. Confessions made by private soldiers to officers or non- commissiQucd officers, though not shown to have been made under the influence of promise or Ihreiit, slionld yet, in view of the military relalioiis of the parties, be received with caution. f Mere silence on the part of an accused when questioned iis to his sup- posed oflfense is not to be treated as a confession. | Dig. J. A. Gen., 397, par. 13. ^ A confession that he had deserted made by an alleged deserter to a police officer, who on arresting him assured him lliat if he told the truth he (the officer) would give him an opportunity to escape before being delivered up to the military authorities, held clearly not admissible in evidence, iis having been induced by promise of favor ou the part of a person in autliority. Ibid., 399, pur. 20. 1 U. S. vs. Pryor, 5 Cr. C. C, 37; U. B. vs. Barlow, 1 Hid., 9-i. 2 Territory M. McLinn, 1 Mont. Terr., 394; Bergen vs. People, 17 III., 426; String- fellow vs State, 3B Miss., 157; Brown vs. State, 32 Miss., 433; Jeul^ius vs. Slate, 41 Mi.ss , 582; Anderson vs. Slate, 36 lud., 89; Slate vs. Guild, 10 N. J L., 163. ' State vs. Vaigneur, 5 Rich., 391 ; White vs. State, 3 Heisk., 338; Jordan vs State, .S2 Miss., 382; Belote vs. State. 36 ibid., 96; McGlotherlin vs. State, 2 Cold, iTeiin.), 223; Frederick m. State, 3 West Va., 695: People vs. Ah Ki, 30 Cal.. 177; Done vs. People, ibid., 321; Duffy™. People, 5 Parker, 864; Com. vs. James, 99 Mass., 438. * U. S. vs. Imsand, 1 Woods, 5S1; U. S. vs. Hanway, 3 Wall, Jr., 139. * United States vs. Pumpbreys, 1 Crancli C. C, 74; Unite.l Statps m. Hunter, ith. 317; United States vs. Charles, 3 id., 76; United States tis. Pocklington, Id., ^93; United Stales vs. Nott, 1 McLean, 499; United Stales vs. Cooper, 3 Qu. L. J., 4'i t See General Court-martial Orders, No. 3, War Department, 1876; Qeneral Orders, No. 54, Depart- ment of Dakota, 1867. Compare Cady vs. State, 44 Dliss., .332. X See Campbell vs. State, 55 Ala., 80. 270 MILITABT LAW. recovery. I n thi sjgasaJiie. sense of impending death is held to replace the sanction o|_^njiath, and for this reason the statement will not be "received if it appears that the declarant cherishes any hope, however slight, of ulti- mate restoration to health. The competency of the declarant as a witness, and the sufficiency of his statement, are determined by the court, which, after hearing all the facts, admits the statement or rejects it as not proper to be submitted to the jury." EES GESTJE. Res Gestae. — A form of testimony remains to be described which con- forms to the definition of hearsay, because it consists of the admissions, statements, and other utterances of accused persons or interested parties which are testified to by those who heard them. Such testimony, as will presently be shown, is not hearsay, or secondary, btit primary, or original, in character.' What Constitutes Res Gestae. — If the several acts or events which con- stitute a cause of action or a criminal offense be analyzed, or separated into their constituent elements, it will be seen that they consist in part of acts and in part of oral_declarations or statements, and, in some cases, of exclama- tions or other -expressions orerrib^tioh bi- "Reelin g. These utterance s are as essentiaLiQj:lie ^crime, or ca use of action , as are the other acts of which it is composed. They are, indeed, verial facts, and as such may be testified to by witnesses who observed them or in whose presence or hearing they were littered. They consist in general of oral declarations or admissions, but may take the form of written entries in certain cases to be explained hereafter.' When Admissible. — The rule applies to the statements of a partner whose declarations bind the firm of which he is a member ; to the represen- tations of an agent, which, within the scope of his agency, are binding upon his principal ; to the confessions of accused persons ; and to the utterances of a conspirator which, if made in furtherance of the common purpose, are binding upon co-conspirators. It also applies to the case in which the fact in question is as to whether a particular statement was or was not made, its truth or falsehood being a matter of secondary importance. The rule has an extensive application in criminal cases. For example: A, by acci- ' Ciirver vs. U. S , 164 U. S., 694; Jolinson vs. State, 17 Ala., 618; Tbompson vs. State, 24: Gii.. 2H7 ; People vs. Veruon, 35 Coe, 49; Com. vs. Carey, 12 Cushiug (Mass.), 246 ; Com. vs. Cooper, 5 Allen (Mass.). 495; NeLsou vs. Slate, 7 tlumph. (Tenn ), 542; Smitli vs. State, 9 ibid., 9 ; U. S. vs. "Woods, 4 Crancli C. C, 484; People i«. Lee, 17 Gal., 76. » Beavor vs. Taylor, 1 "Wall., 637; Ins. Co. vs. Mosley, 8 "Wall., 897; Ins. Co. vs. "Weide, 9 "Wall.. 677; James vs. "Wharton, 3 McLean, 493; Bacon vs. Charlton, 7 Cush., 586; Smith vs. Sho.emaker, 17 Wall., 630. ^ James vs. "Wharton, 3 McLean, 492 ; Ins. Co. vs. "Weide, 9 "Wall., 677 ; Greenleaf Evld., § 143. EVIDENCE. 271 dent, discharges a pistol and wounds B ; A gives expression to an exclama- tion of horror the instant that the result of his act is made known to him. Such exclamation is a verbal fact, and as such forms an essential part of the transaction. B stabs C, and, as he inflicts the wound, exclaims, " Take that," or " Now we are even," or words of similar efliect; in this case, also, the exclamation is an essential ingredient of the offense. If, however, A shoots and kills B, and some time after the event, when he has had time to arrange a theory of defense, expresses regret at the occurrence, it is obvious that sugh expression of regret, if offered in evidence, should be rejected.' Rule as to Admission. — The rule governing the admission of such state- / nients is that they are receivable when they are strictly contemporaneous // ■wrhhji.Tirl form aj^^s^^^'pa.rH'g^TK? pvp.nt f." wbinh tbpy rplalpj and not/'^ oth^lKisfi— -Whether they are or are not contemporaneous is a question for tTie court to decide. Under this head falls testimony as to the information under which a persons acts; statements or declarations in regard to bodily health; expressions of feeling; statements in regard to pedigree or relation- ship, or to the facts in regard to birth, marriage, or death; declarations of a testator; inscriptions on monuments or tombstones; entries in family Bibles, charts, pedigrees, or the like/ The court in every case will determine the question of admissibility, and will satisfy itself that the testimony offered is the best attainable before allowing it to be entered upon the record. IV. SDBSTANCE OF THE ISSUE. DEPARTURES. The Substance of the Issue only Need be Proven. — By the substance is -^eant the material or essential part, as indicated in the pleadings upon which issue has been joined.' In the application of this rule a distinction is made between matter of substance, which pertains to an issue, and matter of description. The latter must be proved as alleged; the former, as to its legal or material part only. This rule is somewhat more strictly' enforced in criminal than in civil actions, as personal rather than property rights are there drawn in question.'' For example: A is charged with the larceny of a horse, the property of B. It is sufficient in the indictment to allege that a horse, the property of B, was feloniously taken by A with intent to convert the same to his own use. If the indictment describes the animal as a black horse, the color ' People vs. McMalion 15 N. Y., 384; Phillips vx. People, 57 Barber, 353 ; Com. ns. Keyes. 11 Gray, 323; State rs. Mahnn, 32 Vt , 241 ; Smilli vs. State, 41 Tex., 353; Kingen w. State. 50 Ind., 557; People vs. Simonds, 19 Cal., 275. ' U. S. m Howard, 3 Sumner, 13; U. 8. vs.'Poys, 1 Cush., 364; Wilson vs. Codman, 3 Crancli, 193. » I. Greenleaf, §§ 108, 123. *lbid., §§56-73. 272 MILITARY LAW. must be proven ; and if the horse proves to be white, the variance is fatal. So, too, if A be charged with the larceny of two bank-notes of a certain denomination, it is enough to allege the larceny of two bank-notes each of the denomination of five dollars, and to prove the felonious taking. If, however, the notes be described by the names of the banks of issue and the names and titles of the officers who signed them, such description will have to be proved as alleged. A departure from the allegations of a pleading in matters of description is called a variance, and is fatal unless aided by statute in the jurisdiction in which the trial is had.' JUDICIAL NOTICE. There are .certain Jacts.ol which all courts Jtake.what-is .^lled /MAad notice; that is, acjcept . them without proo f, as they are alleged orrelerred to in pleading or argument during the progress of a trial. This i s done as to certain facts because the law requir es it, and as_to_othersJjecause-o£-theii! -^/,* notoriety and general acceptan ce by _the commuiui3L.at_^kr£e. To the former class belong the laws which the court applies in the decision of the cases before it, including the Constitution, laws, and treaties of the United States, those of the State in which the court sits, the common law, the law of nations, the custom of merchants, and the admiralty or maritime law of the world." They also recognize the great seal of the United States, those of the several States, the seals of courts of record when attached to their records, orders, and decrees, together with the seals of notaries public and the great seals of foreign States. Under the latter head they will take judicial notice of the ordinary divisions of time, of calendar and lunar months, of weeks and days, and of the hours of the day ; of astronomical and physical facts; of the laws of nature, including their ordinary operations and consequences;' of the government of the United States and those of the several States, with their principal officers ; of the existence of foreign States and their rulers; of war and peace; and of the great facts of history as recorded in the works of writers of standard authority.* The Revised Statutes; Supplements. — The law of the United States, which is applied by courts-martial in military trials, is contained in the 1 I. Greenleaf, § 65. 2 Bridge Prop. vs. Hoboken Co., 1 Wall., 116 ; U. S. vs. Randall, 1 Deady, 524 ; Evanses Clevelsind & Pittsburg R. R. Co., 5 Phil., 512 ; Gardner vs. The Collector, 6 - Wall., 499 ; Jones vs. Hays, 4 McL.. 521 ; Cheever vs. Wilson, 9 Wall., 108; Owings vs. Hull, 9 Pet., 607; Course vs. Stead, 4 Dall., 32, note. 3 Floyd vs. Ricks, 14 Ark., 386 ; Dixon vs. Nicolls, 39 111., 373 ; Patterson vs. McCausland, 8 Bland (Md.), 69; Mossraan vs. Forrest, 37 Ind., 388. 4 Payne vs. Tread well. 16 Cal., 330; Hart vs. Dodley, Hard (Ky.), 98; Bell vs. Barnet, 2 J. J. Marsh. (Ky.), 516. See, also, 17 Myers Fed. Dec, §§ 3376-2354; V. U. S. Dig. (1st Ser.), 484-491. EVIDBNOB. n^ 273 Eejisei-Siatutes ' an d the au thorized Supplements" thereto, and in the biennial volmne g of Statutes at Lar ge, coatatning the legislation of Congress wMcIihas become law since the ena ctment of the _EeYised Statates_in_ l^glj:. Courts-martial take cognizance of the laws of the United States which are contained in the volumes above referred to, when read from books published, with the proper authority. Statutes which relate especially to the military establishment may be taken notice of when read from the General Orders of the War Department in which they have been ofBcially published to the Army. The Statutes at Large. — The current legislation of Congress from year to year will be found in the volumes called Statutes at Large, which are published biennially with the authority of Congress. These volumes, twelve of which have appeared since the general revision of the laws in 1873, contain the public and private statutes enacted since December 1, 1873, together with all treaties and conventions with foreign powers which have acquired theiorce of law during the same period. Each volume also con- ' The Revised Statutes are an Act of Congress (Act of June 23, 1874, 18 Stat, at Large, 113) containing such statutes as were in force on December 1, 1873. The enactment was approved and became the law ou June 22, 1874, The publication thus sanctioned and authorized is linowii as the First Edition of the Revised Statutes ;. its contents were embodied in the Second Edition, presently to be described, which appeared in 1878. "Wright vs. U. S., 15 C Cls. R. , 80. In case of doubt, ambiguity, or uncertainty the previous statutes may le referred to. Ibid. See, also, Bowen m. U. S., 100 U. S., 508. U. S. vs. Brown, 100 U. S,, 508; Bate Refrigerating Co. vs. Sulzberger, 157 U. S., 1. The Revised Statutes must be accepted as the law on the subjects which they embrace as it existed on the first day of December, 1873, and weie enacted to present the entire bnriy of the laws in ;i concise and compact form. When the language of the Revised Statutes is plain and unambiguous, the grammatical structure simple and accurate, and tlie meaning of the whole intelligible and obvious, a court is not at liberty, by construction, to reproduce the law as it stood before the revision, U. S. vs. Bowen, 100 U, S., 508. See, also, Wriglit vs. U. S,, 15 C. Cls, R., 80, 86. The edition in general use is the second, published, with the authority of Congress in 1878, in accordance with the Act of March 3, 1877 (19 Stat, at Large, 268). The Second Edition of the Revised Statutes is only a new publication ; a compilation con- taining the original law wiih specific amendments incorporated therein according to the judgment of the editor, Wright vs. U. S,, 15 (X Cls. R,, 80, The Revised Statutes did not affect statutes passed between December 1, 1873, and June 32, 1874. The First Edition of the Revised Statutes is a transcript of the original in the Slate Department, It is prtmt /mci* evidence of the law, but llie original is the only con- clusive evidence of the evact text of the law. Wright vs. U, S., 15 C, Cls, R,, 80, 87, '^ Supplements. — Supplements to tlie Revised Statutes have been authorized from time to time by suitable enactments of Congress. The first of these was tlie Supplement of 1881, which vTas authorized by Joint Resolution No, 44 of June 7, 1880, (21 Stat, at Large, 308,) and contains all lesislation of a permanent character enacted between December 1, 1873, and March 4, 1881 ; this work was subsequently merged in the Supplement of 1891. The Supplement of 1891 was a\ithorizecl by the Act of Apt il 9, 1890, (26 Slat, at Large, 50,) and contains such legislation of a permanent character as was enacted between December 1, 1893, and March 4, 1891 ; this work is now known as Volume I, Supplement to the Revised Statutes of the United States. A spcoml supplementary volume, authorized' by the Act of February 37, 189S, (27 Slat, at Larn:e. 477,) known as Volume II, Supplement to the Revised Statutes, etc,, has been published, containing all permanent legislation of Congress between March 5, 1891, and March 4, 1895. 274 MILITARY LAW. tains sach proclamations as were issued by the President during the biennial period to which it relates.' Evidential Value. — It is provided by law that the First Edition of the Kevised Statutes " shall be legal evidence of the laws and treaties therein contained, in all the courts of the United States and of the several States and Territories."" It is also provided that the Second Edition of the Revised Statutes " shall be legal evidence of the laws therein contained, in all the courts of the United States and of the several States and Territories, but shall not preclude reference to, nor control in case of any discrepancy, the effect of any Act as passed by Congress since the first day of December, eighteen hundred and seventy-three." ' The several volumes of Supple- ments are similarly declared to be " prima facie evidence of the laws therein contained, in all the courts of the United States and of the several States and Territories therein; but shall not preclude reference to, nor control in case of any discrepancy, the effect of any original Act as passed by Con- gress."* The several volumes of Statutes at Large published subsequent to the enactment of the Eevised Statutes are also declared to be " legal evi- ' Tweuty-nine volumes, in all, of Statutes at Large have been published since March 4, 1789. TABLE SHOWING THB PERIOD COVERED BY EACH OP THE TWENTT-SEVBN VOLUMES OP THE STATUTES AT LAKGE. Period. Stat. L. Period. From To From To Vol. 1 Miir. 4, 1789 Mar. 3, 1799 Vol. 16 Mar. 4, 1869 Mar. 4, 1871 2 Dec. 3, 1799 Mar. 3, 1818 17 Mar. 4, 1871 Mar. 4, 1873 3 May 29, 1813 Mar. 3, 1833 18 Dec. 1, 1873 Mar. 4, 1875 4 Dec. 1, 1823 Mar. 3, 1835 19.... Dec. 6,. 1875 Mar. 3, 1877 5 Dec. 7, 1835 Mar. 3, 1845 20.... Oct, 15, 1877 Mar. 4, 1879 6*... Mar. 4, 1789 Mar. 3, 1845 31 Mar. 18, 1879 Mar. 4, 1881 7+.. 33 23.... 24 Dec. 5. 1881 Dec. 3, 1883 Dec. 7, 1885 Mar. Mar. Mar. 3, 1883 St.... :::::;:;::;. 3, 1885 9...:. Dec. 1, 1845 Mar. 3, 1851 3, 1887 10 Dec. 1, 1851 Mar. 3, 1855 25. . . . Dec. 5, 1887 Mar. 3, 1889 11 Dec. 3, 1855 Mar. 3. 1859 26 Dec. 2, 1889 Mar. 3, 1891 13 Dec. 5, 1859 Mar. 4, 1863 27 Dec. 7, 1891 Mar. 3, 1893 13 Dec. 7, 1863 Mar. 4, 1865 28 Aug. 7, 1893 Mar. 3, 1895 14.... Dec. 4, 1865 Mar. 4, 1867 29 Dec. 2, 1895 Mar. 3, 1897 15 Mar. 4, 1867 Mar. 4, 1869 ' Section 2 Act of June 20, 1894 (18 Stat, at Large, 118). 3 Section 4, Act of March 3, 1877 (19 Stat, at Large, 368); Act of March 9, 1878 (30 ibid., 37). * Joint Eesolution, No. 44, June 7,1880(31 Stat. at'Large, 308); Act of April 9, 1890 (26 iUd., 50); Act of February 37, 1898 (27 ibid., 477). * Private laws. + Indian treaties. t European treaties, with general index to Vols. I to VUI, inclusive, Statutes at Large. EVIBENCS. 275 dence of the laws and treaties therein contained, in all the courts of the United States and of the several States therein." ' PUBLIC DOCUMENTS. ^ 4^ drt*^ Public Documents. — For evidential purposes a public dqcumeni may be defined asa£j_writterLJnstrument__emanating from or filed or recorded_Jn / / ainyoffing or de partment of the Government^ ^TrndeF'this head M^innlndp.d ' the statutes, resolutions, and other acts of the legislature; the treaties, proclamations, orders, regulations, reports, and other utterances of the Executive; and the records. Judgments, orders, and decrees of courts of justice. Every public document pertains to or is said to be of record in some public oflB.ce, the chief of which is its legal custodian. Public docu- ments are, as a rule, so far regarded as confidential that they are not subject to examination by the public at large without the authority of law or the consent of their legal custodian." Production of, in Evidence, How Secured. — "When it becomes necessary \ > to produce a public document in court, as the public business would be CwVt, delayed and considerable inconvenience caused by its removal from the files \ I of the office to which it pertains, secondary evidence of its contents in the form of copies is usually furnished, and authenticated, in strict conformity with the requirements of statutes, by the seal of the office from which it emanates. Copies so certified are given, by statute, the full evidential value, of originals. For this reason all courts of record and the several executive departments are provided with seals of yhich the courts take judicial notice I Section 8, Act of June 20, 1874 (18 Stat, at Large, 113). "I. Greenleaf, §'470; Wbarton, § 639; McCall vs TJ. 8., 1 Dab., 321. Where a statute requires the keeping of an official record for the public use, by an officer duly- appointed for the purpose and subject not merely to private suit but to official prose- cution for any errors, such record, so far as entries made in it in the course of business, is admissible in evidence i\s p'inia facie proof of the facts it contains.* Nor is it neces- sary to verify such record by the oath of the person keeping it. Tliat it is directed by statute to be kept for the public benefit, and that it is kept, so far as appears on its face, with regularity and accuracy, entitles it to be received in evidence, and throws the burden of impeaching it on tlie opposite side.f To make the record it,self evidence it is only necessary tliat it should be produced, and that it should be proved to have come from the proper depositary % » I. Greenleaf, §§ 471-478. It is an established general rule that a head of a Depart- ment of the Government will not make public or furnish copies of confidential official reports or papers the disclosure of wyoh will rather prejudice than promote tlie public interests. In a case of an officer of the Army who, having been dismissed the service bv sentence of court-martial, applied to be furnished with copies of, or to be allowed to examine, the report of the Judge- Advocate General and the remarks of the General commanding the Army, in his c&se,— advised that the application be not acceded to by the Secretary of War. the same being no part of the record of trial of the officer but confidential communications addressed to the President through the Secretary of War Dig. J. A. Gen., 691, par. 5. J • • I. Wharton, §§ 120, 639, 649. 1 1. Greenleaf, | 483; I. Wharton, § 639; Taylor, § 1429. % I. Wharton, § 639, and cases cited. ^L - ° f 276 MILITARY LAW. when attached to copies or exemplifications of documents issuing therefrom. As has been said, all courts are required to take judicial notice of the laws which they apply in the decision of cases. In this way the public statutes of the United States, and of the State in which they sit, are recognized by courts when read from books purporting to have been published by authority. The same rule applies to the public statutes of the several States of the Union. Foreign statutes and judgments are proven by copies under the great seal of the State to which they pertain, or by the certifica- tion of an officer authorized by law to execute copies and certify to their correctness. Acts of magistrates, and in some cases of notaries public, must be authenticated by the seal of the court of record within whose territorial jurisdiction they act.' DOCUMENTAET EVIDENCE. / Documents. — A document is a statement of fact in a written instrument, I or anything upon winch inscriptions, characters, or signs have been recorde d / and which is susceptible of use as evidence] The term includes deeds 1 formally executed under seal, all forms of written or printed instruments, together with maps, plans, and inscriptions upon monuments, buildings, churches, or headstones. The writing may be in any language or character, and nMy be expressed pictorially or in the language of signs. Written instruments are classified, accardlag_to their source and authority, into 'pUbKc .and private documents, and, according to the formality a,ttending y' their execuTion^into specialties, or tnstrumsnts under *£2^i_S£d__writings or documents not under seal, a term which includesall other writings of what- ever character." From the point of view of evidence, a written instrument is regarded as of the highest authority upon the subject to which it relates; and, as a general rule, cannot be varied or contradicted by parol testimony." If executed under seal, no testimony will be received which is c^|£ulated to change lts_ meaning or to modify its tefihs in thT slightest degree, the pre- sumption being that if a person reduces a proposition to writing, under the sanction of a seal, the instrument so executed must be held to embody his fully considered views as to the subject so expressed in permanent and enduring form. For these reasons the rules of evidence attach the greatest value to documentary evidence, and place peculiar safeguards about its introduction, with ~a view to give to this form of testimony its true evidential value. Primary and Secondary Evidence. — Written evidence is derived from documents, and is said to be either primary or secondary in. character or 1 I. Greenleaf. §§ 479-496 ; Wharton, §§ 317-331. « Wharton dim. Evid., 519. » I. Greenleaf, §§ 275-377. \L JEVIDENOE. 277 degree, depending upon its originality. P£Jfnar^_emdence consists in the prnjnnfjnrwjf tha (ion]ipj(? nt jtself. In the_absence of the primary or orig- inaj_jj omimfint, _fividenc e called secon dary may be admitted ~to"prove its co ntents. This may exist in several degrees, consisting of copies of the original, or in parol testimony as to its contents, derived from witnesses who are familiar therewith. As between copies of a document produced by printing, photography, or by any fac-simile process, all are primary as respects each other, but all are secondary in their relation to the instrument of which they purport to be copies.' The production of written evidence is voluntary when done by a party in his own interest, or compulsory when required by the court in obedience to its order, rule, or subpoena. When a document is produced, the burden of identifying it, and of proving that it is the best evidence attainable, rests upon the party in whose behalf it is produced. Copies of Public Documents. — It has been seen to be a fundamental rule of evidence that the best evidence must be submitted in every case. This applies with perhaps greater force to documentary evidence than to oral testimony, and to the production of public as well as private documents. In its application to public documents, however, it is subject to the qualifi- cation, presently to be described, that, as it would be highly detrimental to the public interests to permit original documents to be removed fiom the ofifices in which they are of record, copies of such documents, made in a form duly prescribed by Jaw, are received in evidence as to the facts to which they relate, and are given by statute the same evidential value as the origi- nals themselves.'' The principal forms of these are : First, exemplifications, th at is, tran - | j /^ scripts o f r ecords or judgments under the great seal of the State,~or the se al of the court from which the judgment issued or to whichthej:ec£a:d^per- tams/l__4n^ exemplification has the same evidential value as would the production of the original itself. It is a recognition, in the most solemn ■ A printed copy of a manuscript is secondary to the manuscript itself, which must be produced or accounted for. Rex m. Wiitson, 32 How. State Tri., 83. But the several printed copies produced by a single impression, and issued in a single edition, though secondary evidence of the original, are primary in respect to each other. Rex m. EUicombe, 5 C. & P., 522; I.Wharton, §92. Whether photographs of writings may, iu any view, be treated as priraaiy evidence may be doubted, and it is clear that when an original is required the original must be produced. I. Whart., § 91. Strictly speaking, a press copy is secondary to the original document from which it is taken. Nodin ®s. Murriiy, 3 Camp, 228 ; Chapin vs. Siger, 4 McL., 378 ; Marsh m. Hand, 35 Md., 123. The fact that a party keeps letter-press copies of letters does not obviate the necessity of producing the originals, or of laying the foundation in the ordinary and usual vpay for secondary evidence. Earl C. Foot m. Bentley, 44 N. Y., 171. Such a copy is receivable on the loss of the original. Goodrich m. Weston, 102 Mass., 362; I. Whart., §§ 72, 92, 133. At the best, however, it continues secondary. I. Whart., 93. ^ Stebbins w. Duucaiu 108 U. S., 32, 50 ; Saxton vs. Nimms, 14 Mass., 820 ; I. Green- leaf, § 484. • » II. Wharton, §§ 95-119 ; I. Greenleaf, § 501. k ty 278 MILITARY LAW. form, by the Government itself of the validity of its own grant under its own seal, and imports absolute verity as matter of record. Exemplifications are usually attested by the certificate of the clerk of the court from which they issue, attested by the signature of the presiding judge. Second, copies may be made by an officer specially authorized, by statute, to perform that duty. In such case the statute authorizing the copy must be strictly followed by the officer authorized to furnish the same, gopies so a uthenticated are called ce rtified or office copies, a term which is a lso applied to the transcripts of records pertaining to the several executive departments of the United States, made by the proper officer or custodian, and authenticated, as a rale, by the seal of the department from which the copy emanates. Third, sworn copies. These are transcripts of public records made under the sanction of , an oath. Examined copies are thnsRj^hifVh lia.vft hpAn p.mri pared withj ;he I original, or wTtlTan official recordTEereof. Such^ copies areproved by some "/^/ one who has^mpared them witEthe originals.' [ ~ Records of Executive Departments. — " Copies of any books, records, papers, or documents in any of the executive departments, authenticated under the seals of such departments, respectively, shall be admitted in evi- dence equally with the originals thereof." ' • Wljarton, § 94. ' Section 883, Revised Statutes. The muster-rolls on file in the War Department are official recoi'ds, and copies of the same, duly cerlifled, are* evidence of the facts originally entered therein and not compiled from other sources, subject, of course, to be rebutted by evidence that they are inistakeu or incorrect. So, though such rolls are evidence that the soldier was duly enlisted, or mustered into the service, and is therefore duly held as a soldier, tliey may be rebutted in lliis respect by proof of fraud or illegality in tlie enlistment or musler (on the part of Ihe lepreseutative of the United States or other- wise), properly iuviilidnting the proceeding and entitling the soldier to a discharge. (But that the entries in such rolls are not proof of the commission of an offense, as desertion, for exnmple, see Desertion.) Dig. Opin. J. A. Gen., 395, par.?. 9, 10. A descriptive list is but secondary evidence and not admissible to prove the facts recited therein. It is not a record of original entries, made by an officer under a duty imposed upon him by law or the custom of the service, but is simply a compilation of facts taken from otlier records. Ihid., 401, par. 83. The "enlistment-paper," the "physical-examination paper," and -the "outline-card" are original writings made by officers in the performance of duty and competent evi- dence of the facts recited therein. Copies, autlienticated under the seal of the War Department, according to Section 882, Revised Statutes, are equally admissible with the originals. Ihid , 401, par. 31. The morning report book is an original writing. To properly admit extracts in evidence, the book should be first identified by the proper custodian, and the extracts then not merely read to the court by the witness, but copied, and the copies, properly verified, attached as exhibits to the record of the court. Ibid., par. 33. Copies of pay accounts (charged to have been duplicated) are admissible in evidence where the accused has by his own act placed the originals beyond the reach of process * But note in this connection the ruling of the Supreme Court of Massachusetts in the case of Hanson vs. S. Scituate. 115 Mass., 336, that an official certificate from the Adjutant-General's Office to the effect that certain facts appeared of record in that office, but which did not purport to be a tran- script from the record itself and was therefore simply a personal statement, was not competent evi- dence of such facts. It has been held by the United States Supreme Court in a recent case, Evanston vs. Ounn, 9 Otto, 660, that the record made by a member of the United States Signal Corps of the state of the weather and the direction and velocity of the wind on a certain day was competent evidence of the facts reported, as being in the nature of an official record kept by a public officer in the discharge of a public duty. EVIDENCE. 279 Copies of any documents, records, books, or papers in the office of tlie Solicitor of the Treasury, certified by him under the seal of his office or, when his office is vacant, by the officer acting as solicitor for the time, shall be evidence equally with the originals.' " When suit is brought in any case of delinquency of a revenue officer or other person accountable for pablic money, a transcript from the books and proceedings of the Treasury Department, certified by the Secretary or an Assistant Secretary of the Treasury, and authenticated under the seal of the Department, or, when the suit involves the accounts of the "War or Navy Departments, certified by the auditors respectively charged with the exami- nation of those accounts, and authenticated under the seal of the Treasury Department, shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgnient and award execution accordingly. And all copies of bonds, contracts, or other papers relating to or connected with the settlement of any account between the United States and an indi- vidual, when certified by such auditor to be true copies of the originals on file, and authenticated under the seal of the Department, may be annexed to such transcripts, and shall have equal validity and be entitled to the same degree of credit which would be due to the original papers if produced and authenticated in court: provided that where suit is brought upon a bond or other sealed instrument, and the defendant pleads non est factum, or makes his motion to the court, verifying such plea or motion by his oath, the court may take the same into consideration, and, if it appears to be necessary for. the attainment of justice, may require the pro- duction of the original bond, contract, or other paper specified in such affidavit.'" " Upon the trial of any indictment against any person for embezzling public moneys, it shall be sufficient evidence, for the purpose of showing a and fiiils to produce them in court on proper notice. So where the originals are in the hands of a person who has left the United States, so that they cannot be reached on notice to the accused to produce ihem, or otherwise. Dig. Opiu. J. A. Gen., 401, par. 34. The provisions of this pection relate to documents of record in one of the executive departments in the city of Washington. Documents of a public nature filed elsewliere, as lit a military post, or at the headquarters of a military department, or of an army in the field, are in strictness proved by the production of the originals, or, in the absence of objection, by the production of copies duly authenticated by the proper custodian. See the parasrapb, post, entitled Military Orders, Reports, Documents, etc., filed elsewhere than in the War Department. 1 Section 883, Revised Statutes. !" Section 886, Revised Statutes ; Walton m. U. S., 9 Wh., 651; U. S. vs. Buford, 3 Pet., 13; Smith vs. U S., 5 Pet., 292 ; Cox M. U. S., 6 Pet., 173; IT. S. vs. Jones, 8 Pet., 37.T; Gratiot vs. U. S., 15 Pet., 336 ; U. S. vs. Irving, 1 Howe, 250; HoytTO U. S., 10 How., 109; Bruce as U S., 17 How , 437; U. S. vs. Edwards, 1 McLean, 467; U. S. «.?. Hilliard et al., 3 McLean. 334; U. S. vs. Lent, 1 Paine. 417; If. S. vs. Martin, 2 Paine, 68; U. S vs. Van Zandt, 8 Or. 0. C. 328; U. S. vs. Griffith, 2 Cr. C. C, 386; U. S. vs. Lee, 2 Cr. C. C, 462; U. S. »«. H.trrill. 1 McAU , 243; U. S. vs. Mattison. Gilp., 44; U. S. vs. Cbrwin, 1 Bond, 149; U S. vs. Gaussen, 19 Wall., 198; U. S. vs. Bell, HI U. S., 477 ; U. S. vs. Stone, 106 U. S., 525. 280 MILITARY LAW. balance against such person, to produce a transcript from the books and proceedings of the Treasury Department, as provided by the preceding section." ' " A copy of any return of a contract returned and filed in the returns office of the Department of the Interior, as provided by law, when certified by the clerk of the said office to be full and complete, and when authenti- cated by the seal of the Department, shall be evidence in any prosecution against any officer for falsely and corruptly swearing to the affidavit required by law to be made by such officer in making his return of any contract, as required by law, to said returns-office." " " Copies of all official documents and papers in the office of any consul, vice-consul, or commercial agent of the United States, and of all official entries in the books or records of any such office, certified under the hand and seal of such officer, shall be admitted in evidence in the courts of the United States."" State and Territorial Laws ; Legislative and Judicial Records of States and Territories. — " The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such coantry, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." * Journals of Congress. — " Extracts from the journals of the Senate or of the House of Eepresentatives, and of the executive journal of the Senate when the injunction of secrecy is removed, certified by the secretary of the Senate or by the clerk of the House of Eepresentatives, shall be admitted as ' Section 887, Rev. Sluts, U. S. vs. Gaussen, 19 Wall., 198. « Section 888, Rev. Stals. s Secliou 896, ibid. •» Section 905, ibid. Ferguson vs. Havwood. 7 Cr., 408; Mills vs. Dnryea, 7 Cr., 481 ; TJ. S. vs. Aniedy, 11 Wli., 393 ; Buckner rs. Finley, 2 Pet., 592; Owings vs. Hull, 9 Pet., 637; Urtetiqui vs. D'Arbel, 9 Pet., 700; McElmoyle vs. Cohen, 13 Pet., 812; Stacey ««. Thrasber, 6 How,, 44; Bank of Alabama ss. Dal ton, 9 How., .'")22; D'Arcy vs. Ketcbum, 11 How, 165; Railroad vs How.ird, 13 How., 307; Bootb vs. Clark, 17 How., 332; Mason vs. Lawrason, 1 Cr. C. C, 190; Bnford vs. Hickman, Hemp, 233; Craig vs. Brown, Pet. C C, 354; Stewart vs Gray, Hemp., 94; Gardner r«. Lindo, 1 Cr. C. C, 78; Trigg to. Conway, Hemp, 538; Turner vs. Waddiagton, 8 Wasb. C. C, 136; Catlin to Underbill, 4 McL., 199; Morgan vs. Curtenius, 4 McL., 366; Hide to. Bro'tberton, 8 Cr. C. C, 594 ; Mewster vs. Spalding. 6 McL , 24 ; Parrot vs. Habers- ham, 1 Cr. C. C, 14; Talcott m. Delaware Ins. Com , 2 Wasb. C. C, 449 ; James w. Stookey, 1 Wash. C. C, 830; Bennett to. Bennett, Dist. Ct., Oregon, 1867. EVIDENCE. 281 evidence in the courts of the United States, and shall have the same force and efEect as the originals would have if produced and authenticated in court." ' Public' Records of States and Territories. — " All records and exemplifi- cations of books which may be kept in any public office of any State or Territory, or of any country subject to the Jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State or Territory, or country, that the said attestation is in due form and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or country aforesaid in which it is made. And the said records and exemplifi- cations, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as aforesaid, from which they are taken." ' Judgments of Courts.— The judgments of courts may, in a. proper case, be submitted in evidence during a trial by court-martial. As in the case of all documentary testimony, the best evidence of a particular judgment or decision consists in the production of the record ibself. This can be done, however, only in the court to which the record pertains, or in a higher court to which it has passed in the regular course of judicial proceedings. In all other cases, a copy of the record, in some form, replaces the judgment itself and is given, usually by statute, the same evidential value.' Decisions of Courts. — What are kuown as the decisions of courts, a more comprehensive expression than the term " judgments " as used in the tech- nical sense above described, and which includes, in addition to the mere judgments of the courts, in particular cases, the reasons assigned therefor by the judges who rendered them, are to be found in the volumes of reports published with the official sanction of the courts that issued them. " Deci- ' Section 895, Revised Statutes. « Sectiou 906, ibid : U S. vs. Johns, 4 Dallas, 413 ; U. 8. vs. Amedy, 11 Wheaton, 393 ; Watkins vs. Holmaii, Ifi Pet., 35; Grecg v. Forsyth, 34 How., 179; Post vs. Super- visors, 15 Olto. 667; Savage's Case, 1 Ct. Cls., 170; Leathers vs. Salvor "Wrecking Co., 2 Woods, 680; MoCall vs. U. S.. 1 Dak., 330 See, also, 17 Myers Fed. Dec, 133-185. ' See, also, the article entitled Copies of Public Documents, page 377, supra. 283 MILITABT LAW. eions are onlj^evidence of what the laws are, and are not of themselves laws. They_are often re-exa mined, reversed^ and_ qualified by the courts them- eelves^_whenevaE.found_to be defective, ill founded, or otherwise incorrect." ' Records of Courts-martial. — Copies of the records of general courts- martial, authenticated under the seal of the War Department, as provided in Section 882, Eevised Statutes, are admissible in evidence "equally with the originals." " Where the purpose in introducing the record is to provfe previous convictions of the same or similar offenses, the order or orders promulgating the proceedings in such cases may be submitted to the court. If the order of public ation does_ not^ as by not setting forth th e specifica- tions, sTiowTEi'actuarofEense, the original proceedings {i.e., the original or a dulxcertified_copy) shoiUd^e pu t in evidence. ° The Act of March 3, 1877,* makes the judge-advocates at the several department headquarters the custodians of the records of the garrison, regi- mental, and field-ofiicer's courts-martial pertaining to the posts and regiments stationed therein. Those records are required to be retained in such office of record for two years, at the end of which time they may be destroyed. Copies of such records, properly authenticated by the signature of the judge-advocate of the department in which they are of olficial record, are receivable in evideace by courts-martial in cases to which they relate. General Orders of the War Department, etc. — General orders issued from the War Department or headquarters of the Army may ordinarily be proved by printed official copies in the usual form. The court will in general properly take judicial notice of the printed order as genuine and correct. A court-martial, however, should not in general accept in evidence, if objected to, a printed or written special order which has not been made public to the Army without somfe proof of its genuineness and official character. ' Military Orders, Reports, Documents, etc., Filed Elsewhere than in the War Department. — Orde rs, returns, rep orta^records. and other documents pertaining to departments, divisions, arnjj^sjiostej andjOLther^nUtary com~ 1 Swift vs. Tyson, 16 Pet., 18; Anderson's Law Diet. '' Dig. J. A. Gen., 400, par. 30. Except by the consent of the opposite party, the tes- timony contained in the record of a previous trial of the same or a similar case cannot properly be received in evidence on a tiial by court-marlial ; nor, without such consent, cau the record of a board of iuvestigalion ordered in the same case be so admitted. In all cases (other than that provided for by the 121st Article of War) testimony given oijiin a previous hearing, if desired to be introduced in evidence upon a trial, must (unless it be otherwise specially stipulated between the parties) be offered de now and as original mat- ter. Ibid., 39-5, par. 7. ' Ibid., 610, par. 3. A memorandum of the previous conviclious is not sufficient : they must be shown either by the records of the trials or by duly authenticated copies of the orders of promulgation. It is unauthorized for the judge-advocate to introduce or the court to admit, as evidenceof previous convictions (or in connection with proper evidence of the same), the statement of service, etc., required by par. 927, A. R. 1895, to be furnished to the convening authority with ilie charges. Ibid. See, also, zbid., 611, par. 9. * 19 Stat, at Large, 810. See, also, Dig. J. A. Gen., 400, par. 30. ' Dig. J. A. Gen., 396, par. 10. il^ / EVIDENCE. 283 mands, not bein^ donnmen t s pertaining to the sever al,j^fiatiTe departments / within the_mLfiaaing of Sectioii^82_of the ERvised^Staf.ntfis, are proved by j the pro duction of the originals, or. in _ the .ahs^sujfi- of objection, by "eopies duly authenticated by the proper staff offlcer o f the command to which they p'Srcaftr — yhen the oEigiBals.o f_such docum ents or records are produced, they are identified by the proper cus todian, i.e., the post books and records by the'post "adjutant, company books by the company commander, hospital records bytte 'pOiiL surgeon, etc' PKIVATB DOOUMESTTS. How Produced — How Proved. — Private documents d iffer from public documents chiefly as to the kind and amount of testimony necessary to es- tablish their identity, s uch burden of proof, in any case, falling^ upon the part y in \yhosR int erast the pa.per is produced.. In general the best evidence x)f the contents of a paper is that obtained by the production of the instru- ment itself. If it be a sealed instrument, its execution must be proved by the testimony of at least one subscribing witness, unless the document is in the hands of the opposite party, or be over thirty years old and gom es from the proper custodian, in which case J t js_ _said to prove itself , the subscrib- ing witnesses being supposed to be dead. When admitted subject to the foregoing conditions, no testimony will be received to vary its terms in the slightest degree." Notice to Produce ; Proof of Handwriting. — The production of a paper,, if ,/. • , in the hands of_th.eJ3pfiQaite party,^is^obtained by a formal^^ice^^ro£?Mce; ' / ' P if thepa per be in the possession of a thirdpaj^v— that is, in the custody of I,/ 7 one not a partyjn jnteresi^^s p^^^uction jg^compelled by a, subpmna duces I tecum. W hen the means above described have been fully resorted to, or upon satisfactory proof that the paper has been lost or destroyed, or that it is in possession of a person not within the jurisdiction of the court, secondary 'The "enlistment-paper," the "physical-examination paper," and the ' "outline- card" are m-iginnl vin\mgi made by officers in the performance of duty and competent evidence of the facts recited therein. Copies authenticated under the seal of the War Department, according to Sec. 883, Rev. Sis., are eq^ually admissible with the originals. Dig. J. A. Gen., 401, par. 31. The Moi-ning-Report Book is an original writing. To properly admit extracts in evidence, the book should be first identified by the proper custodian, and the extracts then not merely read to the court by the witness, but copied, and the copies, properly verified, attached as exhibits to the record of ti.e court. Ihid , par. 32. A descriptim list is but secondary evidence and not admissible to prove the facts recited therein. It is not a record of original entries, made by an officer under a duty imposed upon him by law or the custom of the service, but is simply a compilation of facts taken from other records. Ibid., par. 33. Copies of pay accounts (charged to buve been duplicated) are admissible in evidence where the .'icoused has by his own act placed the originals beyond the reach of process, and fails to produce them in court on proper notice. So where the originals are in the hands of a person who has left the United States, so that they cannot be reached oa notice to the accused t'> produce them or otherwise. Ibid., par. 84. 2 1. Greenleaf, §§ 27."), 276, and rases cited ; 2 Starkie, Evid., 544-578 ; Thayer, Evid., 1014:-1069 ; Martin vs. Berens, 67 Pa. St., 463 ; Bernart vs. Riddle, 29 id., 96 ; Bast »«. Bank, 101 U. S. 93. ' U. 8. vs. Winchester, 2 McL., 135; Hylton vs. Brown, 1 Wash., 343. 284 MILITABT LAW. --;> ■r \ y evidence may be submitted as to its contents. Such testimony may consist in written, printed, photographic, or letter-press copies, or in parol testimony as to the contents of the paper in question. When written copies are sub- mitted, witnesses are called to prove handwriting, and they testify: (1) from havii^ seen the_dopu,mgnt wjitteji; (3) from having seen writings personally admitted by the, writer to be genuingjand (3) By a comparison^^of writings, the comparison being made between papers already in evidence before, the conrE In Tinglandcomparison of writings proved to the satisfaction of the court to be genuine is authorized by statute, and a similar rule exists in several of the States; in others, howeve r, the comp arison is required t o be m ade of writings already inevTS ince^Jbg^rgaiSon b eing that the introduction of waliBSsji5.t jpertinent to the case may giy.s.rise to f,r§,ud in tt^e^ matter of the selection, or prejudice "unduly the minds of the jury in reaching their finding.' Production of Telegrams. — A court-martial (by subpcena duces tecum; through the judge-advocate) may summon a telegraph-operator to appear before it bringing with him a certain telegraphic dispatch. But it is beyond the power of such court to require such witness, against his will, to surrender the dispatch, or a copy, to be used in evidence.'' ALTERATIONS AND EEASUBES. Nature and Effect. — Whe n an alteration or erasure aE pears-upon, the face of an instrument, _an.d -its_ia]idity is _drawnjnj3|uestion,_the burden of explaming the change falls upon the party who produces the document. ' To the admission in evidence of a letter written and signed by the accused (of which tlie introduction is contested), proof of his handwriting is necessary. Evidence of handwriting by comparison is not admissible at common law except where the standard of comparison is an acknowledged or proved genuine'writing already in evidence in the case. A writing not in evidence and simply offered to be used as a standard is not admissible. Dig. J. A. Geu., 401, par. 36; U. S. vs. McMillan, 29 Fed. Rep., 247. For a full discussion of the subject of comparison of handwriting, see I. Greenleaf, §8 576-581; 1 Wharton, §§ 711-718. See, also, Winthrop, Ch. XVIII. At the trial, in 1894, of an officer charged with a disorder and breach of discipline which involved the killing by him of another officer, there was offered In evidence ou the part of the accused, to exhibit the character and disposition of the officer killed, a copy of a general court-martial order of 1873, setting forth certain charges alleging dis- honest and unbecoming conduct, upon which the latter officer was then tried and convicted, and the findings on the court thereon. Held, that such evidence was wholly inadmissible for the purpose designed. Dig. J. A. Gen., 402, par. 37. ' Ibid., 401, par. 35. In view of the embarrassment which must generally attend the proof, before a court-martial, of the sending or receipt of telegraphic messages by means of a resort, by subpmna duces tecum, to the originals in possession of the telegraph com- pany,* advised that the written or printed copy furnished by the company and received by the person to whom it is addressed should in general be admitted in evidence by a court-martial in the absence of circumstances casting a reasonable doubt upon its genu- ineness or correctness. But where it is necessary to prove that a telegram which was not received, or the receipt of which is denied and not proven, was actually duly sent, the operator or proper official of the company, or other person cognizant of the fact of sending, should be summoned as a witness. Ibid., 896, par. 11. * The subject of the extent of the authority of the courts to compel telegraph companies to produce original private telegrams for use in evidence is most fully treated in an essay by Henry Hitchcocir, Esq., on the "Inviolability of Telegrams," published in the Southern Law Eeview for October, 1879. BVIDENCE. 285- Alterations are usually in the nature of interlineations or erasures. Inter- lineations consist of words or clauses inserted between the lines of an instru- ment; erasures are effected by striking out words or clauses, usually by means of a line drawn through the matter to be omitted. As such altera- tions saggest fraud, it is incumbent upon the party who would benefit by the change to explain its cause and the time of its execution. The effect of a material alteration, unexplained, is to invalidate the instrument.' Altera- tions made at the time of execution of a legal instrument can be made valid by the insertion of a clause explaining them, immediately over the signatures of the parties.' In a sealed instrument and, when no ground of suspicion appears, in other writings as well, alterations are presumed to have been made prior to the coniplete execution of the document,' EXAMIKATION OP WITNESSES." Method of Examination — Oaths — Objections to Competency. — Before testifying, witnesses are sworn by the judge-advocate, or by the court itself in military tribunals having summary jurisdiction. While the forms of oath or aflBrmation prescribed by statute must be administered in every case, any extra-statutory form may also be used which a witness may regard as having special binding force. Objections to the competency of a witness are properly made before the administration of the oath, but will be consid- ered at any stage of the trial, provided the cause of incompetency was not known to exist at the time the witness was sworn; if the objection be sus- tained, the court will disregard any testimony that the witness may have given prior to the discovery of his incompetency. Order of Examination. — "Witnesses are first examined in chief by the party in whose behalf they appear, and are then cross-examined by the opposite party. Considerable latitude is allowed a party in the examination of his witnesses, so long as the questions asked are relevant to the issue. They may then, if necessary, be re-examined by the party producing them. Cross-examination. — Ther ight to cross-examine is in general limited l>*^ to matters statedbjjhejntness Jn__Ws_d^ examination.' As ills' the * p urpose of t he cross-examination t o te st the_credibility of the witness, it is permissible to investigate the situation of the witness with respect to the parties and to the subject of the litigation, his interest, his motives, inclina- ' MonillTO. Otis, 13 N. H., 466; Richmond Mfg. Co. m. Davis, 7 Blacliford (lud.), 412; Boston vs. Benson, 13 Gushing (Mass.), 61; Davis m. Carlisle. 6 Ala., 707. '' Ravisies m. Alston, 5 Alu., 397: Bcoton to. Benson, 13 Cush., 61. " North River Meadow Co. m. Shrewsbury Church, 23 IST. J Law {2 Zabriskie), 424; Matlhews w. Coaltor, 9 Mo., 705; Bcaman ts. Russell. 20 Vt.. 205. * See. also, the cliapler entiiled The Incidents op the TniAi.. •■ Houghton TO. Jonei?, 1 Wall., 702 ; Aurora rs. Cobb, 21 Ind., 493 ; Ookely vs. State, 4 Iowa, 477 ; Helser to. McQrath, 53 Pa. St., 531 ; Campau vs. Dewey, 9 Mich., 381 ; Cai-r vs. Gale, Da v., 328. 286 MILITARY LAW. tions, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description.' On cross-examination, a witness may be asked questions which would not be pertinent or relevant on his examination in chief." While a witness may be cross-examined as to collateral or irrelevant facts witli^v^ew toTest'Iiis accuracy or veracity, the party must be bound by the answers of the witness and cannot adduce proof in contradiction of sjich answers ; ' nor is it com- petent, upon"cross-examination, to question a witness upon mattersTrrelerant to the issue so lely for the pur pose of discrediting h^im.* Degrading ques- tions, also, are forbidden upon cross-examination unless they relate to facts in issue in TUe record.^ Tf a party wishes to examine a witness of the oppo- site side with regard to new matter not introduced by the opposite party, he must maTe theTwitness his own by introducing Tiitn at a subsequent stage of the trial." "" Leading Questions. — Leading q uestions — that is, questions whjch sag- ^i^ gest their_j ),ns3f-ers — are excluded jf_ object ed to by the opposite party. Questions merely introductory in character, que^stions asked fOT pu^o^s_of identification or to assist defective memory, and questions ask ed^L a witness wFo'seemsfo be hostile to the party introducing him are exceptions to.this ; rule. The purpose of cross-examination is to test the credibility of the wit- j ness, and_to that end leading que3tio^s_ may be put in c ross-ex amination, -^': together with questions not otherwise relevant, the purpose of which is to test his_powers of observation, the accuracy of his memory7"and his correct- ness of statement.' ' Winston vs. Cox, 38 Ala., 268 ; Winter m. Burt, 31 Ala., 33 ; Chandler vs. Allison, 10 Mich., 460 ; Storm -cs. TJ. S., 4 Otto, 76. 2 Winter ®s. Burt, 31 Ala., 33. 3 Stevens M. Beach, 12 Vt., 585; Corneliuses. Com., 15 B. Men. (Ky.), 539; U. S. vs. Dickinson, 2 McLean, 325. * Biveus m. Brown, 37 Ala., 423 ; Seavy «s. Dearborn, 19 N. H., 351. ' U. S. vs. White, 5 Cr. C. C. 73 ; U. S. m. Hudhind, 5 ibid., 309. « Phil. R. R. Co. vs. Stirapson, 14 Pet., 448 ; Brown m. State, 28 Ga., 199 ; Patton vs. Hamilton, 12 Ind., 256. See, also, for power of court in control of this subject. Storm m. U. S., 4 Otto, 76; Wills rs. Russell, 10 ibid., 621 ; Chicago m. Greer, 9 Wall., 726. See. also, Starkie on Evid., 10th Ed. pp. 195-224. ■■ V. S. vs. Dickinson, 2 McLean, 325 ; Bevins vs. Pope, 7 Ala., 371 ; Green i>s. Gould, 3 AHen (Mass.), 465 ; Burton vs. Kane, 17 Wis., 37 ; TJ. S. vs. Angell, 4 Fed. Rep., 34. In commencing the examination of a witness, it is a leading of the witness, and objectionable, to read to him the charge and specification or specifications, since he is thus instructed as to the particulars in regard to which he is to testify and which he is expected to substantiate.* So to read or state to him in substance the charge, nnd ask him " what he knows about it," or in terms to that effect, is loose and objectionable as encouraging irrelevant and hearsay testimony. The witness should simply be asked to stale what was said and done on the occasion, etc. A witness should properly also be examined on specific interrogatories, and not be called upon to make a general state- ment in answer to a single general question.! Dig, J. A. Gen., 394, par. 5. * Compare G. 0. 12, Dept. of the Missouri, 186?; do. 36, id., 1863; do. 29, Dept. of California, 1865; do. 67, Dept. of the South, 18T4. + See G. C. M. O. 14, 84, Dept. of Dakota,1877. BVIBENCE. 287 PRIVILEGED QUESTIONS. Nature of Privilege. — Witnes ses are^ permitted^ to^ decline to answer / certa ip r| nfiRf,ian. s^a.Tid in a proper case jdUJ)e_sustained_bj^ the court in so / ^j^^ doing. Such questions are said to be privileqed, and are made so as a matter , ol public policy, with a view to prevent inquisitorial trials, or to forbid the ( disclosure of facts the discovery of which would affect injuriously the public business, or trespass unduly upon certain private relations the continued existence of which it is the policy of the law to secure. The principal cases y of privilege are : ^ 1. State Secre ts. — This privilege, extends to all departments of the i^~ Government, and has its origin in the belief that the public interests would suffer by a disclosure of certain facts relating to the administration of state affairs. It_C2Sfii:a,-iJifi-S±ateiaenJts_^f_persons engaged in the discovery of crimCj^the deliberations of^^urts and of certain bodies. Tike grandTand^pelit juries and boards of arbitration, the results of whose deliberations only the public has a right to know. It extends to the tr ansactions of legislativ e commi ttees^ and to the deliberations of legislative bodies in closed session. li includes diplomatic correspond enc e~and~an~communications Jjetween the prin cipal officers of the several executive departmesko.ri,JBatters of public busmess, together with the proceedings of commissions, courts-martial, and courts of inquiry, and generally all oral or written communications in which the~^roduction of documents or oral disclosures of any kind is restrained by law or would, in the opinion of the Executive, be detrimental to the public interests.' , " 2. Attorney and Client. — T he disclosures made by a client to his cou n- X sel or legal adviser are privileged during the entire period within which *-^^ fhe relation oFattorney and"cl]in¥ exists; and _ the^pn^^g^exJerSs _to_the clerks, agents, stenographers, iDterp rei;ers'i "and o ther employees whose ser- vices are necessary to an attorney or couTiselor intEe transacfimi of his business." Knowledge in relation to^a cause of action, or to a crimjnal offense, obtained by anattorney as the result of his observations as a private ' Gieenleaf, § 251 ; "Wharton, § 578 ; 2 Robertson's Burr's Trial, 501 ; U. S. m. Six Lots of Ground, 1 Woods, 234. Official communications between the heads of the departments of the Government and their subordinate officers are privilesred. Were it otherwise it would be impossible for such superiors to administer effectually the public affairs with which they are entrusted. Dig. J. A. Gen., 398, par. 18. An accused party at a military trial can rarely be entitled to deniiind the attendance, as a witness, of a chief of a staff corps, much less that of the President or Secretary of War, especially as some minor official can almost invariably furnish the desired fads. If, however, tlie testimony of one of these officials be found to be necessary or most desirable, and the same cannot legally be taken by deposition, the court, if convened at a distnnce, may properly be adjourned lo Washington or other convenient point, in order that the witness may be enabled toaltend without detriment to thepublic interests. Ibid., 752, par. 11. ' People «s. Atkinson, 40 Cal., 284 ; Alderman m. People, 4 Mich., 414 ; People m. Blakely, 4 Parker, 176. SSS MILITABY LAW. individual, and not due, in any degree, to his professional relation to his client, may be testified to in any case and at any time. The same is tr ue of informaiigft. gained befpre his gmploymenta^.counsej began or after it has ceased to exist. At common law this privilege extends to attorneys and counsel only, as above explained, and a ny confid ential^ communications made to physicians, clergymen, or others maybetestified^to unless specially privi- leged by statute.' 3. HusEand and Wife. — The disability of the parties to a marriage con- tract, due to their identity of interest, has already been discussed. In addition to this, the law forbids either husband or wife to testify as to any confidential communications made during the continuance of the marriage relation, as opposed to public policy.^ 4. Criminating Questions — By Whom Determined. — At the common law a witness was privileged Jo decline aB5weiiiigjiq.uestjon..wh^ of such answer was to criminate him or expose him to a penalty or forfeiture. TTie~prijilege isjiiat.ol -the-witness,, uoLsf_ii!C£?''*/^?:3^^1'^ belialfTie appears.' T!ie term " criminate " is here used in a technical sense, and means thai; tlie affect of a particular answer will be to expose the witness to a criminal prosecution or to a penal action.'' Nor can the witness be com- pelled to produce documents which would tend to incriminate him,' or be required to mak e what js called ' ' prof ert of the person, ' ' that is, to expose any part of his body usually covered by his clothing, as to remove a shoe and fit his foot into an impression in clay, or to disclose a scar or the like for the purpose of identification.' The question as to whether a particular question shall be answered is one for the court to determine, in view of all the cir- cumstances of the case ; and if, upon such examination and consideration, it appears, that the answer will tend to criminate the witness — that is, if the answer, taken in connection with other facts, will be calculated to form a link in the chain of criminating circumstances — the court will instruct the witness to refuse to answer.' A similar rule prevails in equity procedure. ' People vs. Stout, 3 Parker, 670 ; People vs. Gates. 13 Wendell, 811. 'Hopkiuse*. Grimshaw, 165 U. S., 342; Graves w. U. S., 150 U. S., 118; U. S. ■as. Jones, 32 Fed. Rep. , 569. ' Com. rs. Siiaw, 4 dishing, 594. * If a witueos consents to testify, so as to criminate himself as well as the defendant, he liiust answer all questions legally put to him concerning that matter. Com. m. Price, 10 Gray, 473 ; People m. Carroll, 3 Parker, 73 ; Com. vs. Lannan, 13 Allen, 563 ; Com. ts. Mullen, 97 Mass., 545 ; Com. vs. Bonner, ibid., 587. = Byass m. Sullivan. 21 How. (N. Y.), Pr., 50. 'Blackwellw. State, 3 Grim. Law. Mag., 393; Doyns rs. State, 63 Ga., 699; Stokes vs State, 5 Baxter (Tenn.,) 619. But see State vs. Ah Chung, 14 Nev. ' Wliether the answer may tend to criminate the witness is a point which the court will deterii'.iiie under all the circumstances of the case, and without requlriugthe witness to explain how he may be criminated by the an.swer. State vs. Staples, 47 N. H., 11 ; Commonwealth vs. Brainerd, Thacli. Crim. Cases, 146; Ward vs. State, 3 Mo.. 98; People vs. Mather, 4 Wend., 231 ; Richmond vs. Stale, 2 Greene. 532. See, also, State vs. Duffy, 15 Iowa, 425 ; Floyd vs. State, 7 Fed., 315. But see U. S. vs. Burr, 1 Burr's • EVIDENCE. ^89 i; 5. Questions Tending to Disgrace Witness. — A witness is privileged to^ •■decline to answer a qnestionjyhkh tends to disgrace him, unless the answer Trial, 345; U. S. m. Miller, 2 Cranch C. C, 347; Warner vs. Lucas, 10 Ohio, 806; Poole w. Perritt, 1 Spears (S. C), 138. It is not sufficient to excuse the witness from testifying that he may, in his own mind, think his answer to the question might, by possibility, lead to a criminal charge against him, or tend to convict him of it if made. The court must be able to perceive that there is reasonable ground to apprehend danger to the witness from his being com- pelled to answer. U. S. vs. McCarty, 18 P. R. , 87. The privilege, recognized by the common law, of a witness to refuse to respond to a question the answer to which may criminate him is a personal one, which the witness may exercise or waive as he may see fit. It is not for the judge-advocate or accused to object to the question or to check the witness, or for the court to exclude the question or direct the witness not to answer. "Where, however, he is ignorant of his right, the court may properly advise him of the same. But where a witness declines to answer a question on the ground that it is of such a chariicter that the answer thereto may crim- inate him, but the court decides that the question is not one of this nature and that it must be answered, the witness cannot properly further refuse to respond, and if he does so will render himself liable to charges and trial under Article 63. Dig. Opin. J. A. Gen, 754, par. 17. Where a witness has voluntarily answered as to material criminating facts, it is held with uniformity that he cannot then stop short and refuse further explanation, but must disclose fully what he has attempted to relate. This view is adopted by the text- writers, and is very well explained in several of the authorities, where the principle is laid down and enforced. 1 Starkie Evid. (10th Am. ed.) 314 ; Roscoe's Grim. Ev., 174 ; 1 Greenl., sec. 451 ; 3 Phil. Ev., 935 ; 3 Russ. Or., 931 ; Coburn m. Odell, 10 Foster, 540 ; State vs. K., 4 N, H., 563 ; State w. Foster, 3 Poster, 348 ; Foster vs.- Pierce, 11 Cush., 437 ; Brown vs. Brown, 5 Mass., 330 ; Amherst vs. Hollis, 9 N. H., lOJ ; Low vs. Mitchell, 18 Me., 373 ; Chiiraberlain vs. Willson, 13 Vt., 491 ; People vs. Lohmaun, 3 Barb. S. C, 316 ; Norfolk vs. Gaylord, 38 Conn., 309. Upon a trial of a cadet of the Military Academy, the court (against the objection of the accused) required another cadet, introduced as a witness for the prosecution, to testify as to facts which would tend to criminate him. Held that such action was erroneous, the not answering in such cases being a privilege of the witness only, who (whether or not objection were made) could refuse to testify, and who, if ignorant of his rights, should be instructed therein by the court. Dig. Opin. J. A. Gen., 400, par. 37. At the trial of a cadet of the Military Academy, the accused, while on the stand as a witness, was advised by the court tliat while it was his privilege to refuse to answer any ■question that might tend to criminate him, yet the court would "put its own interpreta- tion " on the fact of his refusing. Held a grave error, which might well induce the disapproval of the finding and sentence adjudged. Ibid., par. 38. Section 860, Eeviaed Statutes. — In the case of Tucker vs. United States (151 U. S., 164, 168), the Supreme Court of the United States has placed an interpretation upon certain clauses of Section 860, Revised Statutes. That section contains the requirement that "no pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture : provided that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as afore- said." In its decision the court held that "pleadings of parties" are the allegations made by the parties to a civil or criminal case for the purpose of definitely presenting the issue to be tried and determined between them. " Discovery or evidence obtiiined from a witness by means of a judicial proceeding" includes only facts or papers which the party or witness is compelled by subpoena, interrogatoiy, or other judicial process to disclose, whether he will or no, and is inapplicable totestimony voluntarily given or to documents voluntarily produced. The clause as to discovery or evidence is conceived in tlie same spirit as the Fifth Amendment of the Constitution, declaring that " no person shall be compelled in any criminal case to be a witness against himself"; and [as] the Act of March 16, 1878, (20 Stat, at Large, 30,) enacted that a defendant in any criminal case may be a witness at his own request, but not otherwise, and that his failure to make such request shall not create any presumption against him. Tucker vs. U. S., 151 U. S., 164, 168 ; Boyd vs. U. S., 116 U. S., 616 ; Wilson vs. U. S., 149 U. S., 60 ; Lees vs. 2^0 MILITARY LAW. J?^^ ^jeardjregflji: np,on jlie issne ; ' and the conrj maytin-it s discretio n. ^li£Z_25 4^,^^^° '"^ ^ qaestion which tends, not_to criminajtej^butjonly to defraHF or disgrace the jfitness.' " CEEDIBILITT OF WITNESSES. / Credibility in General.— T1lTft_nrfidibi1U,y of a. wit.nfiSH i?^ his wortbinpf^a ^ f belief . In a civil trial it has been seen that the credibility of witnesses is determined by the jury; in the procedure of courts-martial such questions, like those relating to competency, are determined by the court. The pre- sumption as to credibility, like that respecting competency, is always in favor of the credibility of the witness; in other words, the law presumes, and the court is bound to act on the presumption, that a witness testifying under oath speaks the truth ; ' but this presumption is not conclusive and may be overcome, wholly or in part, by the witness himself: first, by his demeanor on the stand, or by his behavior under cross-examination ; second, by testi- mony directed against his credibility by the opposite party. In determining the weight to be attached to the testimony of a particular witness, regard must be had to his capacity, whether he was able to see and understand the transaction, whether he was attentive or careless, prejudiced or impartial, or whether he has some sinister motive that might lead him to fabricate that which he did not see.* Where one witness testifies positively aijd another negatively, b pjth.j3eing-ai:edible,^xejater wei ght jg^to be .givjeo to ^ eTormer; so , too, the test|nTonj pf_one,jQtness .Ycho testifies positively tp^a fact is entjtle£L.to,J]!ipre consideration than that of several whose, statements are merely negative.' In determining the credibility of testimony, the manner of the witness in respect to coherency or consistency, his memory, whether accurate or L'. S., 150 U. 8., 476. No statute which (like Section 860, R. S.) leaves the party or witness subject to prosecution, after he answers the criminating question put to him, can have the effect of supplanting; the privilege conferred by the Constitution. Counsel- man vs. Hitchcock, 142 U. S., 547. The immediate object of the legislation of February 25, 1868, from which section 860, R. S., is taken, was to protect against certain forfeitures agents of the Confederate States whose testimony in regard to assets of the Confederacy it was desired to obtain abroad. Congressionsil Globe, 40th Cong., 2d sess., part 3, p. 1334. ' Lohman w. People. 1 Comst., 379 ; Howell «s. Com., 5 Gratt., 664. See, also. People m. Rector, 19 Wend., 569 ; Clementine vs. State,- 14 Mo., 112 ; Barnes vs. State, 19 Conn., 398. See, also, note 5, page 286, ante. ' State «s. Blansky, 3 Minn., 246. To excuse the witness from answering, it is not sufficient that his answer will have a tendency to expose him to infamy or disgrace ; the question must he such that the answer to it which he may be required to make, by the obligation of his oath, will directly show his infamy. People vs. Mather, 4 Wend., QQQ ' Comstock vs. Rayford, 20 Miss., 369. "People vs. Bodine. 1 Eilm. (N. Y.) Sel. Cas., 36. 'Pool vs Devers, 30 Ala., 672; Harris vs. Bell, 27 Ala., 520; Auld vt. Walton, 12 La. Ann., 129: Todd vs. Hardie, 5 Ala., 698; Johnson vs. State, 14 Ga., 55; Coles vs. Perry, 7 Tex., 109 EVIDENCE. 291 defective, and his powers of observation should be carefully considered ; so, too, his position with regard to the parties, his relationship to the accused, his hostility to, or friendship for, the accused or for the prosecutor, and his interest in a conviction or acquittal are all matters which may seriously afEect the amount of weight to be attached to particular testimony. "Where certain grounds of incompetency have been removed by statute, as where an accused person has been permitted to testify in his own behalf, it is usually provided that the cause of incompetency so removed may be established in evidence Avith a view to afEect the credibility of a particular witness; and when such cause of incompetency has been established, either by the admissions of the witness or by the evidence of others, the weight to be attached to the testimony of such a witness is very materially diminished. Conflicting Testimony. — If witnesses contradict each other, the court must determine the degree of credibility to be attached to their testimony. In case of conflict, the greater weight should be given to the testimony of those witnesses whose position gave them the best opportunity for observa- tion.' If such conflict arises in the testimony of witnesses who are alilse unimpeached and have equal opportunities for obtaining information, the testimony of the greater number must prevail ; " so, too, where there is an irreconcilable conflict in the testimony of witnesses, and circumstances of suspicion attach to their credit, on both sides, the balance of evidence will be regarded as in favor of the party having the greater number." 3 "'^'-- Nature and Character. — What are known as presumptions play an important part in the law of evidence, the nature of which will now be explained. Presumptions. are either legal assumptions, Qr logi cal in ferences from the_ exis.tenca of certain facts, as, to the existence or non-existence of factaiu issue. If logical inferences, they are presumptions of fact ; if legal assumptions, they are presumptions ofja^.' "?resumptions of Fact.— Presumptions of fact are mere logical inferences, or^cqnclusionSjas. to the existence of a particular facty drawn from the exist- ence^or non-existence, of other jfacts^, The facjgl_u]Jg£ jyhich such a pre- sump^tionjLrebased, jna particular case, must be derived from the evidence su^jftitted; and to justify a court-martial in reaching a conclusion in respect to the guilt of an accused person, the facts from which it is inferred must not only be consistent with the theory of guilt, but must be irrecon- cilable with any reasonable theory as to his innocence. Presumptions of Law. — Pr^umptions_of^Jaw are assumptions of the truth of certain facts without proof of_their existence,^ made with a view to facilitate the administration of justice, and to dispense with the introduction of testimony in their support, or to make it for the time being unnecessary. A presumption of law, therefore, assumes a certain fact or set of facts to exist as a probable consequence of the existence of other facts, either abso- lutely, as will presently be explained, or until the contrary has been proved to exist. The assumption that public officers perform their .duties in gg.od the interrogatories were addressed, and the accused objected to its introduction, but the objecliou was overruled by the court, held error ; the fact that the intended deponent was but the agent, in the transaction inquired about, of the person who actually furnished the deposition not being siifflcieiit to make such deposition admissible except by consent of parties. Dig. J. A. Gen., 10.5. par. 6. ' Di.g. J. A. Gen., 106, par. 13. A deposition is not in general satisfactory evidence for purposes of personal identification by description, and should not be resorted to for the i(]entification of an accused where reliable oral testimony can be obtained. Ibid., par.- 12. » Ibid., 105, par. 5. ' Am. and Eng. Encyc. of Law, article Presumptions. ; E7IDENGE. 299 faith, that inf^nts^ are _ incapable of making contracts, and the like, are 'examples of sach presumptions. Presumptions of law are again classified into conclusive or absolute pre- sumptions and disputable presumptions.' ^ conclusive, absol ute, or indis- i / ?**^2^i£^^^**£i£^H2Lii5Ja£JEM£fe2?s'^''^^^ a fact or condiiion of^^^jtoexist, and forbids all proof to the contraryT" Such are the presumptions that a - cr ime c qniBiitteJ^y the wife in the presence of the husband is committed / by his direction or coercion, that a child under seven cannot commit crime, or'that^a boy under fourteen or a girl under twelve is incapable of matri- d!tffiiai'coQsent. Ajdi^ui able presumption consists in the assumption of the truth of a \ fact until 'tlie'TOniErary IS ^oven. Such are the presumptions that .an aroused^^^^^^ ''^^o^^^'' •^'^'''i^ proven guilty, that an assault with a deadly we^on presumes an intent to kill, or that persons are sane,'living, or com- petent to testify until the opposite has been established in evidence. To this class'Serong most of the presumptions which are recognized in the practice ofcqiirts - mjirtial . Effects. — Presumptions of law are arbitrary in their nature and assume certain rules of conduct to have been observed in the past. Some of them take the form of legal enactments — as in the case of statutes of limitation — others are customary or are derived from the common law. Presumptions of fact become operative only when the facts upon which they are based have been conclusively established in evidence and the inferences from them are so strong as to remove all doubt and uncertainty from the minds of those whose dnty it is to draw them. Presumptions of law are, as a rule, continuous and favor an existing status, and the burden of showing the opposite to be true rests upon him who asserts it. Hen ce a person is presumed to be living until^seven years^ have elapsed sincghe was last heard f rqpa ; he is then presumed to bejiead until the con- trary has been shown. A person having a legal residence or domicile is pre- sumed to continue in such residence, and a similar rule applies to sanity, com- petency, and marriage. Presumptions also favor order, regularity, and good faith. The power of persons to contract, the legitimacy of children, the proper and regular execution of instruments, the validity of public acts, the constitutionality of laws, the correct performance of administrative duties, and the like, are examples of this class of presumptions. So, also, the pos- session of real or personal property presumes ownership, the acceptance of services presumes an agreement to pay for them, the mailing of letters, where a delivery exists, afEords a presumption of delivery, while the fact of registration afEords a very strong presumption of such delivery, ' II. Wiiaiton Evirleiice, g§ 1226-1365 ; Wharton Crim. Law, § 707 ; I. Greenleaf, g§ 14-48 ; Stephens Dig. Evid. A.rt. 1 ; 1 Best, §§ 303-334. CHAPTEE XVI. MARTIAL LAW. MILITARY G0TEEN5IEXT. MILITARY COMMISSIONS. Martial Law or, to speak more correctly, Martial Eule, is a term applied to tlje temporary governmentj^ by military aiitliority, of aj)lace or district io / j?liicli, -by reason, of the existence of a state of war and , ftg PSftdfil^C-y 9^ / military Qpfir!j,tiona, the ciTlLgazernment is^^ f or the time bein g, jijiable to ' exercisg..its.iiactiQJia.,', Such inability may be due to the occupation of a portion of the territory of a State by the enemy, or to the existence of an insurrection or rebelliou of such magnitude as to suspend, for the time, the operation and execution of the laws. , Martial law may be regarded from several points of view : 1. In its Application to the Occupied Territory of an Enemy in War. — In this case it is more appropriately called the law of Jwfitih nng^nMnp,, ani^ j its exercise. is. authorized^ byjhe usage of nationsT Being regulated by y hat / are kiiown_as_ the Laws_ of WarTafcnctT or subdivigip.n..,of. Put^iaJnter- national Law. When Applicable. — Jtapplies to territory over which the Constitution and laws of the IJaited StatesTiave no operation,_ and in which the giiiiranties which are contained in that instrument are entirely ineffective. Its exercise is sanctioned because the local authority is unable to maintain order and protect life and property in the immediate theatre of military operations and, to some extent, because the invading belligerent may, as a war measure, suspend, wholly or in part, the municipal law of the enemy in such territory." ' The terms Martial Law aud Military Law are by no means synonymous. Military law "is the code of rules for the government of the Army and Navy ; it is a depart- ment of the municipal law applicable to a small poi tion of the people engaged in a special service ; it is enacted by Congress aud executed by the President ; civilians are, by the very terms of the Constitution, exempted from its operation."* Martial law, in its extreme form, is described by a recent writer as " the suspension of all law but the will of the military commanders entrusted with its execution, to be exercised according to their jud.ement, the exigencies of the moment, and the usages of the service, with no fixed and settled rules or laws, no definite practice, and not bound even by the rules of the military law."* ^Dig. J. A. Gen., 471, par. 11. The law of hostile occupation (military govern- ment) " is military power exercised by a belligerent, by virtue of his occupation of aa * Finlason on Martial Law, 107. 300 MARTIAL LAW. 301 Muj'u hostile occupation, however, does not operate ipso f ado to suspend the Idws ill force in the occupied territory. It is a principle of the law of war that the municipal laws of a conquered country continue in force during the military occupation by the conqueror, except in so far as the same may necessarily be suspended, or their operation be affected by his acts.' Such conqueror or belligerent occupant " may suspend or supersede them, for the time being, but, in the absence of orders to that effect, they remain in force." ° " Supreme military authority in a city " or other place " is not incom- patible with the existence and authority of courts of civil jurisdiction and . procedure."' But.a Jiac&ikB-Com'ts of a hostile country are left open by \^ th e conqueror, i t is only the citizens of s u ch country t hat are subiectto their ju risdiction: the ofiicers a n d^oldiers of. t he oc cupying.jiiimx.affi-ltL.no njj£i]a£ramenabl9,,to th^, sam£.'. 2. Application to Territory of the United States in Insurrection or Rebellion. — -When an insurrection has attained such strength and volume that the public armed forces are called upon to suppress it, and a state of public war exists, which is recognized as such by tlie several departments of the Grovernment, participants in such insurrection or rebellion become, for the time, public enemi_6Sj^and_th^e^temtory constituting the th^eatre of opera- tions becomes t he territo ry of the ^fiflSffljC- Such was the case in respect to severaT'SSJesof the Union during the War of the Rebellion. The military operations undertaken with a view to its suppression were carried on in accordance with the usages of war. Citizens of or residents in such territory were regarded by the courts of the United States as alien enemies, and " all enemy's territory, over such territory and its inhabitants.* Thi< belongs to the Law of War, and therefore to the Law of Nations." Man. f.ir Courts-martial, '6. " By the well-recognizpis., 566; Dow »s. Johnson, post. ■"This principle has recently been illustrated hy the Supreme Coirt in the cases of Coleman vs. Tennessee, 7 Otto, 509; Dow vs. Johnson, 10 Oil', 158, 166. * Military g;overnmet)t " is the antlioritv by which a commander p:ove?'ns a conquered district when the local inf^fiir.utinns have been overthrown and the local rulers displaced," as a consequence of mili- tary operations, "and before Cnngft-ess has had an oiiporruniry to acti imder its power to dispose of captures or ro p;overn territorie.s. The ain.horiry, in fa.ct. belotiffs to the Pi-esident; and it assumes the war to be still raging, and the final status of the conquei'ed territory to be undetermined, so that the apparent exercise of civil functions'is really a measure of host»li*y." Pomeroy, Constitutional Law, 8d ed., 477. 302 MILITAMY LAW. trade and intercourse with the enemy, except so far as permitted by the President under authority from Congress, or in rare cases by a commanding general in the field representing the President, was necessarily suspended. " ' ' Dig. J. A. Geij, 468, par. 1. See Prize Cases, 2 Black, 666-9; Dow m. Johnson, 10 Oito, 164; Blown m. Hiatt, 1 Dillon. 372: Phillips vs. Hatch, id., 571; Sanderson vs. Morgan, o9 N. Y., Zdi; Perkins cs. Kogers, 35 Intl., Ia4; Leatljers m. Com. Ins. Co., 3 Bush, 089 ; Hedges ts. Price, 2 West Va., 192 ; The Ouachila Cotlon, 6 Wallace, 521 ; Cappell »«. Hill, 7 id., 543. 554; McKee m. United States, 8 id., 163; United States vs. Grossmayer, 9 id., 72; iloutgomery vs. United States, 15 id., 395; Hamilton vs. Dillin, 31 id., 73; Mitchell vs. United Stales, id., 350; SliiUhews vs. McStea, 1 Otio, 7; Dow vs. Johnson, 10 id., 164; Kershaw vs. Kelsey, 100 Mass., 561; Lieber's Instructions, G. O. 100, War Dept., 163, par. 86. Besides the suspension incident to the stale of war, a suspension of curamercial intercourse with the enemy was specially directed by Act of Congress of July 13, 1861, and proclaimed by the President on August 16, 1861. By authority conferred by the same siatute. General llegulations concerning commercial intercourse with and in the Stales declared in insurrection were appiovLd bj' the President, January 26, 1864, and pubdshed in G. O. 58, Dept. of the Gulf, of April 39, 1864. Non-intercourse. — It is a fundamental principle of the law of war that, during a state of war, all commercial intercourse between tlie belligerents is interdicted and made Illegal e.xcept wlieu and where it may be expressly authorized by the Government. See note 1, supra; Dig. J. A. Gen., 46ti, par. 1. Utt'enses against tbe law of non-intercourse heti\een the belligerents in time of war are no less such when committed by foreigners Iban vhen committed by citizens. Thus where certain persons made tlieir way e;irly in the late war from Scotland to Souih Caro- lina, engaged for a considerable period in the maniifaclure of treasury notes for tbe Confederate authorities, and at the end of tlieir cmploymmt came secretly and without authority into cuir lines with the design of returning to their home, held that, tliongh British subjects, they had identified themselves witli the cause of the enemy, and were properly .amenable to trial for the offense of penetrating our military lines in violation of the laws of war. Jbid., 469, par. 4. See, also, pars. 5 and 6, Hid. Correspondence with the Enemy. — Held (January, 1865) that a system of correspond- ence wbicb had been concerted and maintained between norlhern and southern news- papers by means of an inlerchange of pulilished communications entitled " Personals " was an evasion of the rule interdicting intercourse with the enemy in time of war, and, not being within the regulations eslabli-shed for correspondence by letter between the lines by flag of truce, should not, however innocent might be many or most of the com- munications, be sanctioned by the Government, but that the proprietors of the nor hern newspapers concerned should be notified that unless the practice were discon{inued lliey would be liable to be proceeded against for promoting correspondence with the enemy in violation of the laws of war or of the special Act of February 25, 1863.* Ibid., 470, par. 8. There can be no doubt as to the authority of the commander of an army in occupa- tion and government of ihe enemy's country to suppress a newspaper or other publica- tion deemed by him to be injurious to the public interests in exciting opposiiion to the dominant aulhorily or encouraging tbe support of the enemy's cause on the part of the inhabitants. A newspaper may be a powerful agent for such a purpose, and when it is so it may, under the laws of war, as legally be silenced as may a fort or battery of the enemy in the field. Ibid., 469, par. 7. See, also, the 46th Article of War. Contributions, etc. — The taking possession, by the order of the commander of the military department at New Orleans, for tbe use of the military service in the prosecu- tion of the war, of moneys belonging to enemies on deposit in the banks of that city, while occupied (in 1863) by our Army, Jield an act justified by the strict law of war.f Ibid.. 470, par. 9 Contributions of money exacted from the enemy by competent military authority * See a. O. No. 10. Department of the East, IRfiS. + See New Orleatif; vn. Sreamhoat Company. "20 Wallace. 394 ; Witherspoon vs. Farmers' Bk., 2 Duvall, 497. But in Planters' Bank vfi. Union Ek . IC Wallace, 463, this particular order was held to have been an exceeding of authority, not because unauthorized by the law of war, but for'the reason that a pre- vious commander, General Butler. b,v his proclamation, on first occupying the city, of May 1, 1868. had pledged the Government to the holding inviolate of all rights pf property. And see The Venice, 2 Wallace, 258. MARTIAL LAW. 303 3. Application of Martial Law to Domestic Territory in Case of Civil Disorder, or of Resistance to the Execution of the Laws. — This subject may also be regarded from the point of y\&N of its application, in a modified form, to a portion of the territory of the United States in which, by reason of civil disturbance or resistance to the execution of the laws, the proper civil authorities are unable to preserve the peace or to afEord adequate pro- being justified by the law of war and conquest,* lield that a tax of five dollars per bale, levied (in 1864) by tbe military commander at New Orleans, General Canby, upon cotton brought into that city and applied to hospital, sanitary, and chaiitable purposes, was authorized under the discretionary power with which such a commander was properly invested in time of war.f Dig. J. A. Gen., 470, par. 10. Military Courts. — It is authorized by the laws of war for a military officer command- ing in time of war in a region in military occupation, and where the ordinary courts are closed by the exigencies of the war, to appoint a special court or judge for the determina- tion of cases not properly cognizable by the ordinary military tribimals. In the late war such courts were not unfrequently constituted, and were commonly designated provost courts. Such courts had no jurisdiction of purely military offenses (i.e., offenses which the Articles of War make cognizable by court-martial), and were therefore not properly authorized to impose forfeitures of pay or other strictly military punishments upon officers or soldiers of the Army. These courts were in general resorted to as sub- stitutes for the ordinary police courts of cities, and their jurisdiction was in general con- fined to cases of breaches of the peace ahd of violation of such civil ordinances or military regulations as might be in force for the government of the locality. Some of these courts, however, took cognizance, in the course of their existence, of cases of very considerable importance, civil as well as criminal. J Ibid., 471, par. 12. * Lewis vs. MeGuire, wing year, by the Act of Congress of March 3, 1863, (13 Stat, at Large, 755,) it was. provided "that during the pre.sent rebellion the President nt the United States, whenever in his judgment the public safety may require it, is authorized to sus- pend the privilege of the writ of habeas corpus in any ca=e throughout the United States •or any par.t thereof ;" Congress, by thus asserting the right in itself to authorize the sus- pension, implying that, in its opinion, the power to suspend did not reside in the President.* Ibid. ^ *Theq[uestion whet.her the President was authorized, in his own discretinn and indopendenflv of the sanciioD of Congress, to exercise this power wns much discussed early in th^ late war. The fullest argument in fnvor of the existence of the nower in the Pre.sident is contained in Mr. Horacn Binney's treatise on " The Privileee of the Writ of Habeas Corpus under the Constitution " And see, also, Ex parte Field, 5 Blatch.. 6S; Opinion of -\tr.-Oen. Bdtes in 10 Opins.. 74. The weig:ht of judicial aurhority, however, was the other wav. See Ex parte Merrvman, Taney, 346; McCall vs^. McDowell. 1 Abbott U, S. R., 913; Griffin vs. Wilcox, 37 Ind., 383; In re Kemp, 16 Wise, 359; In re Oliver, 17 id,, 681; In re, JMurphy, Woolworth, 141. , ■ 322 MILITAMY LAW. the proclamation of martial law has already been shown, since martial law results, not from legislation or from executive or judicial action, but from imperative necessity. It is also well settled that Congress alone has power to exercise the authority conferred upon the Federal Government by the clause above cited.' How Suspended; Effects. — It will be observed that the Constitution confers authority upon Congress (in a certain condition of emergency, aris- ing from rebellion or invasion) to suspend, not the writ itself, but the privi- lege of the writ; that is, to deny to an arrested person the remedy afforded by the writ in the class or classes of cases specified in the suspending statute. The writ issues in the usual form, and return is made in the usual manner. If the return shows the case to fall within the statute of suspension, release is denied and the prisoner is remanded to custody. A suspension of the privilege of the writ is thus seen to deprive an arrested person of the right to secure his release by a resort to the writ of habeas corpus. It confers no power to arrest, however, nor does it validate an arrest illegally made." ' The suspeusiou of the writ does uot in the least affect the aulhoiity over arrests ; the power to suspend does not enable Congress to allow, or the Executive to make, arrests without legal cause, or in an arbitrary or irregular manner; but merely enable* the Government to detain a prisoner, arrested for good cause, for an indefinite lime with- out trial or bail. Suspending the writ does not legalize seizures otherwise arbitrary, nor give any greater autliority to the Executive than that of detaining suspected persons in custody to whom it would else be obliged to bring to a speedy trial or release on bail. Pomeroy Const. Law, §708 ; Ex parte Milligau, 4 Wallace, 2, 115. Under the authority conferred by the Constitution, the privilege of the writ has once been suspended by Congress. The Act of March 3, 1863,* empowered the President to suspend the privi- lege of the writ in certain cists. The same enactment required the Secretaries of State and of War to furnish the judges of the several Circuit and District Courts with lists of the names of the persons arrested in their respective districts. If the grand juries met and adjourned witliout finding bills against such persons, the judges were to release tnem on their own recognizances. If within twenty days after the passage of the act, or within twenty days after their arrest, lists were not furnished, and the arrested per- sons were not indicted by the grand jury, the persons so held in arrest might petition the court, alleging under oatli the facts ; and the judges were required to examine into the ca\ise of liolding and. it it were found to be unlawful, to release them from custodj'. ^ On September 15, 1863, and pursuant to the Act of March, 1863. above ciled, the President issucil a proclamation su.spending the privilege of the writ generally, and "thioughont the United Stales" in all cases "where, by the auihoritv of the Presi- dent of ihe United Stales, military, naval, and civil officers of the United States, or any of them, hold peisons under their command or in their custody either as prisoners of war. spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled or drafted or mustered or enlisted in or belonging to the land or naval forces of the United States, or as deserters tlieref lom, or otherwise amenable to military law, or the Rules and Articles of War, or the rales or regulations prescribed for the military or naval services by authority of the President of the United States, or for resistin;^ a draft, or for any other offense against the military or naval service." In a case in which, b}' the operation of this last proclamation, the writ was suspended, held that any judge or court, whether of the United States or of a State, woidd be required to dismi.ss the writ, on being advised (in the manner and form indicated in the Act of M.arch 3, 1.863. s. 1) that the party sought to be relieved was " detained as a prisoner under the authority of the President." Dig. J. A. Gen., 431, par. 1. By a proclamation of December 1, ISfi.i, the President " revoked and annulled " the . suspension (by proclamation of Sept. 15, 1863) of the privilege of the writ in certain States, including New York. Held that such revocation did not operate to authorize the discharge, by a court of this State, nf a prisoner detained in military custody under color of the authority of the United States. Ibid., 483, par. 2. * 12 Stat, at Large, 755. CHAPTEE XVIII. THE EMPLOYMENT OF MILITARY FORCE. The War Powers of the United States. — The pow er to raise and support armies,' to maintaiiij;ja£y»' ^V.^. tiOAf-^^Vf'''^^^' isvflfjtp.d hy thg nrmsf^ihiTtinTi "Tntlie {jongr^ofjhe Uiiited-S,ta.ti^ the power to command the establish- "STents^ createdTand to carry on military operations in pursuance of such declaration is vested by that instrument * in the President as the constitu- tional commander-in-chief. It is also within the power of the Executive to recognize the existence of hostilities in advance of such formal declaration, as in the case of invasion or insurrection ; and he may resort to such meas- ures, with a view to resist or suppress such invasion or insurrection, as may seem to him best calculated to accomplish that purpose." T^n the eyerf ipfi of military command and in the con duct pf_nnlitary operations the President is not subject to legislative or judicial control." Powers of the President as Commander-in-Chief. — As commander-in- chief, the President is authorized to direct the movements of the land and naval forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operations of our institutions and laws beyond the limits before assigned to them by the legislative power.'' The power of command and control reserved by the crown was placed by the Constitution in the hands of the President.' ' Constitution of the United States, Article I, Sec. 8, Clause 12. « Ibid , Anicle I. Sec. 8, Clause 13. ^ Ibid., Article I, Sec. 8, Clause 11. War may be "declared" by a formal recog- nition of its existence as well as by a declaration in advance. . Act of June 18, 1812 (3 Stat, at Large, 7.55); Talbot vs. Seaman, 1 Cniuch, 28 ; Bas w. Tingey, 4 Dall., 37; Talbot vs. Janseu, 3 Dall , 133 ; Tbe Eliza, 4 Dall., 37 ; The Prize Cases, 2 Black, 635 ; Tyler ■»« Defrees, 11 Wall., 381 ^ Constitution. Article II, Sec. 2. 5 The Prize Cases, 3 Black, 635, 668 • Mississippi m. Johnson, 4 Wall., 475 ; State vs. Kennon, 7 Ohio St., 546. ' Fleming vs. Pnge, 9 How., 603, 615. 8 Street vs. U. S., 24 Ct. Cls., 230; 25 ibid., 515; 113 U. S., 299. The following sections of the Revised Statutes provide for calling forth the militia in case of invasion or rebellion: whenever the United States are invaded, or are in imminent danger of invasion from any foreign nation or Indian tribe, or of rebellion against the authority of 323 ^ -; 324 MILITARY LAW. Subordination of the Military to the Civil Power. — In the preparation and adoption of the State and Federal Constitutions, it was the purpose of the people to secure that maintenance of civil order, hased upon the recogni- tion of individual rights, which is known to the common law as ' ' the preservation of the peace." This is accomplished by the enactment and enforcement of such laws, both civil and criminal, as seemed to those who " have enacted them best suited to accomplish that purpose. The agencies provided for the enforcement of those laws are exclusively civil in character, and such military institutions, in the nature of militia forces or permanent establishments, as have received constitutional recognition are maintained under such limitations and restrictions as are calculated to insure their strict subordination to the civil power. Such military authority as is vested in the President or in the Governors of the several States may be exercised (l)_injhe support of the pro per civil authorities in the executio,a_Qlihe„lawSj_j^nd (2)J^thejmaintenaiice of order iiiTTstricts in which, by reason of insurrection or rebellion, the civil authorltylias beeiTwholly or partially displaced and is for the time unable to exercTseTfs functions.' "The Execution of the Laws. — The power of the President to employ the military forces of the United States in the conduct of public war, as in resistance to invasion, or in the suppression of insurrection or rebellion, has already been described. The Constitution also vests in him the duty of executing the laws of the Union." While the responsibility for their correct tbe Government of the Uuited Stales, it shall be lawful for Ibe President to call fortli sucli number of tbe mililia of tbe State or States most convenient to tbe place of danger, or scene of action, as lie may deem necessary to repel sucb invasion or to sup- press sucb rebellion, and to issue bis orders for that purpose to sucb officers of the militia as be may tliink proper. Section 1642, Rev. Stat. Wben tbe militia of more than one Stale is called into the actual service of tbe United Stales by tbe President, he sliall apportion them among such Slates according to representative population. Sec. 1643, ihid. Tlie militia, wben called into Ibe actual service of the Uniled States for the suppres- sion of rebellion ai^ainst and resistiince to Ihe laws of the United Slates, shall be subject to tlie same Rules and Articles of War as tbe regular troops of the United States. Sec. 16^4. bid. ' Luther vs. Borden, 7 How., ]. Tbe Act of February 28. 1795, (1 Stat. L., 424,) authorizing the President, under certain circumstances, to call out tbe militia is constitutional, and the President is tbe final judge of the emergency justifying sucb a call. Martin m. Mott, 12 "Wheat., 10 By this Act tbe power of deciding whether tlie exigency bad arisen upon which tlie Government of the United Stales is bound to interfere is given to tbe President. He is to act upon the application of tbe legislature or of tbe Executive, and consequently be must delermine what body of men constitute tbe legislature, and who is the governor, before he can act. Tbe fact that both parlies claim the ri^'bt to the government eaiinnt alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are ."ipeaking, it is a ca,«e of domestic violence, and one of the parties must be in in-urrection against tbe lawful government. And the President must of necessity decide which is the government and which party is unlawfully arrayed against it before he can perform the duly imposed upon him by the Act of Congress. Lutber vs. Borden, 7 How., 1. * Constitution, Art. II, Section 1. THE EMPLOYMENT OE MTLITABT EORGE. 325 execution rests upon the President, as the head of the executive branch of the Goyernment, his duty in this regard is performed through agencies, called Executive Departments, which are placed at his disposal by law. The heads of these departments are the constitutional advisers of the President ; they are known severally as cabinet officers and constitute, collectively, the cabinet or constitutional ministry. Each of these departme'nts is composed of agents created by law, called public oiiicers, who are entrusted with the specific execution of the laws of the United States. As has been seen, these agencies, save in the War and Navy Departments, are exclusively civil in character and are su.fficient in ordinary times to the adequate enforcement of the enactments of Congress. At times, however, on account of civil disorder or by reason of opposition to the enforcement of particular statutes, the civil agencies above described are unable to enforce the laws, and in such cases Congress lias, by appropriate legislation, empowered the President to employ the land and naval forces of the United States in support of the exe- cution of the laws.' Such statutory authority exists in the following cases: To Execute the Laws of the Union.' — The Eederal Government " lias the right to use physical force, in any part of the United States, to compel obedience to its laws, and to carry into effect the powers conferred upon it by the Constitution." ^ The entire strength of the nation may be used to enforce, in any part of the land, the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its ^ care. T he strong arm of the national jGovernment may be put_forth to //^ b rush jj,wayi. ^Lja^structions to ,tJia,lxSdomu.Qf JlntscatatB, c_ommerce_or_the ^^ t ransportation of ..the jmLs-— If the emergency arise, the Army of the nation and all its militia are at the service of the nation to compel obedience to its laws.' ' Constitution. Art. I, Ser. 8, Clause, 15; Sections 1643-1644 and 5397-5300, Rev. Slat. 2 ExpmU Siebnld, 100 U. S., 371, 395. ■* In re Debs, 158 U. S., 564. 582; In re Neagle, 135 TJ. S., 1; Ex parte Siebold, 100 U. S., 371, 895; U. S. ««. Kirby, 7 Wall., 482. The power to enforce its laws and to execute its functions in all places does not delegate from the power of the State to execute iis laws at the same time and in the same places. The one does not exclude the olher except where both cannot be executed at the same time. In that ra=e the words 'of the Constitution itself show which is to yield ; "this Constitution and the laws of the United Slates which shall be made in pursuance thereof . . . shall be the fupreme law of the land." Although no State could establish and maintain a permanent military government, yet it may ti^e its military power to put down an armed iiisurrecti(m too strong to be oonlrolled by the civil authority. The State must determine for itself what degree of force the crisis demands. Luther m. Borden, 7 How., 1. See, also, 16 Opin. Att.-Gen., 163. The nations] Government has the right to use physical force in any part of the Lulled States to compel obedience to its laws, and to carry into execution the powers conferred upon it by the Constitution. " We hold it to be an incontrovertible principle that the G-overnment of the United States may by means of physical force, exercised tlirough its official agents, execute on every foot of American soil the powers and func- tions that belong to it." Ex parte Siebold, 100 U. S., 371, 395; U. S. vs. Neagle, 135 U. S., 1, 60; Logan vs. U. S., 144 U. S., 363, 294. '^ ^^ ^ \ 326 MILITARY LAW. Unlawful Obstructions, Assemblages, Combinations, etc. — Section 5298 of the Eevised Statutes provides that " whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be lawfal for the President to call forth the militia of any or all the S bates, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly ob- structed." ' The important power conferred by this statute is in its nature a measure of precaution or prevention, and a resort to the authority thus conferred is calculated in a proper case to prevent disaffection or civil disorder from ripening into an insurrection or rebellion of such formidable proportions as to constitute a state of public war. The statute assumes that the laws are being eflBciently executed whenever there is no obstruction to their enforce- ment which cannot be overcome by a resort to the ordinary agencies provided for that purpose, and the emergeacy contemplated in the statute exists whenever in the judgment of the President it becomes impracticable to enforce the laws of the United States by a resort to the agencies thus pro- vided. Where, therefore, such enforcement has in his judgment become impracticable, a case may be said to have arisen under the statute, and the President may employ the public armed forces, including the militia of the several States, in removing or overcoming such forcible obstruction to the operation and enforcement of the laws. Proclamation to Insurgents.- — As a condition precedent to the employ- ment of military force under the statute above cited, the President is ' Sec. 5298, Rev. Sis. Autliority similar in kind but more exti'nsive in its scope is conferred by Sec. 3 of the Act of April 20, 1871, (17 Stat, at Large, 14,) which is embodied in Sec. 5299, Rev. Sts., which provides that "whenever insurrection, domestic violence, unlawful combinations, or conspirncies in any Stiite so obstructs or hinders the execution of the Uivps thereof and of the United States as to deprive any portion or class of the people of such Slale of any of the rights, privileges, or immunities, or pro- tection, named in the Constitution and secured by the laws for the protection of such rights, privileges, or immunities, and tl}e constituted authorities of such Stale are unable to protect or fiom any cause fail in or lefuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States : and in all such cases, or whenever any such insurrection, violence, unlawful combination or conspiracy opposes or obstructs the laws of the United States, or the due execution thereof, or impedes or obstructs the due course of justice luiiler tlie same, it shall be lawful for the President, and it shall be his duty, to take such measures, by the employment of the militia or tlie land and naval forces of the United States, or of either, or by other means, as he may deem necessary, for the suppression of such insurrection, domfistic violence, or combinations." TEE EMPL07MBNT OF MILITARY FORCE. 327 required forthwith, by proclamation, " t o command the insurgents to dis- perse a nd retire peaceably to their respectJTe abodes, w ithin a limiled fime." ' The form and contents oi such~proclamations have~already 'Been ■^Sescnbed;' it is essential, however, that such instruments shall contain a notification to the insurgents to disperse and retire to their homes within a limited time, which must be specifically set forth, both as to its commence- ment and duration, in^ihe Doay oi tne proclamation.-' " *"' Jfimployment of !b'orce m SupporT of the Government of a State. — The Constitution contains the requirement that " the United States shall guarantee to every State in this Union a republican form of government." ' It also imposes upon the Federal Government the duty, in a certain case, of supporting the lawful Government of a State in the exercise of its constitu- tional functions. The several States of the Union are regarded by the Constitution as sovereign States, save as to those powers which they are for- bidden to exercise, or which are expressly vested in the United States by the terms of that instrument. Insurrection may therefore exist in a State, or the enforcement of its laws may be opposed or prevented by the existence of unlawful combinations; and the Government of such State may suppress such insurrection or overcome such opposition by a resort to any means within its power. "With this exercise of power on the part of a State of the Union the Federal Government as such has nothing to do. It is only when thg resista2ce_encountergdjs_so_farniidable in characlerjOr great in amount,, as to make the task of suppression impossible that the State in which it exists may call upon the Umted States to interpose.' ' Sec. 5300, Rev. Sts ''■ See the chapter entitled Mabtial Law, ante. ' UiKlev the statute above cited the time, which is by the terms of the enactment required to be limited, is in respect to iis duration entirely within the discretion of the President, and would be determined in a particular case By the emeigency of the occa- sion, and the necessity for prompt action to vindicate the supremacy of the law and ensure the restoration of order. Riot Acts. — In accordance with tlie law of most of the States, what is called the Riot Act is required to be read to insurgents oi' lioters before any extraordinary force, either civil or military, can be employed against them. The Riot Act is an old English statute enacted about 1715, during the reign of George I., and the necessity for reading it arose from a provision that " if any persons to the number of twelve or more, being unlawfully, riotously, and tumultuoiisly assembled together, shall to the number of twelve or more unlawfully, riototisly, and turaultuously remain or continue together by the space of one hour after being corninan.ied or requested by proclamation to disperse themselves, they shall be adjndiied felons, and shall suffer death without benefit of clergy." The statute provides that proclamation shall be made openly and with loud voice in these words : " Our Sovereign Lord the King chargeth and commandeth all persons being assembled, immediately to disperse themselves, and peaceably to depart to their habitations or to their lawful business, upon the pains contained in the Act, made in the tinst year of King George, for preventing tumults and riotous assemblies. God .save the King." Making this proclamation constitutes in England the "reading of the Riot Act." The same course may be pursued in this country, in those States in which the common law pre- vails, by a proclamation made in the name of the Commonwealth, State, or People, following in other respects the form above cited from the statute of George I., or by following the directions of the State statute on the subject, if any such there be. Law Kotes, vol. i., p. 88. * Constitution, Art. IV, Sec. 4, Clause 1. > IhiA., Art. IV, Sec. 4. i> i/ 328 MILITARY LAW. -^ ^, Form of Request. — The request, which mnst originate with the Gover nor o|_the_State,-0r with the legislature if that body be in session,' is addressed to the President, who by the t erm s of the Constitution is coinpelled to a ^ede to the request and to interfere in behalf of the lawfully constituted authorities of the State in which the demand originated." The appeal is not in strictness a request for assistance, but an admission of a want of capacity on the part of the State to deal with an existing emergency, and such military operations as are undertaken by the United States in pursu- ance of such request are carried on under the direction of the President by the proper military authorities of the United Stat 3S, and are entirely independent of State control.' Employment of Military Force in Connection with Indian Affairs. — The laws of the United States impose upon the President certain duties in respect to the management of Indians and the control of Indian reservations. They also empower him, whenever in his opinion sach a course becomes necessary, to make use of military force in the performance of the duties so imposed. It is pi;o£ertoobserve in this connecUonJJaat-all matteraj'elat- ing to Indjans -anjl. Indian affairs are by statute committed to the exclusive custody of the Interior Department. The War Departmeiitj,g,,_suchj_unless Bpecially_authorized bylaw or requested by the Depattpient of the Interior, is without power to exercise control over Indian tri,^,^ji£-tQ^interpos6 in the manageme'nFoir Indian reselwations ; and officers of the Army are in no way responsible for the behavior of Indians or for the control of Indian lands unless, by engaging in acts of hostility, they place themselves in the status of public enemies.' ' Constitution, Art. IV, Sec. 4, Clause 1. See, also, Paschal's Annotated Constitu- tion, p. 345. 2 The proviso of the Constitution " when the legislature cannot be convened " may- be said to mean when it is not In session, or cannot by the State law be assembled forth- with, or in time to provide for the emergency. When it is in session, or can legally and at once be called together, it will not be lawful for the President to employ the Army on the application merely of the Governor. Dig. J. A. Gen,, 161, par. 3. ' A military force employed according to Art. IV, Sec. 4, of the Constitution, is to remain under the direction and orders of the President as commander-in-chief and his military subordinates; it cannot be placed under the direct orders or exclusive disposi- tion of the Governor of the State. Ibid. , par. 3. In all cases of civil disorders or domestic violence, it is the duty of the Army to pre- serve an attitude of indifference and inaction till ordered to act by the President, by the authority of the Constitution or of Sees. 2150, 5397, or 5298, R'V. Sts., or other public statute. An officer or soldier may indeed interfere to arrest a person in the act of com- mitting a crime, or to prevent a breach of tlie peace in his presence, but this he does as a citizen and not in his military capacity. Any combined effort by the military, as such, to make arrests or otherwise prevent breaches of the peace or violations of law in civil cases, except by the order of the President or the requirement of a U. S. official author- ized to require their services on a •posse eomitatus, must necessarily be illegal. In a case of civil disturbance in violation of the laws of a State a military commander cannot wlunteer to intervene with his command without incurring a personal responsibility for his acts. In the absence of the requisite ordei-s he may not even march or array his com- mand for the purpose of exerting a moral effect or an effect in ierrorem; such a demon- stration, indeed, could only compromise the authority of the United States while insult- ing the sovereignty of the State. Ibid., 164, par. 7. * Section 3153, Revised Statutes, contains the requirement " that the superintendents, THE EMPLOYMENT OF MILITARY FORCE. 329 SulDJect to such qualification, however, the military forces of the United States may be employed in such manner and under sucli regulations as the President may direct: First. In the apprehension of every person who may be in the Indian country in violatio^n of law; and in conyeying liim immediateTy"fronr"the I1fdia£__oountry^j3^_llie_-iiearest- convenient and ...safa, route, to the • civil authority of the Territory or ju_dicial district in wjnch^^^ shall be found, to be groceeded_against in due concge of .law; Second. In the exajnina^i^on^and seizure of stores, packages^ aad boats, authorized by law; Tlurd. In preventing the introdactionof persons and property into the Indian country contrary to law, which persons and property shall be pro- ceedeH against according to law; ageuts, and sub-agents shall endeavor to procure the arrest and trial of all Indians accused of committiug any crime, offense, or misdemeanor, and of all other persons who may have committed crimes or ofEenses within any State or Territory and have fled into the Indian country, either by demanding the same of the chiefs of the proper tribe, or by such other means as the President may authorize. The President may direct the military force of the United States to be employed in the apprehension of such Indians, and also in preventing or terminating hostilities between any of the Indian tribes." Active hostilities with Indians do not constitute a state of foreign war, the Indian tribes, even where distinct political communities, being subject to the sovereignty of the United States.* Warfare inaugurated by Indians is thus a species of domestic rebellion, but it is so far assimilated to foreign war that during its pendency and oa its theatre the laws and usages which govern and apply to persons during the exist- ence of a foreign war are to be recognized as in general prevailing and operative. The mere making of predatory incursions by parties of Indians with whose tribe no general hostilities have been inaugurated does not constitute an Indian war. Dig. J. A. Gen., 451, par. 1. Held that the Cherokee Kation during the late war did not occupy the status of an insurrectionary State, and was not therefore included in the application of the statutes and proclamations which related to such States, but that its attitude from the date of its treaty with the Confederate Government of October 7, 1861, to its treaty with the United States of July 19, 1866, was that of an ally of the Confederacy to the extent that the individual members of the Nation who took part in hostilities against the United States became legally assimilated with the enemy. Ibid., 453, par. 2. Indians who, having occupied an attitude of hostility or ewosj hostility toward the United States, have in good faith resumed and been admitted to friendly relations there- with, are entitled, as repentant wards, to the protection of the Government, and acts of violence committed against them as if they were enemies are not acts of legitimate war- fare, but crimes. Thus where an ofHcer in command of a regiment of volunteer cavalry made a sudden and violent attack upon a village of friendly Indians, (who, having been in a state of partial hostility, had returned to their allegiance and had in fact been recognized as entitled to protection by the military authorities,) and caused the massa- cre of several hundred persons, of whom the larger portion were women and children, f — TieU that his act was wholly unauthorized and criminal; and in view of the fact that by reason of the expiration of the term of his regiment he had been mustered out of the service before he could be brought to trial by court-martial,— adwsd that, as a vindication of the good name of the Array and the reputation of the Government, which this atrocious act had compromised, there be issued fi-om the War Department a General Order setting forth briefly the circumstances of the crime, and so denouncing it as to discharge as far as possible the military administration from responsibility therefor. Ibid., par. 3. * See Worcester vs. Georgia, 9 Peters, 515. + See this raid upon Chayenrie Indians in Colorado, known as the " Sandy Creelc Massacre," described and denounced in tlie Eeport of the Congressional " Committee on the Conduct of the War," of May 4, 1865. -:> 330 MILITARY LAW. Fourth. And also in destroying and breaking np any distillery for m anufactaring ardent spirits sefugoFcoStinued witliin the Indian country.' Kemoval of Intruders from Indian Eeservations. — The law not only authorizes the removal of intruders from Indian reservations, but empowers the President to make use of military force in effecting such removals." The employment of troops in the performance of this duty in no way resembles their use in military operations against an enemy. Intruders are given reasonable notice to quit, and upon the expiration of such notice may be removed or ejected by the use of sufficient force to accomplish that pur- pose. The employment of force in excess of such amount is not authorized. Restriction upon the Detention of Arrested Persons. — The power con- ferred by Section 2150 of the Eevised Statutes, above cited, is subject to ' Sec. 2150, Revised Statutes. " The Supeiintendeut of ludiau affairs and tbe Indian agents and sub-agents sball have authority lo remove from tbe ludiau country all persons found therein contrary to law ; and the President is authorized to direct the military force to be employed in such removal. Sec. 2147, Rev. Stat. If any person who has been removed from the ludiau couutry shall thereafter at any time return or be fouud within the Indian country, he shall be liable to a penalty of one thousand dollars. Sec. 2148, ibid. The Commissioner of Indian Affairs is authorized and required, with the approval of the Secretary of the Interior, to remove from any tribal reservation any person being therein without authority of law, or whose presence within the limits of the reservation may, in the judgment of the Commissioner, be detrimental to the peace and welfare of the Indians ; and may employ for tbe purpose such force as may be necessary to enable the agent to effect the removal of such person. Sec. 2149, ibid. Indian Country. — It will be observed that the statute above set forth applies to Indian country. This term has been defined by the Executive Departments and by the courts of the United States. It was held by the Judge-Advocate General in October, 1877, " that the term "Indian country,' as employed in the statutes regulating trade and intercourse with the Indians (see, particularly, Ch. IV, Title XXVIII, Rev. Sts.) might properly be defined in general as including tbe following territory, viz. : Indian reserva- tions occupied by Indian tribes ; other districts so occupied to which the Indian title has not been extinguished ; any districts not in other respects Indian country, over which tbe operation of those statutes may be extended by treaty or Act of Congress." * Dig. J. A. Gen., 450, par. 1. • See this opinion as adopted and incorporated in G. O. 97, Hdqrs. of Army, 1877; also, in the same connection, ]4 Opins. Att.-Gen.. 390; United States vs. Forty-three Gallons of Whiskey, 3 Otto, 188; Bates vs. Clarlc, 5 Id. 204; United States vs. Sevelofl, 2 Sawyer, 311. That, in view of the Act of March 3, 18T3. extending to it certain provisions of the Act of June 30, 1834, the Territory of Alaska is " Indian country " so far as concerns the introduction and disposition of spirituous liquor, and that persons violating such provisions may therefore be arrested by military force,— see In re Carr, 3 Sawyer, 316; also citation from same case in note to Alaska, § 2, and 14 Opins. Att.-Uen., 327. In view of the positive terms of Sec. 2140, Rev. Sts., an oflQcer of the Army not only may but should *' take and destroy any ardent spirits or wine found in the Indian country except such as may be intro- duced therein by the War Department." The section imposes this as a " duty " upon " any person In the service of the United States "—including, of course, military as well as civil officials. Held, how- ever, that the authority given by the statute to destroy liquor brought into an Indian reservation did not authorize the destruction by the military of a building, the private property of a citizen, In which the liquor was found stored. Dig J. A. Gen., 450. par. 2. Under Sec. 2150, Rev. Sts.. a military commander may be authorized and directed by the President to arrest by military force and deliver to the proper civil authorities for trial any white persons or Indians who may be in the Indian country engaged in furnishing liquor to Indians in violation of law; as also to prevent by military force the entry into such country of perilous designing to introduce liquor therein contrary to law. Held that this authority to prevent was clearly an authority to arrest, where arrests were found necessary to restrain persons attempting to introduce liquor or other In- hibited property. Ibid., par. 3. In view of the duty devolved hy Sec. 2140, Rev. St'5.. upon " any person In the service of the United States." to take and destroy spirituous liquors in the Indian country, held that a post commander in such country who seized and destroyed a quantity of such liquors introduced into such country with- out the authority of the Secretary of War, but not found within the limits of his militai-y command^ bad not exceeded his powers. Ibid., 451, par. 4. v TEE EMPLOYMENT OF MILITARY FORCE. 331 considerable restrictions, and '' no__person_ apprehended^ by ^intary force J nnrlprfVj^f> pj-ei^fi^^ing .SfiCt^oP-, shall be detained longer than five days after M^ arrest and before removal.__All officers and soldiers who may have any such person m custody shall treat him with all the humanity which the circum- stances' vyill permit. ' ' ' Removal of Trespassers from the Public Lands. — In respect to the public lands, the United States stands in the sam^ position as a private proprietor or owner of lands in fee simple, and as such may not only eject trespassers from such lands, but may resort to the ordinary remedies provided by law for the protection of real property from intrusion or spoliation." In addi- tion to the remedies above described, the President is expressly authorized ty several statutes' to make use of such •military force as he may judge necessary and proper to remove trespassers from the public lands, and to remove or destroy any unlawful enclosures of the same. As has been explained_^n_jBSjyec±-t£iut]ie_xemoia,Lof mtraders Jrom. Indian reservations, the employment of force thus authorized is not in the nature of a warlike or military under takmg^buijrather resembles of a sheriff or peace officer in "{EeTTemoval of a trespasser or in the execution of process of ejectment. Enforcement Df-llLeJH,yiLJBiglLts.Law ;.Jjie Intercourse_Act s ; the H ealth laws and the Electi ve Franchise, etc. — The President is also empowered, by several statutes, to employ such part of the land and naval forces as he may deem necessary to enforce the provisions of the Civil Eights Act ; the Intercourse Laws; the laws respecting the enforcement of quarantine and health laws and in the protection of persons arrested with a view to their extradition. " No officer of the Army or Navy of the United States shall prescribe or fix, or attempt to prescribe or fix, by proclamation, order, or otherwise, the qualifications of voters in any State, or in any manaer inter- fere with the freedom of any election in any State, or with the exercise of the free right of suffrage in any State." ' ' Section 2151, Revised Statutes. ' T)ie provision of June 18, 1878, is not to be construed as interfering with the authority and duty of the President, to employ a necessary military force for the removal of trespassers from a military reservation; such employment not being, properly speak- ing, "for the purpose of executii)g the law," but a mere protecting, by the Executive Department, of public property in its military charge. Dig. J. A. Uen., 163, par. 6. « Sec. 2460. Rev. Sts., Sec. 1, Act of March 3, 1807, (3 Stat, at Large, 445,) and Tebruary 35, 1885, (33 ibid., 333.) < Title XXIV. Rev. Sis.; Sees. 5301-5332, ibid.; Sec. 4793, ibid.; Sees. 5375-5377, ibid.; Sees. 3003, 2004, ibid. Squatters and other trespassers and intruders may and should be expelled, by military force if necessary, from a military reservation.* But such persons when they have been suffered to own and occupy buildings on a reservation should be allowed reasonable time to remove them. If not removed after due notice the same should be removed by the military. Material abandoned on a reservation by a trespasser, on vacating, may lawfully be utilized by the commander for completing roads, walks, etc. Squatters on United States reservations may be forced therefrom by criminal pro- * See G. O. 62 of 1869. 332 MILITARY LAW. Suppression of Peonage in New Mexico. — Peonage is a term applied to a condition of involuntary servitude which existed in Mexico, to which under certain circumstances a debtor was reduced, by operation of law, until he had paid or worked out his debt. ' The practice existed at one time in New Mexico, but, being opposed to the public policy of the United States, was suppressed by an enactment of Congress in 1867." The statute which sup- ceedings had under Sec. 5388, Rev; Sts., or ejected by civil action. Dig. J. A. Gen., 516. par. 13. Where squatters have made any considerable improvements upon a reservation, and their value has been duly estiuiated, — as by a board constituted by the department com- mander and presenting iu its report all the evidence on the subject, — an award by the Secretary of War, acquiesced in by the claimant, may be sued upon in the Court of Claims, which (in the absence of evidence of fraud or mistake) will accept such award as con- clusive.* Ibid., par. 14. The general principle of tlie authority to remove trespassers, their structures and property, from land of the United States embraced in a military reservation held spe- cially applicable where the intrusion was for an injurious purpose, as where the object was to lay a sewer intended to discharge into a main sewer constructed by the United States upon and for the use of its own premises. In this instance, as the trespass was committed by the authorities of a municipality, advised that reasonable notice be given them to remove their property before resorting to military force for the purpose, and mean- time that precautions be taken to prevent a connection between the proposed sewer and the sewers under the control of the United States. Ibid., 517, par. 16. Where certain persons had entered unlawfully upon a military reservation, and had proceeded to cultivate the soil of the same for their persoual benefit and to lead off water, needed for the use of the garrii-on, in order to irrigate the ground so cultivated, advised that the commandant be instructed to give such persons reasonable notice to quit with their property, and if they did not comply, to remove them by military force beyond the limits of the reservation.! Ibid.. 513, par. 6. The cut ting of timber on a military reservation is an offense against the United States, made punishable by Sec. 5388, Rev. Sts., as amended by the Acts of June 4, 1888, and of March 3, 187.1, c. 1.51. So grass cut on a reservation and removed as hay would be personal property of which the asportation would be larceny under the Act of March 3, 1875, c. 144. And persons coming upon a military reservation for the purpose of cutting wood or grass, or to plow up the soil, or commit other trespass, may be removed as intruders, and the post commander should not hesitate to resort to military force if neces- sary for the purpose. And he may of course pievent such trespassers from cairying off with them auj' property of the United States. Ibid., 516, par. 15. Held that the Act of March 3, 1875, "to protect ornamental and other trees on government reservations and on lands purchased by the United States, etc., which makes pemd the unlawful cutting or injuring of such trees was clearly not intended to, and did not, preclude the reasonable cutting of wood on military reservations, under the direction of the proper officer, for the supplying of the necestary fuel for the garrisons stationed thereon; the authority to establish a reservation, wlieie in fact lawfully existing, being deemed to include an authority to efficiently maintain the same when established. .Rid., 513, par. 4. Held that the riitht to the "free and open exploration and purchase" of mineral lands, accorded to citizens, etc.. by Sec. 2319, Rev. Sts., could not authorize an entry, for the purpose of prospecting for mines, upon a military reservation once duly defined and established by the President ; the mineral lands intended by the statute being clearly such as are included within the "public lands "of the United States. Ibid., par. 5. ' Anderson's Law Diet.; Act of March 2, 1867 (14 Slat, at Larg", 546). ''The Act of March 2, 1867, provides that " the holding of any person to service or labor under the system known as peonage is abolished and forever prohibited iu the Territory of New Mexico, or in any other Territory or State of the United States ; and * Maddux vs. V. S., SO Ct. CI. 193, 199. + As ro tlie authoritv to r-emove trespassers from military reservations, see 3 Opins. Att.-Gen., 268'; 9 id.. lOR, 476; G. O. 74. Hdqrs. of Army, 1869. That this authority is not deemed to be affected by the provision of sec. 15 of the Act of June 18, 1878, see Dig. J. A. Gen., 162, par. 6. THE EMPLOYMENT OF MILITARY FORCE. 333 pressed peonage contained the requirement that "every person in the mili- tary and civil service in the Territory of New Mexico shall aid in the enforcement " of the section directing its abolition.' The Neutrality laws. — JSTeutrali t v is a status o r relation o ccupie d by a St ate toward other States or parts of . Stat_es_ w]3LiskaEe,.. engaged. jfi,^blic ■yf^. The relation, from the nature of the case, presumes the existence of a statTof war, and of belligerents who are participants therein, since in time of peace there can be no status of belligerency, and as a consequence no occasion for, or status of, neutrality. The neutrality laws of the United States, however, are so framed as not only to secure its neutrality during the existence of a state of public war, hut to enable its friendly relations to be maintained with States in which disaffection or insurrection exists, but with which the United States is and desires to continue at peace. These statutes may therefore become operative before a state of public war has been declared or even acknowledged to exist. Acts Forbidden. — It is the purpose of the neutrality laws of the United States to preserve its friendly relations with belligerents, by refraining from giving to either party any assistance in the prosecution of an existing war. To that end the neutrality laws, under appropriate penalties, forbid: (11 making the terr itor y of the United States a recruiting-ground fo r either ^^dligerentj_£3i_fitting^out, arming, ojr equipping a military o^^aval expedi- tion withm JkJfiaato.y, Jor -tha,,purpose .fl|., carrying on hostile operations against a State with whiflk iJa» United, States jg.^ peace ;^and^ (SX.a!-3gme^ Ing the armament or_j£ui^meni_of_juch^ag_ expisditiqn within its ports or ^Srn'ffiriar'watersr. "With a view to the adequate enforcement of these statu tesTThePresident is empowered to make use of such portions of the land or naval forces as he may deem necessary in preventing the departure of such expeditions, in taking possession of and detaining vessels, or in compelling the departure of such vessels as " by the laws- of nations or the all acts, laws, resolutions orders, regjulations, or usages of the Territory of New Mexico or of aDy other Tervitorv orState, wliicli have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any per- sons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void."* ' Section 3 of the same Act required that " every person in the military or civil sr-r- vice in the Territory of New Mexico shall aid in the enforcement of the preceding sec- tion." f See, also, Sections 553,6 and 5533, Revised Statutes. Prior to the passage of the Act above cited, it was held by the Judge-Advocate General that "in view of the provision of the Act of .Tuly 17, 1862, that ' no person in the military service shall assume to decide upon the validity of the claim of any person to the service or labor of anv other person, or surrender up any such person to the claimant, on pain of being dismissed from the service,' held that an officer of the Army stationed in New Mexico, who caused to be delivered to his former master there a fugi- tive peon, was liable to trial by court-martial, and, upon conviction, to dismissal." Dig. J. A. Gen., 585. * Section 1990, Revised Statutes, t Section '991, ihid. 334: MILITABT LAW. treaties of the United States ought not to remain within the United States.'" ' For the neutrality laws, see §§ 5281-5391, Revised Statutes. The Neutrality Act has beeu uniformly treated \>y the executive departments and by judges of the United States courts as embracing warlike enterprises set on foot in this country against a friendly power at peace with all the world. U. S. xs. Sullivan, 9 N. Y. Leg. Obs., 257. The organization iu one country or State of combinations to aid or abet rebellion in another, or iu any other way to act on its political institutions, is a violation of national amity aud comit}', and an act of semi-hostile interference with the affairs of other peo- ples. . . . -But there is no munieipal law to forbid and punish such combinations either iu the United States or Great Britain. Opiu. Att.-Gen., 216. The policy of this country is, and ever has been, a perfect neutrality and non-inter- ference in the quarrels of other nations. 3 Opin. Att.-Gen., 739. The Act of April 30, 1818, like that of June 5, 1794, was inteuded to secure, beyond all risk of violation, the neutrality and paoitic policy which they consecrate as our fun- damental law. Ibid., 741. The enlistment of seamen or others for marine service on Mexican steamers in New York, they not being Mexicans transiently within llie Uniied Slates, is a clear violaliou of Section 5282, and the persons enlisted, as well as the officers enlisting them, are liable to the penalties thereby incurred. 4 Opin Att.-Gen., 33(5. This section applies to foreign consuls raising troops in the United States for the military service of Great Britain. 7 ibid., 367. It does not apply to those who go abroad for foreign enlistment, or to those who transport such persons. U. S. vs. Kazinski, 2 Sprague, 7. The enlistment must be made wiihiir the territory of the United States, and the section does not apply to one who g'^es abroad with intent there to enlist. Ibid. The words "soldier" and " enlist," as used iu this section, are to be understood in their technical sense. Ibid. To constitute an offense under Section 5283, the vessel must be fitted out and armed ■with the specific intent. U. S. vs. Skinner, 1 Brun. Coll. Cases. It is not necessary that I he vessel should be armed or manned for the purpose of committing hostilities before she leaves the United States if it is the intention that she shall be so htted sulise- quently (Tlie City of Mexico, 28 F. R.,148i, or if the separate parts of the expedition are to be united on the higli seas. U. S. vs. The Mary N. Hogau, 18 Fed. Rep,, 529, and 20 ibid., 50. The status of the insurirent party will be regarded by the courts as it is regarded by the political or executive departments of the United States at the time of the commis- sion of the alleged offense. Gelstou vs. Hoyi, 3 Wheat., 246, 324; U. S. m. Palmer, ibid , 610, 635; Kennett vs Chambers, 14 How., 38; Wharton, Int. Law Dig., 551, 552; U. S. cs Trumbull, 48 F. R., 99, 104. The word " people." as used in this section, "is one of the denominations applied by the Act of Congress to a foreign power." U. S. vs. Quincy, 6 Pot., 445. I know of no law or regulation which forbids any person or government, whether the political designation be real or assumed, from purchasing arms from the citizens of the United States and shipping them at the risk of the purchaser. 10 Opin. Att.-Gen., 452. The .sending of munitions of war from a neutral country to a belligerent port for sale as articles of commerce is unlawful only as subjecting such property to capture. The Santissima Trinidad, 7 Wheat., 283; The City of Mexico, 24 F. R., 934. It is the right of a belligerent to purchase goods and instruments of war in a neutral nation, but it may be denied by a law passed for such purpose. 10 Opin. Att.-Gen., 61. The provisions of this section do not apply to a vessel which receives arms and munitions of war in this country as cargo merely, with intent to carry them to a party of insurgents in a foreign country, \)\\X not witli the intent that they shall constitute any part of the fittinsrs or furnishings of the vessel herself. U. S. vs. Tlie Itata, 56 F. R., (308; U. S v«. 3000 Cases of Rifles, ibid A vessel is not liable to forfeiture under this section, nor is she liable to condemnation as piratical on the groiuid that she is in the employ of an insurirent partv which has not been recognized by the United States as having belligerent rights, tj. S. vs. The Itata, 56 F. R., 608; U. S. vs. Weed, 5 Wall., 63; The Watchful, 6 Wall., 91. In the case of The Horsa (163 U. S., 633). decided on appeal in the Supreme Court of the United States on May 25. 1896, it was held " that any combination of men organ- ized to go to Cuba to make war upon its government, provided with arms and ammu- nition, constitutes a military expedition. It is not necessary that the men shall be THE EMPLOYMENT OF MILITABY FORGE. 335 Restriction upon the Use of Military Force. — The several grants of power to the Executive in connection with the use of military force are coupled with an important statutory restriction which makes it unlawful " to employ any part of the Army of the United State_Sj_^as_a joos.se gflmitetes or "othervyis e, tor ffiejurpose of execuEing the TawSiexoept in sQchj3ases anci under such circumstances as such employmentof said force may be exjiressly authorized by the Constitution or by Act of Congress." ' The 3uty of sheriffs, magistrates, coroners, and other civil officers in respect to the preservation of the peac3 is well known; it is an outgrowth of the common law and has been recognized by statute in most States of the Union. "Whenever, in the opinion of .the sheriff, the responsible conservator of the peace, such a course becomes negegsary, he may summon to his assist- ance what is knqwn_as the_posse comitatus^ that is, the bodjrf^malecitizens o f the county abo ie- fi.£tee.Q-,.y.ears,„of_age. and _may command them to aid him in the ex ecution o f process, in the preservation of the peace^and in the performance of other lawful duties requiring and involving the use of drilled, put in uniform, or prepared for efficient service, nor that tlney sliall have been organized as or according to the tactics or rules which relate to what is known as infan- try, cavalry, or artillery. It is sufficient that they shall have combined and organized here to go there and make war on a foreign government, and to have provided them- selves with the means of doing so. Whether such provision, as by arming, etc., is necessary need not be decided in this case. Nor is it important that they intended to make war as an independent body or in connection with others. Where men go with- out such combination and organization to enlist as individuals in a foreign army, they do not constitute such military expedition, and the fact that the vessel carrying them might carry arms as merchandise would not be important." See, also. The Estrella, 4 Wh., 398; The Gran Para, 7 Wh., 471; The Santa Maria, 7 Wh., 490. The Monte Allegre, 7 Wh., 530; U. S. lis. Reyburn, 6 Pet., 353; IT. S. m. Quincy, 6 Pet., 445. The word " people," as used in Section 5283, Revised Statutes, covers any insurgent or insur- rectionary body conducting hostilities, although its belligerency has not been recognized by the United States. The Three Friends, 166 U. S., 1, The repair of Mexican war-steamers in the port of New York, together with the ausmenting their force by adding to the number of their guns or by changing those originally on board for those of larger calibre, or by the addition of any equipment solely applicable to war, is a violation of Section 5385. But the repair of their bottoms or copper, etc., does not constitute any increase or augmentation of force within the meaning of the Act, and the steamers are not liable to seizure by any judicial process under it. 4 Opin. Att.-Gen., 336. The taking on- of a crew of American citizens, or of aliens domiciled in the United States, would constitute a violation of this section. The Alerta, 9 Granch, 359. When a party of insurgents already organized and carrying on war against the gov- ernment of a foreign country send a ves.sel to procure arms and ammunitiou in the United States, the act of purchasing such arms and ammunition and placing them , aboard the vessel is not within the scope of Section 5386, which prescribes a penalty for every person who, within the limits of the United States, begins or sets on foot or pre- pares or provides the means for any military expedition or enterprise " to be carried on from thence." Such expeditions and enterprises must originate within the iurisdiction of the United States, and the terms of the statute do not apply to an expedition origi- nating within the territory of a foreign state. U. S. m. Trumbull, 48 P. R., 99. For the liability of the officers of the ship, see U. S. vs. Rand, 17 Fed. Rep., 143. The law (Section 5389, Revised Statutes) does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports ; it only requires the owners to give security that such vessels shall not be employed by them to commit hostilities against foreign powers at peace with the United States. U. S. m. Quincy, 5 Pet., 445. ' Sec. 15. Act of June 18, 1878 (30 Stat, at Large, 153). 336 MILITARY LAW. physical force. The several marshals of the United States are similarly empowered to command the services of bystanders in the execution of process of the Federal courts and in the preservation of the Federal peace, that is, in tile enforcement of the laws of the United States as distinguished from those of the several States. Purpose of the Restriction. — It was the purpose of this restriction to prohibit the use of the troops of the United States, either individually or in organized bodies, as parts of the posse comitatus, State or Federal, by making their use unlawful for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by Act of Congress.' ' Inasmuch as it was not expressly authorized by any Act of Congress that United States marshals should be empowered to summon the military to serve on a posse comi- tatus (but this was authorized only indirectly and impliedly by the provision of the Act of September 24, 1789, incorporated in Section 787 of the Revised Statutes),* the Army could not, under the existing law, legally act on the posse comitatus of a marshal or deputy marshal of the United States.-|- Dig. Opiu. J. A. Gen., I(j2, par. 6. In the absence of such an "unlawful combination" as is contemplated by Section 5298, Revised Statutes, the President would not be authorized to employ a military force to assist inspectors of customs in seizing smuggled property or arresting persons concerned iu violations of the revenue laws, such an employment not being expressly authorized by any statute. Ibid. Whenever a marslial or deputy marshal was prevented from making due service of judicial process, for the arrest of persons or otherwise, by the forcible resistance or oppo- sition of an unlawful conibinaiion or assemblage of persons, the President was expressly authorized by Section 5298, Revised Statutes, to employ such part of the army as he might deem necessary to secure the due service of such process and execute the law ; first, however, in any such case (as in any case arising under Sections 5297 and 5299) making proclamation as required by Section 5300. Ibid. Notwithstanding the legislation of .June 18, 1878, the President was authorized to employ the military to arrest and prevent persons engaging in introducing liquor into the Indian country contrary to law, as also to arrest persons being otherwise in the Indian country iu violation of law,^ or to make the arrest therein of Indians charged with the commission of crime, such employment being expressly authorized by Sections 2150 and 2152, Revised Statutes. Ibid. The President was authorized by Section 2150, Revised Statutes, to remove by military force, after a reasonable notice to quit, certain persons commorant upon an Indian reservation contrary to the terms of a treaty between the United States and the tribe occupying the reservation, and who therefore were there "in violation of law " in the sense of that section. <^ Ibid. The provision of June 18, 1878, was not to be construed as interfering with the authori'y aiid duty of the President to employ a necessary military force for the removal of trespassers from a military reservation, such employment not being, properly speak- ing, "for the purpose of executing the laws," but a mere protecting, by the executive * 6 Opin. Att.-Gen.. 471 ; Letter of Attorney-fieneral Evarts to the United States marshal for the Northern District of Florida, Attorney-Geiieral's Office. August 20. 1868; General Instructions to United States mai'shals from Attorney-General Tatt, published in General Orders, 96, Headquarters of Army, 1870. + See, to a similar effect, Opinion of the Attorney-General of October 10, ISrS (16 Opin le"! ■ also 19 Opin., 393 \ f •< / < t But note that, in view of the provisions of Spction 2151, Revised Statutes, an ofBcpr of thp Army ■who detains a person arrested under Section 2150 longer than Ave days before " conveying him to the civil authority," oi- subjects him when in arrest to unreasonably harsh treatment, rendeis himself liable to an action in damages for false imprisonment. Inre Carr, 3 Sawyer, 316' Waters us Campbell 5 ibid., 17. ' ■ ■ I' 1 § See 14 Opin. Att.-Gen., 451; 20 ibid., S45 ; and note the proclamation of the President nnhlished in General Orders. Ifi, Headquarters of Army, 1880, relating to the intrusion of unauthorized persons upon the " Indian Territory " and declaring that the Army would be employed to effectuate their removal if necessary. THE EMPLOYMENT OF MILITARY FORCE. 337 Use of Military Force in the Execution of the Law. — If time will admit, I applications for the use of troops for such purposes must be forwarded, with \ statements of all material facts, for the consideration and action of the | President; but in case of sudden and unexpected invasion, insurrection, or \ riot, endangering the public property of the United States, or in case of i attempted or threatened robbery or interruption of the United States mails, \ or other equivalent emergency so imminent as to render it dangerous to await instructions requested through the speediest means of communication, an o fficer of th e Army may,take^such_action before the receipt of instructions as_the_circumsta&ces of the case .aJii.,the law ujQ.der which he is acting may justify, and will promptly report his action and. the circumstances requiring ft^to the Adjutant-General of the Army, by telegraph if possible, for the information of the President. ' _ In the enforcement of the laws troops are employed as a part of the mili- tary power of the United States, and act under the orders of the President as Conimandet,in^hief . They cannot be^rected to act under tiie orders of an v civil office r. Th g_commandin g officers of tro«ps so employed are direc tly resp_on siMe.ta their, military saperiors. Any, unlawful or unautho- rized act on their part would not be excusable on the ground of an order or reqifest" received by ' tfiem i'rom^ marshal OT'ai^^ther civil officer." u departmenl, of public property iu its military charge. * Dig. Opiu. J. A. Gen., 163, par. 6. Iu the absence of any express provision contained in the acts authorizing the Presi- dent to make reservations of forest lands (Acts of September 35 and October 1, 1890, and March 3, 1891, sec. 24), by which he is expressly empowered to use the army in execu- tion of such statutes, held that the' President would not be authorized to employ, as a posse comitatus or otherwise, the mililary forces, to aid in enforcing the regulations established by the Secretary of the Interior for tlie care and management of such lauds. Such employment, if perraitlod, would render the troops trespassers and liable to civil suits and prosecutions. Ibid., 165, par. 9. ' Paragraph '489, Army Regulations of 1895. The following paragraphs of the Army Regulations of 1895 also contain instructions as to the manner in which troops shall be employed : Officers of tlie Army will not permit troops under their command to be used to aid the civil authorities ns a posse comitatus. or in e.-secutioii of the laws, except as provided in the foregoing paragraph (paragrapii 487). Piir. 488, A. R. 1895. ' Par. 490, Ibid. Tr-oops called into action against a mob forcibly resisting or obstructing tlie execution of the laws of the United States, or attempting to destroy property belonging to or under tlie protection of the United States, are governed by the general regulatinns of the Army and apply militiiry tactics in respect to the manner iu wliich they shall act to accom|)lish the desired end. It is purely a tactical question iu what manner they shall use tlie weapons with which they are armed — whether by fire of musketry and artillery or by the use of bayonet and sabre, or by both, and at what stage of the operations each or either mode of attack shall be employed. This tactical question will he decided by the immediate commander of the troops, according to his judgment of the situation. The tire of troops should be withheld until tiini-ly warning has been given to the innocent who may be mingled with the mob. Troops must never tire into a crowd unless ordered by their commanding officer, except that single selected sharpshooters may shoot down individiud rioters who have fired upon or thrown missiles at the troops. As a general rule the bayonet alone should be used against mixed * " Due caution should be observed, however, that in executing this duty there be no uonecessary or wanton harm done to persons or property." Opin. Att.-Gen., 476. 338 MILITARY LAW. Duty of the Army to Refrain from Interference. — It has been seen that in all cases of ciyil disorders or domestic violence it is the duty of the Army to preserve an attitude of indifference and inaction till ordered to act by the President, by the authority of the Constitution or other public statute.' crowds ill the first stages of a revolt. But as soon as sufficient ■warning has been given to enable the innocent to separate themselves from the guilty, the action of the troops sliould be governed solely by the tacliciil considerations involved in the duty lliey are ordered to perform. They should make their blows so effective as to promptly suppress all resistance to lawful authority, and should stop the destruction of life the moment lawless resistance has ceased. Punishment belongs not to the troops, but to the courts of justice. Par. 491, Army Regulations of 1895. ' Dig. J. A. Gen., 1(54, par. 7. An officer or soldier may, indeed, interfere to arrest a person in the act of committing a crime, or to prevent a breach of the peace in his presence, but this he does as a citizen and not iu bis military capacity. Any combined effort by the military, as such, to make arrests or otherwise prevent breaches of the peace or violations of law in civil cases, except by the order of the President, must necessarily be illegal. In a case of civil disturbance in violation of the laws of a State, a military commander cannot volunteer to intervene with his command without incurring a personal responsibility for his acts. In the absence of the requisite orders he may not even march or array his command for the purpose of exerting a moral effect or any effect in terrorem; such a demonstration, indeed, could only compromise the authority of the United States, while insulting the sovereignty of the State. Ibid., 164, par. 7. See, also. General Orders, No. 36, Adjutant-General's Office, of 1894 (A. R., 487), for in- structions as to the use of the military force in support of the civil authority. . • CHAPTEE XIX. THE ARTICLES OF WAR. History of the British Articles. — In the early history of military institn- tions in England, from which, as has been seen, our own military policy was in great part derived, military law existed only in time of 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 constable, or of the peers, and other experienced persons; or were enacted by the commander-in-chief in pursu- ance of an authority for that purpose given in his commission from the crown.' These ordinances or articles, however, remained in force only during the service of the troops for whose government they were issued, and ceased to operate on the conclusion of peace. Military law in time o f p eace did not ( ^qt^ip intp g Yistence in statutory form till the passing^of the first Mutinj:_Ac.t-«iri6«S.% ''"T^he system of governing troops on active service by Articles of War issued under the prerogative power of the crown, whether issued by the king himself, or by the commander-in-chiefs or other officers holding com- missions from the crown, continued from the time of the Conquest till long after the passing of annual Mutiny Acts,' and did not actually cease till the • prerogative power of issuing such articles was superseded, in 1803, by a corresponding statutory power.' ISTumerous copies of these Articles are in existence prepared and issued on the occasions of the various wars, both foreign and domestic, in which England has been involved from time to time since the period of the ]S"orman Conquest. The earliest complete code seems to have been the " Statutes, Ordi- nances, and Customs " of Eichard II., issued by him to his army in the ninth year of his reign (1385), and probably on the occasion of the war with Prance.* Domestic dissensions gave occasion for the orders for the English army promulgated by Henry YII. before the battle of Stoke; ' and in the ' II Grose, Military Antiquities 58 ; see also, Commission in Rymer's Fcedera. 2 Sir Henry Thring, Manual of Military Law, pp. 7-18. 2 Barweis vs. Keppel, 2 Wilson's Eepovts, 314. MS Geo. Ill, ch. 30. ^ ' II. Grose, Military Antiquities, 69. This code contained 36 Articles. The author does not mention the much more elaborate code of Henry V. » Ibid., 70. 339 340 MILITABT LAW. Great Rebellion the king and the parliamentary leaders alike governed their armies by Articles of War. On the side of the crown, Articles or " Ordinances of War," as they were then called, were established by the Earl of Northumberland in 1639 for the regulation of the army of Charles I. ; while in 1642 Lord Essex, the leader of the parliamentary forces, under authority giyen by an ordinance of the Lords and Commons, put forth Articles of War which were almost identical in language with the Royal Articles.' Articles of War were also issued by Charles II. in 1666," when the French war was declared, and in 1673," upon the outbreak of the Dutch war ; and similar articles were issued by James II. in 1685 and 1686 ; * the former on the occasion of Monmouth's Rebellion. The Duke of Albemarle's Articles (1666) and Prince Rupert's (1673)— more particularly the latter — were framed on the model of those of the Earls of Essex (1643) and Northumberland (1640), which were very much alike and in many respects resembled those of the Earl of Arundel (1639) the nearest preceding set in point of time. Of the Earl of Arundel's Code, twenty-three articles relate to subjects treated of in the Code of Gustavus Adolphus (1621); ' and the language of the two codes is often sufficiently alike to suggest the probability that Arundel's Code owed some of its pro- visions to the Code of Gustavus Adolphus,' possibly to some extent through the British Code of 1635. Indeed, to -thft^Cn ij^ft ftf Onstavna Afj olpjins, through inte rvening codes, we may periiapseven trace s mae-af-aor jwn 4rtielesofTJiir_JiDW in fQr£e._ At least it contains 4)rovJsions correspond- in g — in som e_case.s_nQL-XLiisiigS£stiyely:3::with the. following Articles of our Code^ viz. : Articles 17, 30, 31, 33, 36, 37, 38, 39, 41, 43, 46, 55, 56, and 63? The British Articles of War, although they remained substantially unchanged in matters essential to discipline, were frequently modified in respect to details; and new editions were issued from time to time, especially during the last half of the eighteenth century,' a period during which great wars were undertaken and large acquisitions of territory made throughout the world, involving as a consequence the employment of con- siderable military forces on foreign service. In evidence of this seven sets of > 1 Clode, Mil. Forces of the Crown, App. VI and VII. « Known as the Duke of Abemarle's Articles. ' Known as Prince Bupert's Articles. ,, , . xt -m- * Known as King James's Articles. A copy of this code maybe consulted la 11. Wm- throp. App. V, pp. 26-37. . , • j. ' This in itself would not, however, be in any respect conclusive of a connection between them, because military codes must from their very nature relate in general to the same matters of military discipline. J. A. G. 6 For a complete copy of this important code see II. Winthrop, Mil. Law, App. ill, pp. 8-23. s SlS^wtrrilSnTiieyears 1766, 1769, 1771, 1772,1773, 1774, and 1775 THE ARTICLES OF WAR. 341 Articles were issued between the years 1766 and 1775. Of these the Articles of 1774 were probably those from which our own Articles of 1775 and 1776 were obtained." ' This view is sustained by the fact that in two places our Articles of 1775 and 1776 correspond more closely with the British Articles of 1774 than with those of 1765. Thus Artic le V of our code of 1775 was as follows : j " Any officer or soldier who shall begin, excite, cause, or join in any mutiny or sedition in the regiment, troop, or company to which he belongs, or in any other regiment, troop, or company of the Continental forces, either by land or sea, or in any part, post, detachment, or guard, on any pretense whatsoever, shall' suffer such punish- ment as by a general court-martial shall be ordered." The corresponding Article in the British code of 1774 was as follows : "Any Officer or Soldier who shall begin, excite, cause, or join in any Mutiny or Sedition in the Regiment, Troop, or Company to which he belongs, or in any other Regiment, Troop, or Company, either of Our Land or Marine Forces, or in any other Party, Post, Detachment, or Guard, on any pretense whatsoever, shall suffer Death, or such other punishment as by a Court-martial shall be infficted." Whereas the Article in the code of 1765 was as follows : " Any Officer or Soldier who shall begin, excite, cause, or join in any Mutiny or Sedition in the Troop, Company, or Regiment to which he belongs, or in any other Troop or Company in Our Service, or in any Party, Post, Dutachmeut, or Guard, on any Pretense whatsoever, shall suffer Death, or such other Punishment as by a Court- martial shall be inflicted." It will be noticed that our Article much more nearly corresponds with the British Article of 1774 than with that of 1765. So the last Article of our code of 1776 was : " All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the above articles of war, are to be taken cognizance of by a general or regimental court-martial, according to the nature and degree of the offense, and be punished at their discretion." The last Article of the British code of 1774 was : " All Crimes not Capital, and all Disorders and Neglects which Officers and Soldiers may be guilty of to the Prejudice of good Order and Military Discipline, tliough not mentioned in the above Articles of War, are to be taken Cognizance of by a General or Regimental Court-martial , according to the Nature and Degree of the Offense, and be punished at their Discretion." ' Whereas the corresponding Article in the code of 1765 was : " All Crimes not Capital, and all Disorders or Neglects, which Officers and Soldiers may be guilty of, to the Prejudice of good Order and Military Discipline, though not mentioned in the above Articles of War, are to be taken Cognizance of by a Court- martial, and be puuished at their Discretion." In the latter the regimental court-martial is not mentioned. Our Articles of 1775 correspond more nearly with the British Articles of 1774 than with the Massiichusetts Articles.* ' John Adams, the chairman of the Committee of Congress charged with the preparation of the Articles of 1776, remarks in his autobigraphy, under date of August 13, 1776, when the draft of the proposed Articles was submitted to Congress : "The British Articles of War were accordingly reported and discussed in Congress by me, assisted by some others, and finally carried. They laid the foundation of a discipline which in time brought our troops to a capacity of contending with British veterans and a rivalry with the best troops of France." John Adams, Life and Autobiography, vol. iii. pp. 68, 69. The Articles of June 30, 1775,t were repealed and replaced by those of September 30, 1776, and so remained in force but little over one year. For this reason the annota- tion of the Articles relates to the Code of September 30, 1776, which, save for the sub- stitution of an amended code of court-martial procedure which was effected by the enactment of the Resolution of May 31. 1786, continued in force for nearly thirty years, when they were superseded by the Articles of April 10, 1806. t * Note by Judge-Advocate General Lieber. For a reprint of the Massachusetts Articles, see II Winthrop, pp. 61-67. + The Articles of 1775 will be found in American Archives (Fourth Series), vol. ii., p. 18S5 and at page 65, Winthrop Military Law, vol. ii. t 2 Stat, at Large, 259; 8 Winthrop, 98-111. 3i2 MILITARY LAW. Origin and History of the American Articles of War. — The Articles of War m force in the armies of the United States were derived originally from the corresponding British Articles. As the colonial troops had served with the royal forces operating in America during the wars immediately preceding the outbreak of the War of the Ee volution, and while so serving had been subject to the British Mutiny Act and Articles of War, they became as a consequence familiar with those Articles ; and as their scope and appli- cation were fully understood they were adopted with some necessary modi- fications for the government and regulation of the Revolutionary Armies. When the Continental Congress met in Philadelphia in May, 1775, and undertook to provide an army, the Mutiny Act and Articles of War then in force in the British Army were resorted to, and the British Code of 1774 at that time in actual operation was, with some changes and omissions, enacted for the government of the colonial forces on June 30, 1775.' Addi- tions were made in November, 1775," which were repealed, however, by the Resolution of September 30, 1776,' and new Articles adopted which were themselves modified in some particulars by a Resolution of Congress dated ' April 14, 1777." The section of the Articles of 1776 relating to military tribunals having been found inadequate and to some extent defective, was repealed and replaced by a new section, under the Resolution of Congress of May 31, 1786.' The Act of September 39, 1789,' recognizing the existing military establishment, contained a provision to the effect that the troops so recog- nized should " be governed by the Rules and Articles of War which have been established by the United States in Congress assembled, or by such • I. Journals of Congress, 90. ' ma. ^Ulbid.. 343. The revision of the Articles of 1775 was made at the suggestion of Gen. Washington, and the work of preparing a new code was entrxisted to a committee of Congress com- posed of John Adams and Thomas Jefferson. The modifications suggested by General Washington were submitted to the committee in his behalf by Colonel Tudor, the Judge-Advocate of the Army. Adams, to whose endeavors the adoption of the Articles of 1776 is in great part due, says that he was in favor of adopting the British Articles iotidem verbis. In his diary under date of September 30, 1776, he refers to the revision as " the system wliich he persuaded Jefferson to agree with him in reporting to Con- gress." He also speaks of the burden of advocating the passage of the Articles having been " thrown upon him, Jeflferson having never spoken, and, such was the opposition, and so undigested were the notions of liberty prevalent among the majority of the members most zealously attached to the public cause, that to this day (January 7, 1805) I scarcely know how it was possible that these Articles could have been carried." John Adams, Life and Autobiography, vol. iii. pp. 83, 84. * III. Journals of Congress, 108. ■^ XI. Journals of Congress, 107. The Articles of 1776 were also amended, in re- spect to the bringing of provisions into camp, the redress of wrongs, the appointment of general courts-martial, and the power of pardon and mitigation of sentences imposed by them, by the Resolution of Congress of April 14, 1777 (III. Journals of Congress, 108). The general or commander-in-chief was, by a similar Resolution of May 27, 1777, (III. ibid., 166,) given power to pardon or mitigate any of the punishments authorized to be inflicted by the Rules and Articles of War. « 1 U. S. Statutes at Large, 95. THE ABTI0LE8 OF WAR. 343' Eules and Articles of War as may hereafter by Ittw be established." lu 1806 the existing Articles of "War_w§re re-enaglg^,' the arrangement by sec- tions being~atsgense3' witii7 and the Articles numbered in serial order from 1 to~TOl',"aad these Articles "coTitinued in force until the enactment of the existing Ji,rticles in- 18^47*"- - THE ARTICLES OF WAR. Section 1342. The Armies of the United States shall be governed by the following rules and articles. The word officer, as used therein, shall be understood to designate commissionea~Mlcers ; t&e~wora;''sol'aier"TtiaTl'~be underetoodT g'iTTclTg e^n^n-co^^^ officersTmiisicians, artificers, and priv ates, and oth erenlisted men, and t he^convictions mentioned therein shall be understood_to_be,coflvictions by court-martiaL Rules of Interpretation. — In addition to the statutory rule above cited, it should be borne in mind that in applying the Articles of War to particular cases the well-established rule of interpretation of criminal statutes should be applied, and a case should not be treated as within the penal provisions of an Article unless it is quite clearly included by the words of description employed." It is well settled that the word " may," in a statute conferring power upon a public officer, is to be construed as equivalent to " must " or " shall " where the enactment imposes a public duty or makes provision for the benefit of individuals whose rights cannot be effectuated without the exercise of the power." In the 58th Article, however, the opposite rule applies, and the word " shall," as used in the clause " shall be punishable," is construed as equivalent to " may." ° Limitations upon Punishment. — In addition to the restrictions upon tlie power to punish which are embodied in the Articles themselves, it is pro- ' 3 Statutes at Large, 259. Althougli the Articles of 1776 stood in considerable need of modification and revision, no such revision was authorized until 1806, nearly thirty years after their original adoption. Hamilton, in a letter to Secretary McHenry, speaks of their requiring amendment " in many particulars." He invites special attention to the obscurity which envelops the provisions of the existing Articles respecting the power to appoint general courts- martial, and suggests that the President be given ' ' a discretionary authority to empower other officers than those described in the Articles of War to appoint courts-martial, upder such conditions and with such limitations as he shall esteem advisable." Hamilton to McHenry, December 1799. V. Hamilton's Works, 393. See, also, report of the Secretary of War of January 5, 1800, transmitted to Congress by President John Adams on January 13, 1800. American Slate Papers, Mil. Affairs, vol. i. p 138 2 Act of June 30, 1874 (18 Stat, at L.irge, 1 13). * Dig. J. A. Gen , 711, par. 1. " Criminal statutes are inelastic, and cannot be made to embrace cases plainly without the letter though within the reason and policy of the law." State as. Lovell, 28 Iowa, 304. * Dig. J. A. Gen.. 713, par. 2. See Minor m. Mechs. Bk., 1 Peters, 46 ; Supervisors vs. United States, 4 Wallace, 435, and cases cited ; also Fowler m. Pirkins, 77 Ills., 371 ; Kans. P. R. R. Co. m. Reynolds, 8 Kans., 638; People vs. Comrs. of Buffalo Co 4 Neb., 150. ' Dig. J. A. Gen., 713, par. 2, note. ^ 344 MILITABT LAW. vided " that whenever, by any of the Articles of War for the government of the Army, the punishment on conviction of any military offense is left to the discretion of the court-martial, the punishment therefor shall not in time of peace be in excess of a limit which the President may prescribe.' Abticle 1. Every officer noio in the Army of the United States shall, within six months from the passing of this Act, and every officer hereafter appointed shall, iefore he enters upon the duties of his office, sulscrihe these Rules and Articles. This provision appears for the first time as Article 1, Section 1, of the Articles of 1776, and is there restricted in its application to commissioned officers " who shall be retained in the service of the United States"; the term "retained" as here used being equivalent to "accepted" or "received into" the service of the United States as distinguished from that of the several States. The requirement appears as No. 1 of the Articles of 1806, but prescribes no form of certificate to be used, nor does it provide for the verification of the act by a civil magistrate or other public officer. As the Articles of War apply expressly to commissioned oflBcers and enlisted men, and as military persons equally with civilians are presumed to be familiar with them, as a part of the law of the land, it is not easy to see what additional sanction is conferred by the formal recognition of their obligatory force which is implied by such signature. The provision, which is directory in character, operates, however, to strengthen the presumption of knowledge above referred to, and gives additional force to the requirement of the first or enacting clause of Section 1342, Revised Statutes. Article 2. These rules and articles shall he read to every enlisted man at the time of, or within six days after, his enlistment, and he shall thereupon take an oath or affirmation iti the following form : "/, A. B., do solemnly swear {or affirm) that I will bear true faith and allegiance to the United States of America ; that Twill serve them honestly atid faithfully against all flirir otemies ivhomsoever ; arid that I will obey the orders of the President nf the United States, and the orders of the offi.cers appointed over me, according to the Rules and Articles of War.'" This oath may he taken iefore any commissioned officer of the Army. This provision appears as Article 6 of the Prince Rupert Code; as Art. 1, Sec. 3, of the British Code of 1774; as Art. 1, Sec. 3, of the Articles of 1776 ; and as No. 10 of those of 1806. The oath of enlistment, which in its ' Act of September 27, 1890 (37 Btat. nt Large, 491). This statute replaced a simi- lar but less comprehensive enactment of October 1, 1890 (2() Slat, at Large, 648), which authorized the President to "prescribe speoitic penalties for such minor offenses as are now brought before garrison and regimental courts- martial." Under the authority conferred by the Act of September 27. 1890, above cited, two Executive orders have been Issued prescribing limits of punishment for offenses to which specific penalties are not attached in the Articles of War See General Order No. 21, A. G. O. of 1891, as amended by the Executive order of March 20, 1895 (Man- ual for Courts-martial, pp. 53-63). TEE ARTICLES OF WAR. 345 ofiginal form was one of fealty and allegiance to the sovereign, was admin- istered by an officer of the Army until 1694, when by Act of Parliament ' it was required to be administered by a civil magistrate; this to prevent impressments into the military service, and to protect the recruit from being entrapped into a serious contractual engagement without understanding its nature or the serious character of the undertaking;" This statute, which was enforced by appropriate penalties, continued in force until 1697, when it failed of re-enactment. The practice of attesting the engagement before a civil magistrate continued, however, and was recognized in the Mutiny Act of 1735 ; " it still continues in force." The practice which existed in many parts of England of concluding a bargain by giving some earnest of it was adopted, in the case of enlistment, by the giving of a shilling, the acceptance of which rendered the man for some purposes a soldier. Under the existing Army Act the acceptance of the shilling has no such effect.' The attestation is still required to be performed by a civil magistrate; but the Articles of War as such having ceased to exist (being merged in the Army Act of 1881), are no longer required to be read to recruits. The conditions of service, however, are required to be explained to the recruit prior to his enlistment. The oath required in the British service is one primarily of allegiance and fealty to the sovereign, and the statute requir- ing its administration is regarded as being directory in character." The enlistment oath is not held to create a change of status, as is now the case in the United States service,' and is imposed to give a greater sanction to the discharge of the soldier's duty ° The form of oath in use in the British Army, as embodied in the British Code of 1774, was with some necessary modifications adopted by the Con- gress in the Articles of 1776; the obligation being to " be true to the United States of America, and to serve them honestly and faithfully against all their enemies or opposers whatsoever," and "to observe and obey the orders of the Continental Congress, and the orders of the generals and officers set over him " by them. The English practice of req uirin g the oath of enlistment t o b e ad mi nistered by a civil mag istrate was incorporate.d..i.n. the, Articles of 1776 . and c ontinued in force until Augojt S^^JSgXi'-vyhen by enac tment of Con gress th e power to adrn inister this oath was con ferred-U poiLall officersofUieArmv . The clause requiring obedience to be rendered to the orders of the officers ' 5 !iud 6 Wm. and Mary, cli. 15, sec. 3. '^ Manual Mil. Law, 254. 3 8 Geo. 11 , ch. 3. * Manual Mil. Law, 354. * Ibid. ' I. Olode, Military Forces, 31 ; King m. Witmoham, 2 Adol. and M., 650. See, also, Report of Royal Commissioners on Oaths, 1867. ' Tn re Grimley, 137 U. S.. 147. " I. Clode, Military Forces. 31. 9 Sec. 11, Act of Aug. 3, 1861 (13 Stat, at Large, 389). :i^ 346 MILITARY LAW. appointed " in accordance with the rales and Articles for the government of- the armies of the United States " was added to the oath by the Act of April 10, 1806.' ( Aeticle 3. Every officer wlio Tcnowinaly enlists or musters into the ' military service any minor over the age of sixteen years loithout the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated persons, or any deserter from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense shall upon conviction he dismissed from the service, or suffer such other punishment as a court-martial may direct. This provision, when taken in connection with Article 3, supra, regu- lates in part the subject of enlistments in the Army of the United States. It first appeared in statutiry form as Section of the Act of March 5, 1833, '^ and was incorporated withoat change as Article 3 in the revision of 1874. Prohibited Enlistments. — In addition to the restrictions imposed by the above Article the following requirements of law must be observed in respect to enlistments: "No minor under the age of sixteen years, no insane or intoxicated person, no deserter from the military service of the United States, and no person who has been convicted of a felony shall be enlisted or mustered into the military service." ' " I n time of p e ace no person ( except a n Indian) who ignot. a citizen o f the Un ited States, or who has not made legal_declaration of„his inteniion to beco me a c itizen jof the IJnited States, or who cannot ^fifiak,_Cfiadraiid. write the English language, or who is over thirty years of age, shall be,.solisted for the first enlistment in the Army." ' Enlistment of Minors ; Consent of Parent or Guardian. — It is also pro- vided by law that " no person under the age of twenty-one years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians : provided, that such minor has such parents or guardians entitled to his custody and control." ^ ' 2 Stivt. at Large, 259. ' 4 Stal. at Large, 647. ° Section 1118, Revised Statutes. ■* Section 2, Act of August 1. 1894 (28 Stat, at Large, 215). ' Sec. 1117, R. S. Sees. 1116-1118, Rev. Sts., bave always been regarded by the War Department as directory only, and not as necessarily malting void such enlistments, but as rendering them voidable merely, at tlie option of the Government, which may waive iu its discretion tbe objections involved. A person enlisted in derogation of these provisions may still be held to service with the same legality as aiiy.other soldier; and if arraigned for desertion or other military offense, a plea that his enlistment was void under these statutes and that he could not legally be subjected to the military jurisdic- tion would not be sustained. Dig. J. A. Gen., 391, par. 17. See, also, ibid., 390, par. 16. A recruiting officer would not be authorized (under Sec. 1118, Rev. Sts.) to enlist a person known to him to have been convicted of felony, although such per.son should produce a pardon. Pardon would not remove this ineligibility. Ibid , par. 18. A deserter who enlists and afterwards again deserts cannot, on being brought to trial for the second offense, defend on the ground that his enlistment was void, and that he is THE ABTIGLES OF WAR. 347 Sections 1116, 1117, and 1118, Kevised Statutes , providing that desertersT^ convicted felons, insane" or~ intoxicated pei:sons, and ce rSin minors sha ll not be eniist ea are regarded as direc tory only, and not as mak- ing ne cessarily void such enlistments, but as rendering themj;oidable merely,/ at the option of the Governjaent. In cases of such enlistments, except of' course where the party by reason of mental derangement or drunkenness was without the legal capacity to contract, the Government may elect to hold the soldier to service, subject to any application for discharge which may be addressed by himself or his parent, etc., either to the Secretary of War or to a United States court." not tlierefove amenable to trial. A plea or defense to this effect should not be sustained by the court. Dig, J. A. Gen., 385, par. 3. The enlistment in our aimy of a deserter from the Na'cy is not prohibited by any statute. Where, therefore, such an enlistment had been (unadvisedly) made, held that — although the proper disposition of the party would probably be to discharge him and turn him over to the naval authorities — the contract was certainly valid in law. Ibid. There is no law or regulation affectiiig the validity of an enlistment made on a Sun-" day. 7«(?., 387, par. 8. See, also, Wollon to. Gavin, 16 Q. B., 48. ^ ' The provision of Section 1117, Revised Statutes, that " no person under the age of twenty-one years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians," is for the benefit of the parent or guardian, and gives no privilege to tlie minor, whose contract of enlistment is good so far as he is concerned. He cannot by his own act relieve himself from his obligations as a soldier or his liability to military control. In re Morrissey, 137 U. S., 157 ; in re Grimley, ibid., 1147. , The enlistmentcontract of a minor isvoid^wlien the recmit is under sixteen, with or without" tirB-TO^gB|,£flSi5iaxeu t. i» re Lawlerr~30 R "l-ri"5jliy.' lt_i8.ji2Lxaiii,',',hut voigiialg-OBgT'^lQ-minors^T^^ sixteen^nd twgatjiiOne. U. S. vs. Morrissey, 137 U. S., 157. "it fs"noTvoT3aT)re"af The instiificfe of'the" minor. Ibid. It is voidable at the Instance of the parent or guardian. Com. m. Blake, 8 Phil., 533; Turner «s. Wright, 5 ibid., 296; Menges w. Camac, 1 Serg. & R,, 87; Henderson to. Wright, ibid., 399; Seavey TO. Seymour, 3 Cliff., 439 ; In re Cosenow, 37 P. R., 668 ; In re Hearn, 33 ibid., 141 ; In re Davison, 31 ibid., 618 ; U. S to. Wagner, 34 ibid., 135 ; In re Dohrendorf, 40 F. R., 148 ; In re Spencer, ibid , 149 ; In re Lawler, ibid., 233 ; In re Wall, 8 ibid., 85. A minor's contract of enlistment is voidable, not void, and is not so voidable at the instance of the minor. If after enlistment he commits an offense, is actually arrested, and in course of trial before the contract is duly avoided, he may be tried and punished. In re Wall, 8 Fed. Rep., 85. See, also, Barrett to. Hopkins, 7 ibid., 313 ; Dig.' J. A. s. United States, 7 id., 60; Ford vs. Surget, id., 594; Johnson vs. Dow, 10 id., 158; Porte vs. United States, Devereux, 109; Winchester vs. United States, 14 Ct. CI., 13; United States vs. A Tract of Land, 1 Woods, 475: Atkinson vs. Central Ga. Mfg. Co., 58 Ga., 337. Held that the property of enemies, captured ^■«r« belli in a civil war, did not belong to the class of property indicated in Article 5 of the Amendments to the Constitution, the taking of wiich " for public use without just compensation" is prohibited. Dig. J. A. Gen., 318, par. 3. Held that a claim by an individual for rent for the use and occupation by the United States Of captured real estate for an alleged unreasonable period after the end of the war without commencing proceedings for confiscation could not be allowed by an exec- utive officer or department, and that as such a claim would not be within the jurisdic- tion of the Court of Claims,* the same could be entertained only by Congress. Ibid., par. 3. The owner of property captured ^M)'e belli is not entitled to recover its value under the provisions of Sec. 3483, Rev. Sts., as being property impressed in the military service, f Ibid., par. 4. Held that a civilian into whose hands had come at the end of the late war certain captured personal property of the enemy was not entitled to convert it to his own use or to demand compensation as a condition of its surrender to the United States authori- ties. Ibid., par. 6. Sec. 318, Rev. Sts., in requiring the Secretary of War to collect, etc., "all such flags, standards, and colors as are taken by the army fiom the enemies of the United Slates," is believed to have reference to flags of the enemy. So, advised, that a flag of a Massa- chusetts regiment, captured by the enemy and retaken at the end of the war at Richmond, was not to be considered as one of the class placed by the statute under the charge of the Secretary of .War, and might therefore properly be returned to the State or the regiment, if originally belonging to or furnished by the same Otherwise if furnished by the United Stales : in such case the flag is property of the United States, disposable only by Congress. Ibid., par. 7. 2 Wilson vs. U. S., 4 Ct. Cls., 559. ' Dig. J. A. Gen., 313, par. 5. * See Sec. 1059, Eev. Sts. ; Bishop us. United States, 4 Ot. C)., 448 ; Slawson vs. 'Tnited States. IS Wallace, 3U. t As to the distinction between capture and impressment, see 11 Opins. Att.-Ger 378. -^1 364 MILITARY LAW. their being lost, spoiled, or damaged otherwise than hy unavoidable accidents or on actual service. This requirement appears as Article 5, Section 13, of the British Code of 1774, as Article 5, Section 12, of the American Articles of 1776, and as No. 40 of the Articles of 1806. It is the purpose of this Article, taken in connection with the 15th, 16th, and 17th Articles of similar purport, to protect the public property and stores from waste or destruction, by establishing a disciplinary responsi- bility, in addition to the fiscal accountability which is enforced by the auditors of the treasury and the several chiefs of bureaus in the War Department.' It therefore fixes such disciplinary accountability, for the purposes set forth in this Article, in the commanding officer of the troop, battery, or company, who is, by its express terms, made responsible to his regimental commander for any loss, spoiling, or damage not due to "unavoidable accident," or which may occur elsewhere than "on actual eervice." / ^;Tefor__the_disci£linary respon£ibni_ty contemplated by this Article, there is, under existingjaws and regulations, no system oT accountability to regimental commanders for property belonging to the United States. Returns for such property are made upon forms prescribed by the War Department, and are rendered to the chiefs of bureaus to which the prop- erty pertains. In consequence of an opinion rendered by the Attorney- General in 1871," these returns were submitted to the auditor of the treasury for settlement under the general direction of the Secretary of War.* By subsequent legislation, however, this practice has been discon- tinued,' and the examination of property returns is now vested in the executive department to which the property pertains ; and the heads of the several executive departments are "empowered to make and enforce regula- tions to carry out the provisions " of this enactment.' IJnayoidable Accidents are those which are unavoidable in the sense of inevitable, because efEected or influenced by the uncontrollable operations of nature, or "such as result from human agency alone, but are unavoidable under the circumstances." ' The term does not apply to an accident whicli it. is physij cally impossible, ixUihfi_natureu3fJMn.gs^ta.pjeYenI,_but_to an accidegt-naLi lccasioned in any de cree. reni otaLiLJiL indirectly, by the want o^Mch, caje^and_skilL^fi_theJaw h olds every man bim ad-to eseiciae." An accident, on the other hand, is " ayoidable " wlien the act which occasioned it was not called for by any ' See S.irauels, 514. « 13 Opiii. Au.-Gen., 483. ^ Scott, Diirest Mil. Laws of the United States, par. 54, note 19. -• Act of March 1, 1894(28 Stat, at Large, 47). ' Sec. 4, Act of M,irch 1, 1894 (38 Stat, at Large, 47). ' Auderson's Law Diet. THE ABTIOLES OP WAR. 365 duty, and the injury resuUedfr om the want of that extraordinary c are which \,y^ the law reasonably requires of one doing such lawful act, or because the r^ 'accident was thg_j:fisttl*-H9f--at!teal~-negligenc.a or Mly-,and might with reason-,- able care, adapted to the emergency, have been avoided. ' The words " actual service " as used in this Article relate to actual operations in the field ; that is, to a state of military activity in which the operations against the enemy assume paramount importance, and the loss or damage results from acts of war done in the presence of the enemy or in - the actual theatre of military operations. Aeticle 11. Every officer commanding a regiment or an independent troop, lattery^ or company not in the field may, when actually quartered with such command, grant furloughs to the enlisted men, in such numbers and for such time as he shall deem consistent with the good of the servicq^ Every officer commanding aregim-ent or mi independent troop, lattery, or company in~^ie~W^m.ay grantfiirloiighs, %a^ jxceeding thirty^ days at one, time, to five per centuniofth^^enMstedjn^^ good conduct in the line q, duty, lut subject to the approval of the commander of the forces of which saih enlisted men form a part. Every company officer of a regiment command- ing any troop, battery, or company not in the field, or commanding in any garrison, fort, post, or barrach, may, in the absence of Ms field-officer, grant furloughs to the enlisted men, for_a__Jime not exceed ing twenty d ays ly^ in six months, and not to more than two f^^^omtolTe^^^M_a£^e_mm^ ^^ This requirement appears as Article 3, Section 4, of the British Code of 1774, as Article 2, Section 4, of the American Articles of 1776, and as No. 12 of the Articles of 1806. The second clause of the Article is a re-enactment of Section 33 of the Act of March 3, 1863." The final clause of the Article of 1806, permitting more than two persons to be absent at the same time " if some extraordinary emergency should require it," was omitted from the enactment of 1874.' Article 12. At every muster of a regiment, troop, battery, or company, the commanding officer thereof shall give to the mustering officer certificates, signed by himself, stating how long absent officers have been absent and the ' Anderson's Law Diet. ISTo one is responsible for that which is merely thR act of God or inevitable accident. ■ But wh"n human asjency is combined with it, and neglect occurs in the employment of such agency, a liiibility for damages results from the neg- lect. Dygert m. Bradley, 8 "Wend., 473. 8 Section 32, Act of March 3, 1863 (12 Stat, at Large, 736). ' The subject of furloughs to enlisted men is now in part governed by the require- ments of paragraphs 106-112 of the Army Regulations of 1895. A right to a furlough at the end of three years' service, created by the Act of June 16, 1890, (26 Stat, at Large, 157,) ceased to be operative on August 1, 1897, when the statute * fixing the length of the terra of enlistment at three years, in time of peace, went into effect. * Sec. 2, Act of August 1, 1894 (28 Stat, at Large, 216). 366 MILITARY LAW. reasons of their absence. And the commanding officer oj every troop, bat- tery, or company shall give UTce certificates, stating how long absent non- commissioned officers and private soldiers have teen absent and the reasons of their absence. Siich reasons and time of absence shall be inserted in the muster-rolls opposite the names of the respective absent officers and soldiers, and the certificates, together with the muster-rolls, shall be transmitted by the mustering officer to the Department of War, as speedily as the distance of the place arid muster will admit. This provision appears as Article 3, Section 4, of the British Code of 1774, as Article 3, Section 4, of the American Articles of 1776, and as No. 13 of the Articles of 1806. The final clause of the Article of 1776, requir- ing the muster-rolls and certificates to be transmitted to the Congress, was, in the corresponding Article of 1806, so modified as to require them to be transmitted to the War Department " as speedily as the distance of the place and muster will admit." This Article regulates the contents of the certificates of absence, the time of their submission, and points out the person who is entitled to receive them; it also requires that certain data which they contain shall be entered upon the muster-rolls. Aeticle 13. Every officer loho signs a false certificate, relating to tlie absence or pay of an officer or soldier, shall be dismissed frdm the service. This appears as Article 4, Section 4, of the British Code of 1774, as Article 4, Section 4, of the American Articles of 1776, and as No. 14 of the Articles of 1806, in which the scope of the offense was intended to include false certificates in respect to the^ay of officers and enlisted men. The nature and contents of the certificate contemplated are set forth in the pre- ceding Article. The strictness of practice, in respect to musters, certificates of absence, and the like, indicated by this Article and others of similar pur- port, is coeval in its origin with the standing army in England, and had there become well established, as a matter of public policy, when the British Articles were adopted, with some modifications, for the regulation of the military establishment raised by the Congress for service during the "War of the Eevolution.' Akticie 14. Any officer who knowingly mahes a false muster of man or horse, or who signs, or- directs, or allotvs the signing of any muster-roll knowing the same to contain a false muster, shall, upon proof thereof, by ' It will not be a sufBcient defense to a charge under this Article that the ncctised believed the certificate signed by him to be true, if it was false in fact.* Bui held that the mere signing, by an officer, of a voucher for his pay before the last day of the month for which it was due did not constitute an offense of the class intended to be madt punishable by this Article,f » Dig. J. A, Gen., W\ Samuel. 298: O'Brien, 302, t Ibid. See, G. C, M, O, 38, War Department, 1822. THE ARTICLES OF WAB. 367 two witnesses, before a court-martial, lie dismissed from the service, and shall thereby be disabled to hold any office or employment in the service of the United States. This requirement appears as Article 5, Section 4, of the British Code of 1774, and of the American Articles of 1806. It was re-enacted without change as No. 15 of the Articles of 1806. As the offense involves the falsification of an official document, it becomes necessary to a conviction under it to overcome the presumption of good faith which attends the execution of such instruments; the statute, therefore, contains a rule of evidence requiring the testimony of two wit- nesses as to the execution and character of the certificate, in order to war- rant a conviction of the offense named in the Article.' False Muster, etc. — Articles 5, 6, 12, 13, and 14 relate to the military offense known as " false muster," and to certain offenses connected there- with; for this reason they will be considered together. Musters. — A muster is the periodical .assem.bling of organized.cxumaands for review and personal inspection, jn^h^ja. view to the verification of their numbers and^ equipment,, and the, presence and-id entity of theif"Individual memberS;__J^iiddition to the periodical musters above described, the law requires the muster of organized commands which enter the military service of the United States as such, in -response to calls of the Executive upon the several States in time of war or public danger; a similar formality attends their discharge, and the rolls by which such muster-in and muster-out are ' Priov to the inauguration of tlie public audi'ting system in England great abuses had existed in the matter of musters in both the military and naval establisliments; this was especially true of the reigns of the last two sovereigns of the house of Stuart. During the reign of WHliam and Mary a Parliamentary Coirraisslou was created to inquire into the subject. After a protracted investigaiion, in which a great muss of evidence was accumulated, a report was submitted to Parliament in which the existence of specific abuses was established. As a result the system of public audit was inaugurated which was intended to afford a remedy for the abuses complained of, and which was found to be so efficient in practice that it has been continued in existence to the present time.* The qarly Mutiny Acts contained several clauses framed with the object of securing the integrity of the muster-rolls, "but. notwithstanding these ennctmcnls, the Commons committee reported to the House in 1746 that the men granted by Parliament never were effective notwithstanding the allowances which had been made at different times to render them so. The colonel and officers had a strong pecuniary interest, which was nominally under the control of the commissaries on the staff of the army, whose commissions were purchasable, and hence the gratuities paid to these officers weie the sequence to, if not the reward for, their evasion of duty. Either men were alleged to be absent, without certificate of existence, and the word of the regimental officer was accepted in lieu there- of, or tradesmen were dressed up in resrimentals and passed as soldieis.f These Articles are thus seen to present the history of an endeavor to secure accurate and impartial musters, nt regularly recurring intervals, of the troops composing the British mili- tary establishment. Such musters have, as a rule, been corfectly made in the Army of the United States since its establishment ; as is indicated by the relative infrequency of trials for the several offenses described and made punishable in the foregoing Articles. ^ * Clode, Militaiy Forces of the Crown, vol. i. pp. 112-124, t Ibid.^ vol, ii. p. 9. 368 MILITAR7 LAW. accomplished are called muster-in rolls ' and muster-out rolls '' respectively. There may also be musters of individuals, as distinguished from commands, ■ as is the case when an enlisted man executes a contract of enlistment or when, in time of war, an officer of volunteers is promoted from a lower to a higher grade. Muster-rolls. — The written list or instrument in accordance with which the verification is made, and which constitutes the record of the transaction, is called a muster-roll ; the purpose of which is to set forth a true and correct list or roll of the members of the command undergoing muster. These are prepared by the commanding officer of the company or other organization which is presented for muster, who is responsible for the correctness of the statements which they contain. Upon the rolls so prepared, when verified by the mustering officer, payments to the command are based. The verifica- tion or muster is conducted by an officer designated for the purpose in competent orders, who is known as the mustering officer. Musters, How Made. — -The muster of a command is generally, but not always, preceded by an inspection, with a view to determine its disciplinary condition, appearance, and military efficiency, but this is no part of the muster proper. When the p^sence of the members of a particular com- mand or organization has been thus verified, together with that of their armament or equipment, if sach articles be included in the muster, the muster-rolls are signed, and the fact of muster is certified to by the muster- ing officer. The muster-rolls as thus completed constitute the basis of all payments for the period covered by them, and also become the basis of subsequent issues of stores and supplies by the several staff departments of the Army.' False Muster. — The offense of false muster, which is not described in the 14th Article of AYar, must be derived from the definition of the term ' The record of a formal muster-in is an official record, duly made by the proper officers pursuant to law, of an official act performed under the law. It is therefore, in the absence of fraud, conclusive evidence of the facts recorded, and no other evidence IS admissible to show a different -state of facts. Great uncertainty would ensue could such records be set aside by parole or other evidence. Dig. J. A. Gen., 525. par. 1. A muster-in IS not necessarily formal. A mere enrollment is not a muster in, and does not place the party in the military service. But taking up a man's name upon the rolls and accepting his services as a soldier is a constructive muster-in. Ibid., par. 2. the muster-out is a formal discharge from the Army, making the soldier a civilian, and terininiitrng all inilitarv authoritv and .iurisdiction over him. The fact that the United Slates may (as by Sec. 1290, Eev. Sts ) provide transportation to their homes and subsistence en rouU for soldiers after muster-out does not continue them in the mil- itary service. (Sec. 4701, Rev. Sts., defines the period of service of soldiers with refer- ence to tlip apphcalion of the pension laws, but not otherwise.) See, also, the 60th Article of War. Ibid., .525. » The requirement of Article 1. Section 4, of the British Code of 1774, that regi- mental and company commanders should prepare their commands for muster on notice given by the commissary of musters or one of Ms deputies, which appeared as Article 1, Section 4, of the American Articles of 1776, was omitted from the Articles of 1806. the office of commissary of musters having never existed in the Army of the United States, listers in our service are made at regularly recurring intervals, and are conducted by officers detailed for that purpose by competent authority THE ARTICLES OF WAR. 369 master above given. It may be said to consist in general in any acqaies- ; y cence, on the part of the^asterins; offi cer, in tHelalse or fraudulent presen- tation o r~6Snjnera tisnjgTjjiy;j££S^jg^ a4:.tJ.Gle..,o.f progerty persenteS" for master on_tbg,jifliGial muster-rolls. Under this head wouISTall the substi- tution before the mustering officer, in order that he may be entered on the muster-roll, " of one man or horse for another, whether such man or horse belong to the service or not ; the presenting of either a second time, under a difEerent description, at the same muster ; the mustering of any person by a wrong name; or of any person as a soldier who in fact is not a soldier; or of returning officers or men pi'esent when they are in reality absent from the regiment, or of reporting them in the corps or company after they are deceased or have been discharged ; or for representing as effective boys or others who, from youth or infirmity or some other disability, are declared, by the regulations of the service, as ineffective." ' ASTICLE 15. Any officer who wilfully or through neglect suffers to he lost, spoiled, or damaged any military stores belonging to the United States sh all make g o od the loss or damage, and ie dismissed from the service. i^ This provision appears as Article i, Section 13, of the British Code of 1774, as Article 1, Section 12, of the American Articles of 1776, and as No. 36 of the Articles of 1806. This requirement is a re-enactment of the corresponding provision of the Articles of 1806 which applied to commis- sioned officers as a class and, in addition, to storekeepers and commissaries.'' As storekeepers and commissaries are now commissioned officers, they are no longer referred to in the Article by title of office, being included within its scope in their character as commissioned officers of the Army. The Article recognizes both a fiscal and a disciplinary accountability; the former in its provision for the reimbursement of the United States for the damage or loss;' the other in the clause imposing the mandatory punishment of dismissal upon conviction of the offense.' Nature of the Neglect, etc. — -As willful neglect constitutes an essential element of the offense described in the statute, it is proper, at this point, to ' Samuel, 301. " The substitution of one man or horse for another, that he may be entered on the muster-roll, whether .such man or horse be or be not in the service ; the presentine of either or both a second time iinder a different description at the same muster ; the mnsterina; any person under a wrong name ; mustering officers or men present when in fact they are absent : musterins them in corps or company after they are deceased or discharged ; renresentinsr a'? effective bo3'S or others who, from youth infirmity or other disability, are, by regulations of service, ineffective— fill the.sie are so many cases of false musters, and have been so deemed by military courts " O'Brien. 88. » This requirement appears as Article 1. Section 13, of the British Code of 1774. as Article 1, Section 13, of the American Articles of 1776, and as No. 36 of the Articles of 1806; 3 See Sections 1.S03 and 1304. Revised Statutes. * The reqiiirement of Article 36 of the American Code of 1806 respecting the sale, embezzlement, or misapplication of military stores was omitted from the revision of 1874. possibly because of the more comprehensive provisions of the 60th Article, in •which it is, in fact, merged. 870 MILITABT LAW. determine ti-« amount of negligence on the part of a commissioned ofl&cer of the Army -vvbiich will constitute an ofEense under the Article. A neglect to constitute a crime, as it is declared by this Article, must have more, it i& apprehended, than a negative quality about it; especially as it involves, in addition, the civil responsibility of the party to the amount of the loss occa- sioned by it. A neglect to induce such consequences may be supposed to partake somewtat of a positive nature, as, for instance, in the non-observance of special instrr otions or general regulations in reference to the custody or disposal of the things in charge; or in contempt of usage and custom of of&ce, in the discharge of which the trust arises, in respect to the particular charge ; or, wh'^n there are no instructions, regulations, or customs to gaide the of&cer in the custody of the matter or thing entrusted to him, in a, flagrant and gross omission of care, which is usually taken, in legal intend- ment, as an e"'idence of fraud. Any inferior degree of neglect, though implying an absence of a special and refined care, which more considerate or wary persous ure in the habit of using in their own affairs, would not amount, it should seem, to that culpable or criminal negligence, so as to expose the party guilty of it to the multiplied penalties of the Article.' Stoppages to Reimburse the United States. — -The stoppages contemplated in this Article are also regulated in part by Sections 1303 and 1304 of the Ee vised Statutes, which provide that " the cost of repairs or damages done to arms, equipments, or implements shall be deducted from the pay of an officer or soldier in whose care or use the same were when such damages occurred, if said damages were occasioned by the abuse or negligence of said officer or soldier;" ' and that " in case of deficiency of any article of mili- tary supplies, on final settlement of the accounts of any officer charged with the issue of the same, the value thereof shall be charged against the delin- quent and deducted from his monthly pay, unless he shall show to the satis- faction of the Secretary of War, by one or more depositions setting forth the circumstances of the case, that said deficiency was not occasioned by any fault on his part. And in case of damage to any military supplies the value of such damage shall be charged against such officer and deducted from his monthly pay, unless he shall in like manner show that such damage was not ocrasionftd by any fault on his part." ' Stoppages.— The term "stoppage" has already been defined." It has also been seen that the pay of an officer or soldier cannot be subjected to stoppage except by the authority of a statute or regulation specifically authorizing the same, or of a sentence of court-martial imposing a forfeiture or ine as a punishment, or where the party has become indebted to the 1 Samuel, 516. « Section 1303, Revised Statutes. » Section 1304. Revised Statutes. . , , „ * See the title Forfeiture in the chapter entitled Punishments. THE ARTICLES OF WAR. 371 United States on account. In a case of supposed liability to stoppage result- ing from a neglect or an act chargeable as a military offense, and as to which the facts are disputed, it is in general preferable to have the case investigated and the actual pecuniary liability, if any, fixed by a trial by court-martial. A superior is not authorized to stop against the pay of an inferior the value of property charged to have been criminally misappropri- ated.' Nor is it authorized to stop against the pay of an officer or soldier an amount of personal indebtedness, to another ofiicer or soldier, even though such indebtedness may have grown out of the relations of the military ser- vice. Thus an officer's pay cannot legally be stopped, for example, with a view to the reimbursement of enlisted men who have deposited money with him for safe-keeping, and which he has failed to return when required, the officer being accountable for the same in a. personal capacity only." It has been seen that pay forfeited by sentence of a court-martial is, in contemplation of law, returned from the appropriation for the support of the Army to the general treasury, and becomes public money, and, being in the treasury, cannot be withdrawn and restored to the party from whose pay it was taken by way of forfeiture without an act of appropriation, or other authority of Congress. A forfeiture thus executed cannot therefore be remitted, or restored by the pardoning power, whatever be the merits of the case.' A stoppag e is distinguished from a forfeitu re or fine, and an execu tive stoppage, orjtooBa ge by order, cannot be im posed for an offense. But undOT par. 1390, Army Regulations of 1895, it is entirely legal to stop against a soldier's pay an amount required to reimburse the United States for loss on account of damage done to public property, while at the same time bring- ing the soldier to trial by court-martial for the ofEense involved.' Pay due an officer or soldier can legally be stopped only by reason of an accountability to the United States.* Thus it cannot be stopped to reimburse a hospital fund for money stolen, such fund, like a company fund, not being public money. It cannot legally be stopped, for example, to reimburse a telegraph company for moneys received by a sergeant of the then Signal Corps for transmitting private messages over its line, the same not being a line " operated by the United States " in the sense of the Act of March 3, 1883,° and the indebtedness of the sergeant being to the ' Dig. J. A. Gen., 719, par. 1. ' Ibid. , 720, par. 2. 3 Ibid., 431, par. 14. Par. 263, A. R., 1895, requiring deductions to be made from the pay of soldiers in favor of "tradesmen," who, when " relieved from ordinary mili- tary duty," are authorized to make alter, or repair soldiers' uniforms, held to authorize stoppages not only for dues to tailors who are in the military service, but also for dues of civilian tailors. Ibid., 720, par. 4. See, also, Circular 8, A. G. O., 1896. * Ibid., 720, par. 3. ' Ibid., 721, par. 8 ; 16 Opin. Att.-Gen., 477. ' 22 Stat, at Large, 616. i/ 372 MILITARY LAW. telegraph, company only, not to the United States. So held that it would not be legal to stop the pay of an officer for the amount of a local bounty alleged to have been neglected to be paid over by him to an enlisted volun- teer on whose account it was received. An officer or soldier cannot legally be mulcted of any part of his pay for the satisfaction of a private claim.' Article 16. Any enlisted man toho sells or willfully or through neglect ivastes the ammunition delivered out to Mm shall ie punished as a court- martial may direct. This provision appears as Article 2, Section 13, of the British Code of 1774, as Article 2, Section 13, of the American Articles of 1776, and as No. 37 of the Articles of 1806. Prior to the re-enactment of the Articles in 187'4, only a regimental court-martial was authorized to take jurisdiction of the offense set forth in the statute. This Article applies expressly to enlisted inen and, unlike Article 16, is entirely disciplinary in character; it is also much less extensive in its operation, being limited, by the express terms of the statute, to the sale or waste of ammunition only. Abticle 17. Any soldier who sells, or through neglect loses or spoils, his horse, arms, clothing, or accoutrements shall be punished as a court-martial may adjudge, subject to such limitation as may be prescribed by the Presi- dent by virtue of the power vested in him.' This appears as No. 38 of the Articles of 1806, as Article 3, Section 13, of those of 1776, and as Article 3, Section 13, of the British Code of 1774. It was re-enacted in its present form by the Act of July 27, 1892." Prior to such re-euactment the Article required an accused person upon convic- tion to undergo such weekly stoppages (not exceeding the half of his pay) as a court-martial " shall judge sufficient for repairing the loss or damage; and to suffer confinement or such other corporal punishment as his crime shall deserve." As the loss to the United States was not easily or definitely ascertainable, and as no form of corporal punishment except imprisonment ' Dig. J. A. Gen., 721, par. 8. A soldier who deserted from Jefferson Barracks sur- rendered aX Cliicago, where the sum of four dollars was expeuded by the United States for his meals before he could be returned to his station. Held that this sum, as substan- tially included within the item of " expense of apprehending deserter," specified in par. 1390, A. R. of 1890, was properly charged against him on the muster and pay rolls. Ibid., par. 6. The amount of the allowances of the witnesses, or other expense attending the trial, by court-marl i.il, of a soldier, cannot legally be stopped against his pay, whatever the offense of which lie may be convicted. Ibid., par. 7. Held that the Government was entitled to retain so much of a soldier's pay as would cover his indebtedness to it, even though the pay due consist in whole or in part of "detained " pay. (The puni.shment of detaining pay has now been abrogated by the recent G. O. 25 of 1894.) Dig. J. A. Gen., 720. par. 5. Construing Sec. 1766, Rev. Sis., as applying only to bonded disbursing officers, lield that a fine of one hundred dollars, imposed by a civil court upon a soldier for a viola- tion of the postal laws, could not legally be stopped against his pay under that section. But, independently of this statute, the paj^ of an officer or soldier who is in arrears to the United States may always be legally withheld till the indebtedness is satisfied. Ibid., 721, par. 9. See. also, ibid., 353, par. 3. 2 Act of July 27, 1893 (27 Stat, at Large, 377). THE ASTIOLES OF WAS. 373 could lawfully be inflicted, the amendment aboTe described was deemed necessary. \ / Like Article 16, this Article is qgite independent of the regul ations \ ^ relating t o boards of survey. ' The latter T j as s upon question s of Mcwwtar^ ?ii£^il2^3flOE. loss,. jtc^^pX P.ublic„.^ropertj^.,,,,, The..£ou£^m^^ underJiliis«Axticle, siniply imposes punislm^^.^ "* The description, " his liorsej arms", clothing," etc., refers to articles which are regularly issued to the soldier for his use in the service and with the safe-keeping of which he is charged. His property in them is qualified by the trust that he cannot dispose of them while he is in the military ser- vice, and can only use them for military purposes.' Improper dispositions of property in the charge and use of soldiers, other than those indicated in the Article, will in general properly be charged under Article 63. V "2-^ "i y Only th ree offenses are mij | de punishabl e by this Article: selling, th rough 1^^ neglecFIosing, through neglect spoilin g. Any other form of wrongful dis-^ position should be made the subject of a charge under Article 60 or 62. The selling, losing, etc., of objects other than those mentioned in this Article should be charged under Article 62." ' See Article 60, Army Regulations of 1895 ; see, also, the article entitled Boards of Survey in tlie chapter euiitled Militajsy Boaeds, etc. ' Dig. J. A. Gen., 33, par 1. Where a trial is had, the proceedings of a board of surveir, already ordered in the same case, will not lie competent evidence to prove the fact of the loss, etc., charged. G. 0. M. O. 45, Dept. of the Missouri, 1877 ; do. 15, Dept. of Texas, 1877. The present 17th Article (as amended by the Act of July 27, 1893) does not authorize a stoppage or forfeiiure of pay to reimburse the United States. The stoppage which was enjoined by the old form of the Article is dropped entirely from the present statute. This provides for punishment only — does not provide any means of reimburs- ing the appropriation out of which the lost, etc., property was paid for or of repairing the loss or damage as such. So AeM (April, 1893) that a sentence, upon a conviction under this Article, which adjudged a stoppige.of pay "to reimburse the United States for the value of the clothing alienated" was unauthorized and inoperative. Dig. J. A. .Gen.. 35, par. 7. Held (December, 1866) that the provisions of sec. 33, Act of March 3, 1863, prohib- iting the sale, etc., of their arms, etc., by soldiers, and declaring that no right of prop- erty or possession should be acquired thereb}', etc., were hot limited in their operation to the period of the war. but were still in force,* and that an officer of the army would therefore be authorized to seize arras, etc. , disposed of contrary to such prohibition, whenever and wlierever found. But inasmuch as there have been sundry authorized sales of arms and other ordnance stores since the end of the war, advised that officers, before making seizures, should assure themselves that the parties in possession have not acquired title in a legal manner. Ibid., 684. ' Dig. J. A. Gen., 23, par. 3. See next note. Compare ruling of reviewing officer la G. 0. 35, Dept. of the East, 1869 ; and see also do. 31, Dept. of the South, 1877 ; G. C. M. O. 15, Dept. of Texas, 1880. ■* Ibid., 24, par. 3. " Unlawfully disposing of " (or " otherwise unlawfully disposing of '■) clothing, arms, etc., is not a proper form for the charge under this Article. A charge Under this Article should not V)e expressed in the alternative — as that the accused "sold " or "through neglect lost." The selling, through neglect losing, and through neglect spoiling are distinct offenses and are to be so charged. Ibid., par. 5. * Ibid., par. 4. Held that a selling or losing of the following articles was not punish- * See these provisions as now incorporated in the Revised Statutes, in Sections 1242 and 3748. Tlif" further provision of the orisfinal Act making punishable with fine and imprisonment persons purchaa* tag from soldiers their arms, equipments, clothing, etc., has not beeii retained in the Rev. Sts. 374 MILITAUY LAW. Clotliing issued qnd charged to a soldier is not now (as it was formerly) regarded as remaining the property of the United States. It is now consid- ered as becoming, upon issue, the property of the soldier, although his use of it is, for purposes of discipline, qualified and restricted. Thus he commits a military offense by disposing of it as specified in this Article, though the United States may suffer no loss.' Article 18. Any officer commanding in any garrison, fort, or harrachs of the United States wh,o, for Ids private advatitage, lays any duty or impo- sition upon, or is interested in, the sale of any victuals, liquors, or other necessaries of life brought into such garrison, fort, or barracks for the use of the soldiers, shall be dismissed from the service. The 57th Article of the Prince Rupert Code, which provided that " no officer or souldier shall be a victualler in the Army withoat consent and allowance of Our General, or of the officer in chief of the regiment, upon pain of being punished at discretion," would seem to indicate that the prac- tice which is prohibited in the 18th Article had, at one time, been authorized in the British service, with the sanction or approval of competent superior authority. The present Article, which was adopted without substantial change from the corresponding British Article, first appeared as Article 4, Section 8, of the American Articles of 1776, and was re-enacted as No. 31 of the Articles of 1806. It is the purpose of this Article to insure the supply of provisions and other supplies to soldiers free from all unauthorized taxation and from the influence of officers in command of the military posts and stations of the United States. " The letting out of houses to sutlers at an exorbitant price, or the connivance at the act in others, or the laying of any duty or imposi- tion on victuals, etc., brought into garrison, for the private advantage of the governor or commanding officer, are offenses of so clear and definite a char- acter as not to demand any illustration. But the remaining offense — the being interested in the sale of victuals or merchandise, etc. — is nob so per- spicuous or so easily discernible as the others immediately preceding. The interest here intended is not only a direct interest, such as a proprietorship or part proprietorship in the articles sold, but a collateral, indirect, and even very remote interest in the objects of sale." ' able under Article 17, viz. : sheets, pillows, pillow-oases, mattress-covers, slieller-tent, barrack-bag, greatcoat-strap, tin cup, spoon, knife, fork, meat-ration can, cartridges. Dig. J. A. (jen., 24, par. 4. Of such unlawful disposition of public property the pawning of a revolver is an example. G. C. M. O. 77, Dept. of the Missouri, 1874. So the gambling away of clothing. G. 0. M. O. 41. Dept. of Texas, 1873. So the spoiling by a bugler of his bugle. G. C. M. O. 36, War Dept., 1876. > Dig. J. A. Gen., 34, par. 6. ' Samuel, 445-447. "It was so determined by a general court-martial held at Cawn- pore, in the East Indies, in 1811, on the trial of Lieutenant-Colonel H. G. Wade, of his Majesty's 8th Light Dragoons, on the express charge of having violated this Article in having exacted and received from Daniel Clarke, licensed sutler in the cantonments at THE ARTICLES OF WAR. 375 The ofEense here described is a form of extortion which may be defined as a crime committed by an officer of the law who, under color of his office, unlawfully and corruptly takes any money, or thing of value that is not due him, or more than is dae, or before it is due. The officer must unlawfully and corraptly receive such money or article of value for his own benefit or advantage.' The money so obtained, having been received and held without authority of law, cannot become the property of its possessor; the lawful title thereto continuing in the person from whom it was extorted. The law, therefore, creates an obligation to refund money so illegally paid, the obli- gation to repay accruing at the date of the extorsive payment." Akticle 19. Any officer tvho uses contemptuous or disrespectful words againsi the President, the Vice-President, the Congress of the U^iited States, or the chief magistrate or legislature of any of the United States in which he is quartered shall ie dismissed from the service, or otherivise punished as a court-martial may direct. Any soldier who so offends shall be punished as a court-martial may direct. This appears as 'So. 5 of the Articles of 1806, as Article 1, Section 3, of those of 1776, and as Article 1, Section 2, of the British Code of 1774. In the British Article the ofEense is made to consist in the "use of traitorous or disrespectful words against our Royal Person or any of our Royal Family." As there was no executive head to the Government under the Revolutionary Congress, or to that under the Articles of Confederation, the offense, in the Articles of 1776, was made to consist in the use of such words against " the authority of the United States in Congress assembled, or the legislature of any of the United States in which the offender may be quar- Cawnpore, * * * two bribes of one hundred rupees each, * * * in consideration of his having allowed the said Clarke to sell spirituous liquors in the lines of the corps under his command. The court pronounced the accused guilty of the circumstances charged, and sentenced him to be cashiered. The interest of the officer was, in this instance, so remote, and so trivial in itself, being in its utmost value short of twenty-live pounds, that it could not be supposed to have operated in any oppressive degree on the sale of the liquors to the soldiery, as the sum exacted from the sutler might be repaid to him, in the course of his dealings, by the imposition of so slight an addition on the articles retailed as to be scarcely perceptible to the consumer. But the quantum, or relation of the interest, is not so much an ingredient of the oifense as the having any interest at all engaged, which may set the officer's private advantage at variance with his public duty. In this view the most trifling amount capable of being traced to the pocket of him who takes it may be an equal inducement to criminal connivance with the highest conceivable bribe, which is not to be weighed in the scale or estimation of the giver, or of any third party, but of the receiver alone ; it is the wages of sin, and of his own settling." Ibid. ' U. S m. Deaver, 14 Fed. Rep., 595; Com. vs. Wheatley, 6 Cow.. 661 ; Com. vs. Mitchell, 3 Bush, 25 ; Com. vs. Bagley, 7 Pick., 246. * U. S. vs. Bank of Washington, 6 Pet., 19. Section 5481 of the Revised Statutes contains the general provision of law upon this subject, which, as will be seen, is some- what more extensive in its scope than the 18th Article of War: "Every officer of the United States who is guilty of extortion under color of his office shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than one year, except those officers or agents of the United States otherwise diilerently and specially provided for in subsequent sections of this chapter." 2--/-0 1 376 MILITARY LAW: tered." The words " tte President, the Vice-President" were added to the Article in the revision of 1806. When a trial of an officer or soldier has been resorted to under thia Article, it has usually been on account of the use of "contemptuous or dis- respectful words against the President, ' ' or the government mainly as repre- sented by the President. The deliberate employment of denunciatory or contumelious language in regard to the President, whether spoken in public, or published or conveyed in a communication designed to be made public, has in repeated cases been made the subject of charges and trial under this Article ; ' and where taking the form of a hostile arraignment, by an officer, of the President or his administration for the measures adopted in carrying on the late war — a juncture when a peculiar obedience and deference were due on the part of the subordinate to the President as executive and com- mander-in-chief — was in general punished by a sentence of dismissal. On the other hand, it has been held that adverse criticisms of the acts of the President, occurring in political discussions, aud which, though characterized by intemperate language, were not apparently intended to be disrespectful to the President personally or to his office, or to excite animosity against him, were not in general to be regarded as properly exposing officers or soldiers to trial under this Article. To seek indeed for ground of offense in such discussions would ordinarily be inquisitorial and beneath the dignity of the Government.' Article 20. Any officer or soldier wlio lehaves himself with disrespect toward his commanding officer shall be punished as a court-martial may direct. This requirement appears in somewhat less comprehensive terms as Article 11 of the Prince Eupert Code, where it is provided that "if any officer or souldier shall behave himself disrespectfully towards Our General, Lieutenant General, or other Chief Commander of the Army, or speaks words tending to his harm or dishonour, he shall be punished, according to the nature and quality of his offense, by the judgment of Our General Court- Martial. " The provision appears as Article 2, Section 3, of the British Code of 1774, and as Article 2, Section 3, of the American Articles of 1776. In the British Article of 177i the offense may be committed by " any officer or soldier who shall behave himself with contempt or dis- respect towards the general or other commander in chief of On r Forces"; in the American Article of 1776, however, the offense is committed by " any officer or soldier who may behave himself with contempt or disrespect • Dig. J. A. Gr'ii , 23, par. 1. Seo cases in G. C. M. 0.,43. War Dpnt., 186B ■ G. O. 171, Army of the Potomac, 1863; do. 23, id.. 1863: do, .52. Middle Dept., 1868- do 119. Dept. of the Ohio. 1863 ; do. 33, Dept. of the Gulf. 1863 ; do. 68. Dept. of Wash- intrton, 1864 ; do. 86, Northern Dept., 1864 ; do. 1, id., 1865 ; do. 29, Dept. of No. Car , 1865 « Dig. J. A. Gen., 25, par. 1. THE ARTICLES OF WAR. Sl7 towards the General or other Commander-in-Chief of the forces of the United States." In the 6th of the Articles of 1806 the scope of the oiiense is no longer restricted to the commander-in-chief, but is extended so as to include the commanding officer of the accused. In the re-enactment of 1874 the offense is made to consist in " disrespect " only. The offense here made punishable is characteri zed in g enera l t erms and is \ / not s pecificallydefined in the Articles of War. It may consist in either be- ' Imvior, ac ts, or utterance s winch "are' explici tly seT 'forth i n the charges and specificatiansT-an d wnicii must "be"'esTablished in evidence by the testimony of witnesses.' It must be shown in evidence under the charge that the officer offended against was the " commanding officer " of the accused." The commanding officer of an officer or soldier, in the sense of this Article, is properly the superior who is authorized to require obedience to his orders from sach officer or soldier, at least for the time being. ° It is for the coart to determine from the evidence submitted whether the acts, utterances, or conduct so established constitute disrespect toward the commanding officer within the meaning of the Article. It will be observed t hat no specific intent is alleged in the Article as essential to constitute the offense; it is therefore not necessary to a conviction under it that the dis- respectful conduct charged in a particular case should have been due to deliberate design. A want of cJYility is equally pu nishable with an act of ^i^ premeditated disrespect. It is the purpose of the Article, therefore, to insure respect for the person and office of the individual standing, in respect to the accused, in the rela- tion of commanding officer; and to protect him from such acts, utterances, or behavior, whether arising from rudeness of manner, want of civility, or deliberate design, as are in themselves disrespectful, or are calculated to lessen the reputation of such commander, or to affect injuriously the dignity attaching to his rank or station in the military service. ' Tlie di's'-espefit here indicated may consist in acts or words : * and 'the particular acts or words i-clied upon as con=tifutiner the offense should properly be set forth in substance in thp specification.! Dia;. .T. A. Gen., 36, par. 1. = G. 0. 53. Dept. of Dakota, 1871. ' Dig. J. A. Gen., 26. par. 1. Tims where a battalion was temporarily detached from a rectiment and placed under the orders of the commander of a portion of Jhe Army distinct from that in which tlie main part of the regiment was included, A«M that it wms the commander of this portion who was the commanding officer of the detachment; and that tlie use by an officer of such detachment of disrespectful language in reference to tl'e regimental commander (who had remained with and in command of the main body of the regiment) was properly chargeable not vinder this Article, but rather under the 63d. Ibid. Held that disrespectful language used in regard to his captain by a soldier, when detached from his company and serving at a hospital, to the surgeon in charge of which he had been ordered to report for duty, was an offense cognizable by court-martial, not under this Article, but under Article 63. Ihid., par. 3. * R. O. 44, Dept. of Dakota, 1872. And see G. C. M. O. 28, War Dept., 1875; G. O. 47, Dept. of the Platte. 1R70. t G. C. M. O. 33, Dept. of the Missouri, 1872. ^'^^ MILITARY LAW. : Article 21. Any officer or soldier who, on any pretense whaisoever, I str ikes Ms s uperior officerTofl iraws drUfts up any weapon, or offers any violence against him, being in the execution l)f his office, or disobey s ann law- ful comman d of his superior officer, shall suffer death, or such other pun- ishment as a court-martial may direct. This Article, embodying as it does the most important principle known to military law, seems to hare been derived, in its present form, from Article 16 of the Prince Rupert Code in the shape of a requirement that " if any inferioar Officer or Souldier shall refuse to obey his snperionr officer, or shall quarrell with him, he shall be cashiered, or suffer such punishment as a Court-Martial shall think fit. But if any Souldier shall presume to resist any Officer in the execution of his office, or shall strike, or lift up his hand to strike, or shall draw, or offer to draw, or lift up any weapon against his superiour officer, upon any pretense whatsoever, he shall suffer death, or other condign punishment, as Oar General Court-Martial shall think fit." This requirement was substantially repeated in successive Articles of War until 1717, when, on account of its extreme importance to discipline, it was embodied for the first time in the Mutiny Act, in a provision imposing the penalty of death upon any officer or soldier who should refuse "to obey the military orders of his superior officer "; no limitation being placed, however, upon the legality of the orders.' In this form the bill was opposed in Par- liament, and a protest against its passage was ordered to be entered upon the Journal of the House of Lords.' From the year 1718 to the year 1749 the enactment ran thus: " any lawful command of his superior officer"; but these words gave rise to controversy, and in 1733 were used as an argument against the increase of the standing army." In the year 1749 the words were altered so as to appear as they have stood in each of the successive Mutiny Acts or Articles of War that were enacted or promulgated between that date and the date of the permanent Army Discipline Act of 1879.* In the re-enactment of that statute in 1881 the provision appears in the following form: " Every person subject to military law who strikes or uses or offers any violence to his superior officer, being in the execution of his office, or who disobeys, in such manner as to show a willful defiance of authority, any ' I. Clode, Military Forces of the Crown, 155 ; 3 Geo. I., ch. 3, sec. 1. ■'Ibid., 155. ^ Ibid.. 156. * "This limitation, which must always have been the implied intention of the law, was expressed by the insertion of the word ' lawful ' in the Mutiny Act of 1718, and has obviiited any misunderstanding of its tine meaning in this respect. But the wording of the Mutiny Act and the corresponding Article, as thus altered, 'refuse to obey any law- ful command,' left room for a question whether they extended to disobedience, unac- companied by an express refusal ; and this was again altered in 1749 to the existing form, ■ disobey the lawful command.' This extends to every act of direct disobedience, whether active or passive, but the capital offense is not complete by mere neglect or forgetful ness. There must be an intentional disobedience or defiance of authority, although not neces- sarily expressed in words." Simmons, § 178. TEE ARTICLES OF WAR. 379 lawful command given personally by his superior officer in the execution of his office, whether the same is given orally or in writing, or by signal or otherwise, shall, on conviction by court-martial,, be liable to suffer death, or such less punishment as is in this Act mentioned." ' The provision appears as Article 5, Section 3, of the American Articles of 1776, being adopted without change from the corresponding Article then in force in the British service." It was enacted as No. 9 of the Articles of 1806, and was re-enacted in the same form in the Articles of 1874. Orders ; Nature and Character. — Orders are aut hori tative directio n3__iii respect to t he military seryice issuing from a competent military super ior, whTch constitute obligatory rules of conductfora^ljmiUtajy persons under / the^command of tTie~o fficer f r om whom they proceed.' FdrmT— IfTas will presently be shown, an order be lawful and within the aubhority and discretion of the commander by whom it is issued, its form is a matter of but minor importance. Order s may therefore be giv en or communica ted either orally or in writing ; they may take the shape of formarofficial utterances, and may be issued in reguFar numbered series; or ^' they may ap£ear_in__the-.form of drculars or memoranda, or as letters of instruction addressed to the^gerson whose conduct is to be_affected by them. General (jyQ!ers_are_ those c ontainin g directio ns o r infor mation which affect the ^entire command of the a ut hority from w hich t heyjjgianate ; * 8^)£imaL Or(fersaja-s»ei-as.cailcem individuals or which relate to matters which need not "Bemade known to the^ entire command.^ _Th eir, binding- effecti^ the same iTT ' Manual of Miliiary Law, 334, 335. « Article 5. Sec. 2, British Code of 1774. ' Orders properly so called are iu general addressed to, and are intended to regulate the conduct of, all military persons under the command or control of the superior from which they emanate, or to affect a considerable number of such persons ; instructions are directions of similar origin which are intended to govern the actions of the individ- uals to whom they are addressed. Landrara vs. U. S., 16 Ct. Cls., 74. Their obligatory character, however, is the same in either case. * General orders announce the time and place of Issues and payments, hours for roll- calls and duties, police regulations and prohibitions, returns to be made and their forms, laws and regulations for the Army, promotions and appointments, eulogies or censures, the results of trial by general courts-martial in all cases of officers or of enlisted men involving matters of general interest and importance, and generally whatever it may be important to publish to the whole command. Orders eulogizing the conduct of living officers will not be issued except in cases of gallantry in action or performance of spe- .cially hazardous service. Par 771, Army Reg. 1895. ' Special orders are such as concern individuals or relate to matters that need not be made known to the whole command. Par. 773, ibid. General and special oi'ders are numbered in separate series, each beginning with the calendar year or at the time of the establishment of the lieadquarters. Orders issued by commanders of battalions, companies, or small detachments are simply denominated "orders," and are numbered in a single series, beginning with the year. Circulars issued from any headquarters are numbered in a separate series. Par. 770, Und. An order will state at its head the source from which it emanates, its number, date, and place of issue, and at its foot the name of the commander by whose authority it ia issued. It may be put in the form of a letter addressed to the individual concerned through the proper channel. Par. 774, ibid. Orders for any body of troops will be addressed to its commander. They will be / 380 MILITARY LAW. Essential Elements. — As disobedience of lawful orders constitutes one of the niost serious offenses known to military law, it is important to know ■what constitutes a lawful order within the meaning of the Article; it is also important to know when orders, as such, become operative; that is, when they acquire such binding force as to confer upon a failure in respect tO' obedience the character of a military ofEense. When an order is given to an ofiB.cer or soldier by ajgroger militarysujgerior, ' the subordin ate ...i s jipt j er- mitted to question eith er its proprietY.,or expediency; still less is its legalit y a matter which is submitted to him for quasi-judicia^^ determination/ The Articles ot war, which he has voluntarily accepted as a rule of official con- duct, require of the inferior instant and exact obedience to the orders of his- military superior; the presumptions of regularity and good faith which executed by the commauder present, and -will be published and copies distributed by him when necessary. Par. 775, Ainiy Regulations 1895. Orders and instructions will be transmitted through intermediate commanders in order of rank, except when they are of such character that the commanders have no- power lo modify or suspend them. In such cases the orders or instructions will be sent direct to the officer by whom they are to be executed, copies being furnished lo the intermediate commanders. Par. 777, ibid. Prmted orders are generally distributed direct to posts by the headquarters from which issued. Files of such orders will be kept by each regiment and companj' and at each militiiry post, and will be turned over by a commander when relieved to his suc- cessor. If general ordcr.s in regular succession are not received within a reasonable time, commaudiug officers i-ill report missing numbers to the proper headquarters. Par. 778, ibid. In camp or garrison, orders that affect a command will, as a rule, be read to the troops at the first regular parade after they are received. In the field, when orderly- hours cannot be observed, they will be sent direct to the troops, or commanders of regi- ments or corps will be informed when to send to headquarters for them, or during a. lialt orders will be read to troops without waiting for the regular parades. Par. 779, ibid. General or special orders relating to the Army issued from the War Department by the Secretary of "War. or by his direction, are to be presumed to be made by the author- ity of the Pre'sidont, and to be viewed as his orders equally as if he had subscribed the same. Dig. J. A. Gen., 544, par. 1. , ■ The term officer ("superior oflBopr "1 in this as in other Articles of War means com- missioned officer.* So /ieM that the disobedience by a cadet private of the Military Academy of an order of a cndct lieutenant ot his company was not chargeable under this Article, but was an ofEense under Article 62. Ibid., 30, par. 17. The "sunerior officer," in the sense of this Article, need not necessarily have been the commanding officer of the accused at the time of the offense. The Article is thus- broader than Art. 20, which relates only to an offense against a " commanding officer." Ibid.. 37, par. 4. Where an inferior officer was charged with having disobeyed an order given him on the spot by a superior officer, Tield that it should be made to appear in proof that the latter, if not personally known to the accused to be his superior officer, was recognizable as such by his uniform or otherwise. Ibid., nar. 5. ' In the Cedarquist Case the Judge Advocate-General said : " There can be no more dangerous principle in the government of the Army than that each soldier should deter- mine for himself whether an order requiring a military duty to be performed is neces- sary or in nccordance with orders, regulations, decision circulars, or custoii, and that he may disobey the order if, in his judgment (taking, of course, all risks in case his judgment should be erroneous), it should not be necessary or should be at variance with orders, regulations, decision circulars, or custom. It i« his duty to obey such order first, and if he should be aggrieved thereby he can seek redress afterwards." * See the provision introductory ,tn the Articles of War of Sec. 1342, Rev. Sts.. in which it is speci- fied that " the word officer as used thereinshall be understood to designate commissioned officers. THE ARTICLES OF WAR. 381 attend public officers in the performance of their duties apply to the orders of a superior with precisely the same force as to his other official acts. A lawful order may therefore be defined as a command issued by a military super ior to a person under his command, r e£uiring;^n act toTe done which ^ s perm itted, san ctioned, or justified by_ the law of the land. All directions or instructions in respect to the military service which are issued in pursu- ance of statutes, regulations, or the command of superior authority, or which are in execution or furtherance of the same, are lawful orders, and as such are entitled to prompt obedience. If_^aqu^tion arises in respect to their legality, and the order is no t on its face clearly and obvTously in contraven- tioS of law," itTs the duty ot' i}h.'e inf erior^'Io~resolve su c Fdoubt^iir°lay'or_b f obedience, relying for justi fi cation upo n the forms of the order so receiv ed andobeyed.' Except in the solitary instance where the illegality of an order is glaringly apparent on the face of it, a military subordinate is com- pelled to a complete and undeviating obedience to the very letter of the command received." No other _ j ; )bligation-niust be put in competition with ' Under a charge of disobedience of tbe order of a superior officer in violiition of this Article, it should be alleged, and should appear from the evidence introduced, that the order or " command " was " lawful." An oflficer or soldier is not punishable under this Article for disobeying an unlawful order. But the order of a proper superior is to be presumed to be lawlul, and should be obeyed where it is not clearly and obviously in contravention of law. To justify, from a military point of view, a military inferior in disobeying tbe order of a superior, the order must be one requiring something to be done which is palpably a breach of law and a crime or an injury to a tbiid person,' or something of a sericjus char- acter (not involving imporliint consequences only) which, if done, would not be sus- ceptible of being righted. An order requiring the peifoi»mance of a military duty cannot be disobeyed with impunity unless it has one of these characters. Unless the illegality is unquestionable he should obey first and seek redress, if entitled to any, afterwards. A military inferior in refusing or failing to comply with the order of a superior on the ground that the same is, in his opinion, unlawful, does so of course on his own personal responsibility and at his own risk. Dig. .T. A. Gen., 27, par. 7. Where an officer respectfully declined lo comply with the direction of his superior to sign the certificate to a report of target-firing on the ground that the facts set forth in sifch certificate were not within his knowledge, he having been stationed at the butt, where he was not in a position to be informed as to such facts, held that he was not amenable to a charge of disobedience of orders under this Article. Ibid., 30, par. 16. See, also. iUd., 29, pars. 12, 14 and 15. * Eeld that a member of a post band who refused (respectfully) to obey an order of the post commander directing the band to play in a town in the neighborhood of the post for the pleasure of the inhabitants was not chargeable with a military offense, such an order not being a " lawful command " in the sense of this Article. So held that a sol- dier was not chargeable with "disobedience of orders" in not complying with an order , forbidding him to" contract marriuge; and similarly lield of a refusal by a soldier to com- ' ply with an order (in violation of Sec. 1332, R v. Stat.) to act as an officer's servant. So where a soldier was convicted of a disobedience of orders in refusing lo assist in build- ing a private stable for an ofiicer, the finding was disapproved on the ground that such an order was not a lawful one. G. C. M. O. 180, Dept. of Dakota, 1879. Ibid., 28, par. 8. ^Samuel, 287. The most import;int consequences may often rest on the precise, mechanical execution of an order which in appearance to the military inferior may have a substantive and a sole object in view, while in the design of the commander it may he combined with a vast and various machinery, and a deviation from it, even with thi' best intentions and the liest success, separately considered, might defeat the grand end (if the meditated enterprise. Hence ii is scarcely impossible to innigine a case when 382 MILITARY LAW. /this; neither_^j)areiital authority/ nor religious scruples,' nor person al —yf sgietVjj^^npj pecuniary advantages from other service. All the duties of his life are, according to the theory of military obedience, absorbed in that one duty of obeying the command of the officers set over him.* When Operative. — It is a well-known principle that all persons are pre- sumed to know the law of the State within which they live or in which they are temporarily domiciled; a similar rule prevails as to knowledge of the orders of a military commander which have been duly promulgated to his command. It may therefore be said that an order affecting a military person becomes operative as to such person when he has received military notice of its existence and contents; that is, if the order be general ia character, it becomes operative when it has been formally promulgated to the command to which it pertains; if it be special or individual in its operation, it becomes effective when it has been served upon, or received, by such person through the usual military channels.' J The notice^ the. order, to affect the officer, should thus be & personal -^ / notice, actual or constructive, and it should be an official notice. Personal ? information of the same given to him by another officer or pe rson no t specifi^aljjauthorized or required by his duty to communicate it will not in generalbejegallj^ sutficJenTf "hof, on the otlier hand, "will the i nere offi cial "/^ publication of the same at tlie headquarters of the Army or of~a_ieparE^" men£ without his being himself personally advised of the same, be suffic ient to j;ive effect to the order.' Disobedience of Orders. — The offense of disobedience of orders contem- plated by this Article consists in a refusal or neglect to comply with a a subordinate officer would be at liberty to depart from llie positive command of his superior. Samuel, i8T. ' Rex vs. Rotberfleld, 1 Bar. & Ores., 350. » Captain Atchison's Case, 88 H. D. ( ), 319; 24 ibid (2), 299; and 25 ibid., 351, 421. ' Suttou vs Johnstone, 1 Term Rep., 548. See, also, In re Grimley, 137 U. S., 153; 1J. S. w. Cliirke, 3 Fed. Rep., 713. ■■11. Clode, Mil. Forces, etc.. 87. ' No precise rule can be laid down as to when a military order affecting tlie status, pay, rigliis, or duties of au officer can be said to become operative as reeards himself. A general principle, analogous to that of the law of notice, sliould ordinarily be applied" to the cases, and the order be treated as not legally taking effect until the officer is per- sonally officially notified of tlie same. In the absence of an actual personal delivery to or receipt by him of the order or an official copy, the fact of the promulgation or receipt of the ^ame a: his proper military station will in general be presumed to have given him official notice of its contents — a presumplion, however, liable to be rebutted by proof that, without any fault or negligence of his own, knowledge of the same was ' never actually brought home to him, — as where, for example, he was at the time absent on leave, or ill at a distant hospital, or a prisoner In the hands of the enemy, and there- fore was not notified in fact. Dig. J. A. Gen., 545, par. 2. ' Where indeed the officer fails to receive personal official notice by reason of some fault or neglect of his own, as because of his having absented himself without authority from his station when the order arrived, or because, being on detached service, he has not duly advised Ihe Adjutant-General of his address as required by par. 805, Army Regulations, he will not be permitted to take advantage of his own wrong, and the receipt of the order, at his proper station, or last reported station, will be held to operate as due and efleclual, or constructive, notice. Ibid. THE ARTICLES OF WAR. 383 specific order to do or not to do a particular thing. A^ mere failure t o per- ji ^^ f orm a routine dnty is properly charged under Article 63.' Where an oBicer neglected fully to perform his duty under general instractions given him in regard to the conduct of an expedition against Indians, held that his offense was properly chargeable not under the 21st but under the 62d Article. ' A^breachM-a n armv regulat ion imposing. a dnt y, upon a n. officer j.^ or soldier is in general chargeable as " condact. to-th£_pre-jadice of good/^^ order and milit3ry,diafiiplilie,Il-aad»piMid«hable-under Article 63." ' , A non-compliance by a soldier with an order emanating from a non-\^ commissioned officer is not an offense under this Article, but one to be J charged in general under the 63d.* An officer or soldier on leave of absence cannot in general be made liable to a charge of disobedience of orders, except, indeed, where required by a positive order, issued on account of a public emergency, to return before his leave has expired, and he has failed to comply with such requirement." Character of the Disobedience. — Disobedience may be either necjative or u^ positive. It may consist in the non-observance or neglect of what is enjoined in the orders of a superior issued or published long anteriorly to the com- mission of the act of disobedience, such as general regulations laid down by proper authority for the conduct of officers or soldiers in a particular regi- ment, or standing orders to be observed throughout the army; or it may consist in the refusal or resistance of commands instantly and presently given, and directed to be obeyed with promptitude. In the fi rst, the orde rs might be o f no immediate urgenc y or of n o great imp ortance, and the dis- obedi ence t o them might arise out of, simple_ negligence or, possibly, a momentary fo rgetfuln ess of the existence of the particular orders, or ouit of a sudden, unguarded, or unperceived lapse into crime; in none of these eases is there implied any bold or wanton defiance of authority, or any more serious offense t han is pr ovided ^against in jhe .63j,_ArUcle . and which is regarded as a military misdemeanor only, under the description of a neglect "to the prejudice of good order and military discipline" to be punished at the discretion of a court-martial. ° In the second, the absolute resistance of or refusal of obedience to a present and urgent command, conveyed either_oraliy or in wrrEThg, by the l^ noncompliance with whichjmn^knmediate act, necessary to be done, might be impe3^ed^_orjief^ted, as_high an offense is discoverable- as can well be contemplated by the military mind; inasmuch as the principle whicli it ' See 6. C. M O. 36, A. G. O., 1873; do. 7, Department of Texas, 1874; ibid., 34, Fifth Mil. Di.st., 1868. « Die. J. A. Gen., 28, par. 9. * Ibk., 168, par. 5. * Ibid., 37, par. 6. » Ibid., 39, par. 10. « Samuel, 385. L^ -^l 384: MILITARY LAW. holds out, if eaconragea or not suppressed by Some heavy penalty, would forbid or preclude a reliance on the execution of any military measure. Prompt, ready, unhesitating obedience, in soldiers, to those who are set over them is so necessary to the safety of the military state, and to the success of every military achievement, that it would be pernicious to have it under- stood that military disobedience in any instance may go unquestioned.' 1 It is this positive disobedien ce, therefore, evincing .a„re fractorY spir it in /th e inferior, an ac tive opposition to the cajapiaods-olfl, superior, agains t which_it must be supposed that the severe penalty of the Article is princi- pally directed. This highly criminal disobedience may arise either out of the refusal of the ofBcer or soldier to act as he is ordered; to march, for instance, whither he is bidden, or to desist from any act or purpose which he is prohibited by a direct command from pursuing; for it would, in many circumstances which may be easily imagined, be as dangerous to persist in a forbidden course as to decline or recede from one that is commauded. Whether the orders of the superior enjoin an active or passive conduct, the officer or soldier subject to them is equally obliged to obey. Otherwise every military operation or enterprise would be made to depend, not on the prudence or counsel of the commander, but the will or caprice of the sol- diery, either for the furtherance or obstruction of its object." It is not to be understood that the construction placed upon negative disobedience by courts-martial is such as to make such an offense one of minor consequence. It will be observed that the Article itself makes no dis- tiaction between one act of disobedience and another; — whether any is to be made, indeed, will depend upon the view which a court-martial may take of the circumstances submitted to Tt ; — " wherever it is made, it will be, not in relaxation of the principle of military obedience inculcated by the Article, but in the exercise of a discretion lawfully resident in the court to miti- gate, according to circumstances, the rigor and severity of the law." " Specific Character of the Mandate.—" It must be presumed that the dis- > bedieuce of orders contemplated by the Article is a positive and willful ct.sobedience of an order specially or directly given to the accused, and not a jnere neglect or omission of general duty" required by regulations or general orders (which, as will presently be seen, is an offense chargeable under the 62d Article), " unless he be specially directed to perform such duty in the instance alleged" ;" in which case such special direction, given by a com- petent superior, operates to convert the requirement of regulations or orders ' Samuel, 285* ^ Ibid., 2%&. 'Ibid. ■" O'Brien, 84. * On January 2(1. 1798, Thomas, Lord Oamelford, shot down Lieut. Peterson o£ the ship Perdrix " for vQi'j extraordinary and manifest disobedience to his lawful orders, and for arming the ship's company to resist, the same." For this he was honorably acquitted by a naval court-martial on the 20th of January following. A naval court-martial gave a similar acquittal, on September 27, 177.5, to an officer charged with shootinp; down one of four sailors leaving the ship as deserters. Clode, Mil. I^w, 180, note. THE' ARTIGLE8 OF, WAR. 385 into a specific order to tlie accused, and to give to his failure to obey such direction, the character of disobedience of a positive order. ^ Channels of Communication. — -" In a charge of disobedience of orders it is requisite to shov? that the communication, verbal or written, from the superior to the inferior was actually and truly an order. Ah order is a posi- tive direction to do or not to do some act. It may be conditional, that is, it may be a positive direction to do or refrain from doing some act under certain circumstances or if certain things should occur. The form in which this order is given by the superior is immaterial, provided it does convey to the accused a positive direction. It has been decided, in the case of orders, I / that an official communication made to the accused by any commissioned / it officer s tating that the siipRrinrdireots -him to do^ so and so is an order; ( the accused being bound to presume that the commissioiieci officer "speaks truly. All that is required is that the agent communicating the orders should state that he does so by the order, or by the direction or request, of the superior; or that he should make known to the accused that, in the case in question, he is acting not in his own name but in the name of the superior." ' Presumption of Knowledge. — An order will always be presumed to have been " made known to the accused if it has been published in the usual manner, as on parade, etc. In such cases it would be difficult for the accused to rebut this presumption, as it is the duty of every officer to acquaint himself with auch orders. If the order has not been published in the customary manner, it is requisite to show in some other manner that the order was really made known to the accused, or at least to raise such a presumption of this fact as to throw the burden of disproof on the prisoner. The presumption generally bein^that orders were communicated, and that a superior on duty was known to be so, it requires no great amount of evidence to throw the burden of disproof on the accused in such instances.- As a general rule, an order will also be presumed to be legal, and proof on this point is seldom required, though of course the court in making its finding is absolutely bound to consider this question, whether raised or waived in the coijrse of the trial." ' Obedience to Orders as a Defense. — To determine how far obedience to orders may be pleaded in defense, it is necessary first to understand the military duty of obedience. "The Article enjoins obedience to the 'law- ful ' order of a superior. The order of a proper superior is presumed to be lawful, and should be obeyed where it is not clearly and obviously in con- travention of law," for, as will presently be seen, an inferior will not in ' O'Brien, 84, 85. " A staff officer has, except by assignment, no right to give a military order to an officer of the line ; if he should do so without stating that he did so in the name of a superior to the line officer, such order would be invalid." O'Brien, 85. See, also, Winthrnp, Mil. Law, 814-830. s O'Brien, 83, 85 ; Winthrop, 814-820. 386 MILITARY LAW. 7 general be held liable by a court-martial for an injurious consequence of his execution of the order of a superior,' unless th e same was palpably illegal on its fa ce. Unless, therefore, the illegality of the order is unquestionable, the subordinate should obey first and seek redress, if entitled to any, after- wards.' "To justify, from a military point of yiew, a military inferior in disobey- ing the order of a superior, the order must be one requiring something to be done which is palpably a breach of law and a crime or an injury to a third person, or is of a serious character (not involving unimportant consequences only) and if done would not be susceptible of being righted. An order requiring the performance of a military duty or act cannot be disobeyed with impunity unless it has one of these characters. And a military inferior in refusing or failing to comply with the order of a superior on the ground that the same is, in his opinion, unlawful, does so, of course, on his own personal responsibility and at his own risk.'" An act done in the execution of a military order may give rise to a ques- tion of military responsibility, which will properly be determined by a ' See the provision introductory to tbe Articles of War of Sec. 1342, Rev. Sts., ia ■which it is specified that " the word officer, as used therein, shall be understood to desig- uate commissioned officers." A non-compliance by a soldier ■with an order emanating- from a non-commissioned officer is not an offense under this Article, but one to be charged in general under the 62d. Article. Big. J. A. Gen.. 27, par. 6. The "superior officer "lu tbe sense of tUis Article need not necessarily have been the commanding officer of the accused at the time of the offense. The Article is thus broader than Article 20, which relates only to an offense against a "commanding officer." Ibid., par. 4. Where an inferior officer was charged with having disobeyed an order given him on the spot by a superior officer, lield tJut it should be made to appear in proof that the latter, if not personally known to theTiccused to be his superior officer, -was recognizable as such by his uniform or otherwise. Ibid., par. 5. ' Ibid., par. 7. " Tlie first duty of a soldier is obedience, and without this there can beneither discipline nor efHcieiicy in an army." McCull m. McDowell, 15 Fed. Cas., 1335. " To insure efficiency an army must be to a certain e.\tent a despotism. Each officer * * * is invested with an arbitrary power over those beneath him, and tbe soldier who enlists in the army waives in some particulars his rights as a civilian, surrenders his personal liberty during the terrn of his enlistment, and consents to come and go at the will of his superior officers. He agrees to become amenable to the military courts, to be disciplined for offenses unknown to the civil law, to relinquish his riglit of trial by jury, and to receive punishments which to tlie civilian seem oui of all proportion to the magnitude of tbe offense." U. S. to. Clarke, 3 Fed. Rep., 713— Brown, ,T. "An army is not a deliberative body; it is the executive arm. lis law is ihat of obedience. No question cnn be left open as to the right to command in the officer, or the duty of obedience in the soldier. Vigor and efficiency on the part of the officer and confidence among the soldiers in one another are impaired if any question be left open as to their attitude to each other." In re Grimley, 137 U. S. , lt%. ^ J. A. General. In the Cedarquist Case it was held by the Judge- Advocate General that "there cnuld be no more dangerous principle in the government of the Army than that each soldier should determine for himself whether an order requiring a military duly to be performed is necessary or in accordance with orders, regulations, decision circulars, or custom, and may disobey the order if, in his judgment (taking, of course, all risks in case his judgment should be erroneous), it should not be necessary or should be at variance with orders, regulations, decision circulars, or custom. It is his duty to obey such order first, and if he should be aggrieved thereby he can seek redress after- wards." Ibid. THE ARTICLES OF WAR. 387 court-martial ; or to a question of civil responsibility, which will be deter- mined by an appropriate civil tribunal. In the former case " the order of a commanding officer will in general constitute a sufficient authority for acts regularly done by an inferior in compliance with the same," ' and such an order may properly be pleaded in the trial, by court-martial, of an offense growing out of such obedience to the lawful order of a proper military superior. And when so pleaded before such a tribunal it will constitute a complete defense. Where, however, the order of the superior is a palpably illegal order, the inferior cannot justify under it; ' and if brought to trial by court-martial or sued in damages for an act done by him in obedience thereto, the order will be admissible only in extenuatiou of the ofEense.' Obedience to Military Orders as a Defense in a Civil Trial. — As to the extent to which obedience to orders may be pleaded in defense to a civil action, or in a criminal trial before a civil court, the authorities are less clear. If the la w vests certain s tatutory powers in a military superior, and requi res such ord prp t" ^^- "l^pjeBd-by the m ffiction of ^ aJiLeavy penaltjjin the event of their disobedience, it WQjjld seem- thaJLihe.£b^d^ence^^o_reqi^^ by law should constitute a^^ufiicient defense in a trial, civil or criminal, grow- insr out oF"an'"^rconnected with, such obedience. Such, however, is not generally or even f req uer itlyJha,-Case.' Striking Superior Officer, etc. — The offense contemplated in the Article consists in the infliction of any bodily injury, however slight, upon the person of a military superior, such superior being a commissioned officer; or in an attempt to inflict such injury, as evidenced by the drawing or lifting up any weapon, or by any offer of violence, whatever its nature or charapter, ' Dig. J. A. Gen., 547, par. 6. , ^ ' Mi. See, on this subject, Harmony m. Mitchell, 1 Blatch., 549, and 13 Howard, 431; Duraiid ijs. Ho'llins, 4 Blatch., 451; Holmes «s. Sheridan, 1 Dillon, 357: MrCall »s, McD:)wel], Deady, 23i. and 1 Ab. II. S. R.. 212; Clay «s United States Devereux, 25 ; United States vs. Carr, 1 Wood.s, 480 ; Bates vs. Clark, 5 Otto. 304 ; Ford vs. Surget, 7 Otto, 594 ; Skeen vs. Monkhelmer, 21 Ind., 1 ; Gi-ilBn TO. Wilco.x, id., 391 ; Rises ra. State, 3 Cold., 851 ; State to. Sparks, 27 Texas, 0133 ; Keighl}' vs. Bell,' 4 Fnst. i&'Fin , 805 ; Dawkins to Rokeby, id.. 831. The law- is the same although the order to the inferior may emanate directly from the President. See Bifort to Bevins. 1 Bush, 460. ^ Ibid. See, also. State to. Sparks, ante; MrCall to. McDowell, aJiie; Milligan vs. Hovey, 3 Bisscll, 13; Beckwith vs. Bean, 8 Otto, 366. "How far the orders of a superior oflHcer are a justification to his inferior who acts on them I do not undertake to decide. With resjard to Englishmen in England questions have been raised. I believe the better opinion to be that an officer or soldier acting upon tlie orders of his superior, not being plainly illegal is justified ; but if they be plainly illegal, he is not justified." Mr. Justice Willes, in Keightley vs. Bell. 4 Fost. & Fin., 763. ^11. "Winthrop, 135. The civil responsibility is another matter. Civil courts have sometimes made allowance for the requirements of military discipline ; but if they should not, the military obligation would remain unimpaired. The soldier, in entering the service, has voluntarily submitted himself to this double and possibly conflicting liability. The evil of an undisciplined soldiery would be far sreater than the injustice (apparent rather than actual) of this principle. Opin. J. A. Gen. 388 MILITARY LAW. -^ attended by such circumstances as denote at the time an intention to inflict injury, coupled ■with a present ability to carry the intention into efEect.' I Threats operate to aggravate an. offense, of -Assafa-lt- with which they are asso- ) ci2fi3ljo£lJ21^which they form an essential part.' Mere abusive words, however, not accompanied by such acts, do not constitute an offense within the meaning of the Article; nor can an act in defense of one's self, wife, child, servant, or property, nor an act of obedience to legal process or mili- tary order/ To Justify a conviction of the capital offense of offering violence against a superior officer, it should be made to appear in evidence that the accused knew or believed that the person assaulted was in fact an officer in the Army and was his " superior " in rank.' Being in the Execution of His Office. — It is an essential element of this offe nse tliat _tfee..officer against whom the violence is_ directed should not only be superior in rank to the accused, but that he should be in the execution ofiiis~omce'*'"~Trhder a charge, therefore, of offering violence to a superior officer, in violence of this Article, it should be alleged and proved that the officer assaulted was, at the time, " in the execution of his office." ' The phrase "being in the execution of his office" is in general synonymous with " being in the perform ance of mi litary duty." and describes the status of a superior officerwTTo is engaged in the execution of the duties pertaining to his station or office in the military establishment. "While such officer is, in a majority of cases, placed upon duty, or engages in its performance, in pursuance of orders from superior authority, or by the operation of regula- tions or existing orders, he may place himself upon duty, and so fulfill the condition of " being in the execution of his office"; as where he orders an enlisted man absent without authority to return to his station, or directs a soldier under the influence of liquor to repair to his quarters, or attempts to arrest an inferior who is engaged in the commission of a crime. If the offense be in the nature of a mutiny or sedition, or a fray or disorder merely, the law places the superior on duty and at the same time prescribes > Ti-aversBS. State, 43 Ala., 536; Havs m. People, 1 Hill (N. T.), 353. 353 ; Smilh lis. State, 32 Tex., 593 ; Smith m. State, 39 ]\Iiss., 531 ; State m. Benedict, 11 Vt-, 236; State r.f. Myers, 19 Iowa, 517. To constitute an offense under the clause relaliiijr to vio- lence, it is not necessary that there be an actual baltpry or striking ; the drawing or lifting of the baud, or any weapon or instrument with which violence may be inflicted and any assault or mere offer of physical violence, are eqnally prohibited, being as injurious' to discipline as if there had been a use of force resulting in serious bodily harm. 2 Crow DS. State, 41 Tex., 468 ; Keefe «s. State, 19 Ark., 190 ; State m. Hampton 68 N. C, 13 ; People m Yslas, 27 Cal., 630. ' ^ Anderson Law Diet. ■* Dig. J. A. Gen., 27, par. 1. See, also. General Orders, No. 34, Dept. of Vireinia 1863. ' = lUd.. par. 2. Held that in charging a striking or doing of violence to a superior officer under this Article, in a case where the assault was fatal, it was allowable to add in the specification " thereby causing his death," as indicating the measure of violence employed. Ibid., par. 8. THE ABTIOLES OF WAB. 389 a rule for his guidance in the suppression of the mutiny or the restoration of order. Drawing and Lifting up any Weapon; Offering Violence. — The words used to describe the offense set forth in the second clause of the Article, " draws or lifts up any weapon, or offers any violence against him," import what is known as an " assault " at common law, which may be defined as an unlawful attempt to do injury to the person of another, coupled with the capacity or ability to inflict the injury at the instant when the violence is offered. The clause relating to the drawing or lifting up of a weapon, while evidently referring to an attempt to do violence with the weapons ordinarily used in the military service, is sufficiently comprehensive to inclade any weapon whatever with which physical injary can be inflicted. The clause respecting offers of violence is still more comprehensive and includes not only any attempt to inflict bodily injury, but also all forms of personal interfer- ence with the movements of the superior, and all attempts to constrain him, or to interfere with his freedom of motion or action. If abusive or threaten- ing language accompany any of the acts or abtempts above described, such language not only constitutes an essential part of the offense charged, but will in general be regarded as adding materially to its gravity. . Threatening and Menacing Language, When Chargeable. — While it is well settled that m erely abusive or i nsuJ4!ing.,l.anguag;e do es no t consti tute an offense within the meaning of the Article, if such lanaruage be highlv threatening ormenaciiig in_character, and be coupled with a present capacity to carrv TEe threats intojffectjjt jvjll, if accompanied' by_ acts indicative of such intention , constitute an^J'_ofler of violence," and as such will be chargeable under the Article. Abticle 22. Ant/ officer or soldier ivho begins, excites, causes, or joins in any mutiny or sedition, in any troop, battery, company, party, post, de- tachment, or guard, shall suffer death, or such'other punishment as a court- martial may direct. Prince Rupert's Code contains no description of or allusion to the specific offense of mutiny, although in the 14th Article of that Code what are called " mutinous meetings " are prohibited under severe penalties. The 13th of the Articles of James II. provides that " no man shall presume so far as to raise or cause the least mutiny or sedition in the army upon pain of death, or such other punishment as a court-martial may think fit." Although a penalty was prescribed for the offense in the Mutiny Act, mutiny is not defined in that statute; nor is a definition to be found in the British Articles of War, in which the provision respecting the offense con- tinued to appear notwithstanding its annual re-enactment in the Mutiny Act. The Article appears in substantially its present form as Article 3, Section 2, of the British Code of 1774, as Article 3, Section 3, of the Ameri- can Articles of 1776, and as No. 7 of the Articles of 1806. 390 MILITARY LAW. ' I Mutiny at military law- may therefore, be defined to be. an anlaKfjil / opposing orresi s^Tignf 1a'°^f"1 Tnilitary .authority.' wj^^jj^^gpi.iQ. su bvert t he ^/ same, or to null ify ^r neut r alize itior the tii ^ig.' It is this intent which dis- tinguisiies mutiny from other offenses, and especially from those with which, to the embarrassment of the student, it has frequently been confused, viz., those punishable by the 21st Article, as also those which, under the name of "mutinous conduct," are merely forms of violation of Article 62. The offenses made punishable by this Article are not necessarily " aggregate " or joint offenses; ' among them is the beginning or causing of a mutiny, which may be committed by a single person. In general, however, the offense here charged will be a concerted proceeding; the concert itself going far to estab- j lish the intent necessary to the legal crime.* Sedition consists in the raisin g y . /of a commotion or disturbance with a view to create a mutiny orj^ incite '' r^l revolt against military authority. To charge asaj^aj^?^ nfpAngR. nnflpr tliig ^j-tinlo g. mere aot.of insubordi- natio n or disorderly CQodact on the part of an individual soldier or officer, ' The offense is not defined in Section 5359 of tbe Revised Statutes or in the Naval Articles of War ' Compare the definition and description of the offense of mutiny or revolt, in United States vs. Smith, 1 Mason, 147; United States vs. Haines, 5 id., 376; United States vs. Kelly, 4 Wnsh., 528 ; United States vs. Thompson, 1 Sumner, 171 ; United States vs. Borden. 1 Sprague, 376. 3 Samuel, 254, 257 ; G O. 77, War Dept., 1837 ; do. 10, Dept. of the Mis:.ouri, 1863. ■* Dig. J. A. Gen., 30, par. 1. Soldiers cannot properly be charged with the offense of joining in a mutiny under this Article where their act consists in refusing, in com- bination, to comply with an unlawful order. Thus where a detachment of volunteer soldiers who, under and by virtue of Acts of Congress specially authorizing the enlist- ment of volunteers for the purpose of the suppression of the rebellion, and with the full understanding on their part and tliat of the officers by whom Ihey were mustered into the service that they were to be employed solely for this purpose, enlered into enlistments expressed in terms to bf for the war, and after doing faitliful service during the war, and just before the legal end of the war, but when it was practically terminated, and when the volunteer organizations were being mustered out iis no longer required for the prosecution of the war, were ordered to march to the plains, and to a region far distant from the theatre of the late war, and engage in fighting Indians wholly unconnected as allies or otherwise with the recent enemy, and thereupon refused together to comply with such orders, 7iHd that they were not chargeable with mutiny. V/bile by tlie strict letter of their contracts they were stibject to be employed upon any military service up to the last day of their terms of enlistment, the public acts and history of the time made it perfectly clear that this enlistment was entered info for the particular purpose and in contemplation of the particular service above indicated, and to treat the parlies as bound to another and distinct service, and liable to capital punishment if they refused to per- form it, -n-as technical, unjust, and in substance illegal. Ibid., 31, par. 3. In a rase where a brief mutiny among certain soldiers of a colored regiment was clearly provoked bv inexcusable violence on the part of their officer, the outbreak not having been premeditated, and the men having been prior thereto subordinate and well conducted, advised that a sentence of death imposed by a court-martial upon one of the alleged tnutineers should be mitigated and the otHcer himself brought to trial. Simi- larly advised in the cases of sentences of long terms of imprisonment imposed upon sundry colored soldiers who, without previous purpose of revolt, had been provoked into momentary mutinous conduct by the recklessness of their officer in firing upon them and wounding several in order to suppress certain insubordination which might apparently have been quelled by ordinary methods. Ibid., 32, par. 4. TEE ABTICLES OF WAR. 391 unaccompanied^ by the_intent above indicated, is irregular and improper.' /i^"^ Such an act shon|d,ji,.geaeEaLbe charged under Article 20, 21, or 62." Seeing by how slight means the greatest mischief may be engendered, by the rapid spread of an infections spirit in large and constantly embodied numbers, the policy of the Articles respecting mutiny Ms "to beat down and repress, in the beginning, the first act or speech that may lead or have a tendency to lead to a fatal consequence. This Article therefore makes it a capital offense in any officer, non-commissioned officer, or soldier (capable, however, of mitigation, under the circumstances of the case) who shall begin, excite, cause, or join in any mutiny or sedition; rendering him who shall lead or folloiv, in the circumstances constituting the offense, or who shall take any part in it, either in its incipient state or when it shall be complete, equally liable to the heaviest punishment." AsiiCLE 23. Any officer or soldier who, being present at any mutiny or sedition, does not use Ms utmost endeavor to suppress the same, or, having Icnowledge of any intended mutiny or sedition, does not without delay give information thereof to his commandmg officer, shall suffer death, or such other punishment as a court-martial may direct. Article 15 of the Prince Eupert Code contains the following require- ment: "No Officer or Souldier shall use any words tending to sedition, mutiny or uproar, upon pain of suffering such punishment as shall be inflicted upon him by a Court-Martial. And whoever shall hear any mutinous or seditious words spoken, and shall not with all possible speed reveal the same to his superior Officers or Commanders, shall be punished as a Court-martial shall think fit." This is repeated in substance as Article 14 of the King James Code of 1672, and was embodied in subsequent codes until that of 1774, in which it appears, in about its ppesent form, as Article 4, Section 2. It was embodied as Article 4, Section 2, in the American Articles of 1776, and as No. 8 of the Articles of 1806. Duty of Suppression. — This provision, extending the policy set forth in the preceding Article, makes it a military cfiensejor any officerjorjuon-com- jjA<- missione d officer to sten d_b^jvhiist any mutiny or s edition is in the act of / being committed andnot use hi_s utmost endeavor to suppress it.* The duty ' Dig. J. A. GeuTTsi, par. 1. See also, G. O. 7, War Dept., 1848; do. 115, Dept. of WashiiigtoD, 1865; G. C M. O. 73, Dept. of tbe Missouri, 1873; United States vs. Smith, 1 Mason, 147; United States ««. Kelly, 4 Wasb., 538; United States m. Thompson, 1 Sumner, 171. ' Dig. J. A. Gen., 30, par. 1. Where a body of soldiers, under the reasonable but erroneous belief that their legal term of service had fully expired, quietly stacked their arms and refused to fall in and march when ordered to do so by their commanding offi- cer, and having been brought to trial on a charge of mutiny, were found by the court not guilty ol that charge but guilty only of 'conduct to the prejudice of good order and military discipline," and were moderately sentenced, advised that this was, on the whole, a wise judgment, and would properly be approved by the reviewing authority. Ibid., 31, par. 2. ' Articles 32. 33, and 24. * Samuel, 258. 392 MILITARY LAW. or suppression, in any case, is measured by the rank and authority of the several military persons in whose presence acts of mutiny or sedition are taking place, and each person, within the scope of his authority and office, is obliged, by the terms of the Article, to use his utmost endeavor to suppress the same. Failure to Give Information ; Misprision. — The last clause of the Article, requiring disclosure of any intended mutiny or sedition, creates an offense of negative misprision on the part of any military person who, having knowl- edge of any intended mutiny or sedition, does not without delay give infor- mation thereof to his commanding officer. What constitutes the " utmost endeavor," and what degree of diligence in giving information of the exist- ence of an intended mutiny, are circumstances to be determined by the court from the evidence submitted in a particular case. It is not, " in such cases, the question what might be achieved by an effort of some fortunate and happy genius, but what must be done and what all must know, and be taken to be competent to do, by the exertion of the common power of an ordinary mind, in the plain path of its duty, under those direct and honest impressions of which none can be supposed insensible." ' There is and must be, in these cases, a discretion vested in the court; and as the safety of every member of the court, as well as of the accused, must consist in the due exercise of it, there cannot be any unreasonable fear that it will at any time be abused." Use of Force in the Suppression of Mutiny. — Mutiny has been seen to consist in a revolt against, or in forcible resistance or opposition to, consti- tuted military authority. By the express terms of the 33d Article it is made the duty of every officer or soldier who is " present at any mutiny or sedition to use his utmost endeavor to suppress the same." The duty of suppression so imposed is instant and immediate, and will require the officer upon whom it devolves to oppose force with force in the suppression of the mutiny and the restoration of order. The force contemplated in the Article, however, is not that due to a personal exercise of physical strength on the part of the officer. The force to be employed should in general consist of members of the guard, or of inferior officers or enlisted men, summoned by the superior and acting under his orders ; for in no other way can he assure himself that the precise amount of force — and no more — is being employed to accomplish the purpose. Amount of Force. — The Jorce_tcube-.enipl«yed^in.qu£llirig_an_affray or I maintaining the peace is such only, in kind or amount, as is necessary to J restore order and_to secure and subdue the_ ofien3ers7^t does not consist in ~y repeated blows inflicted by way of punishment for past deeds, but must be preventive in character, and must not exceed the strict necessity of the case > Samuel, 261. « Ibid., 360. THE ARTICLES OF WAR. 393 requiring such acts'of prevention. No officer has authority, in any case, to inflict punishment for past acts or offenses of any kind. Nor can an officer so situated make use of personal violence toward an inferior officer or soldier, save in a case of imperious and urgent necessity which will not admit_ of delay — as in self-defense or to prevent the commission of a crime — or where the proper assistance in the way of armed force is not available or cannot be relied upon, and the occasion is one demanding instant action on the part of the officer responsible for the restoration of order and the maintenance of discipline." Abiicle 24. All officers, of what condition soever, have power to part and quell all quarrels, frays, and disorders, whether among persons belong- ing to his own or to another corps, regiment, troop, lattery, or company, and to order officers into arrest, and non-commissioned officers and soldiers into confinement, who take part in the same, until their proper superior officer is acquainted thereioith. And whosoever, being so ordered, refuses to obey such officer or non-commissioned officer, or draivs a weapon upon him, shall be punished as a court-martial may direct. This requirement, in the earlier British codes, appears in connection with the provisions respecting duels and the sending of challenges. Quarrels, frays, disorders, and the like are acts in themselves highly obnox- ious to discipline, but less serious as military offenses than mutiny or sedi- tion. In its present form the provision appears as Article 4, Section 7, of the British Code of 1774, as Article 4, Section 7, of the American Articles of 1776, and as No. 37 of the Articles of 1806 ; it appears first in connec- tion with the provisions respecting mutiny in the Articles of 1874. The first clause of the present Article is a modification of the statutory rule of interpretation in respect to- the meaning of the word "officer," as used in the Articles of War, which is contained in Section 1342 of the Kevised Statutes. The term " officer," as used in this Article, being coupled with the words "of what condition soever" is held to include within its scope all classes of officers, commissioned and non-commissioned, each of whom is required to take appropriate action in a case of disturbance or disorder such as is contemplated in the last clause of the Article." ' See General Orders No. 53, A. G. O., of 1852: G. 0. Nos. 3, 4, and 68, ibid.,oi 1853. " It. is a direct violation of law and duty for an officer to striEe or offer other vio- lence to the person of a soldier except when absolutely necessary to quell mutinous con- duct." G. O. 68, A. G. O., 1853. "The only case in which personal violence can be justified is that where exireme necessity requires it, in self-defense, to prevent instant and immediate danger." G. O. 2, A. G. O., 1853. 2 It is a principle of the common law that any bystander may and should arrest an affrayer. 1 Hawkins P. C, c. 63. a. 11; Timothy vs. Simpson, 1 C. M & R. 763, 765; Philips vs. Trull, 11 Johns., 487. And that an officer or soldier, by entering the military service, does not cease to be a citizen, and as, a citizen is authorized and bound to put a stop to a breach of the peace committed in his presence, has been specifically held by the authorities. Burdett m. Abbott, 4 Taunt., 449; Bowyer, Com. on Const. L. of Eng., 499; Simmons, §§ 1096-1100. This Article is thus an application of an 394 MILITAR T LA W. As military discipline consists in the quiet and orderly performance of military duties, all departures from such quiet performance, whether in the nature of strife or disorder, are equally obnoxious to good discipline as tend- ing to disturb the orderly conduct of a march, or to interrupt the peace and quiet of the camp or garrison. The 24th Article relates to disturbances or other infractions of good order less serious in importance than sedition or mutiny, and net only requires, but in express terms empowers, certain classes of officers to quell or put an end to the same, and to command such assist- ance as may be necessary to accomplish that purpose. The duty required in the Article comes into being upon the occurrence of the disorder, or upon the receipt of knowledge of its existence, and ceases to exist only when the disturbance has ceased to exist or the proper superior officer has been *' acquainted therewith." An officer or non-commissioned officer who has undertaken the execution of the duty defined in the statute should, after such notification, if .inferior in rank to the commanding officer, forthwith place himself under his orders pending the suppressioa of the existing disorder." Article 25. No officer or soldier shall use any reproachful or provolcing speeches or gestures to another. Any officer who so offends shall be put in arrest. A ny soldier who so offends shall be confined, and required to ask pardon of the party offended in the presence of his commanding officer. Abticle 26. No officer or soldier shall send a challenge to another officer or soldier to fight a duel, or accept a challenge so sent. Any officer wJio so offends shall be dismissed from the service. Any soldier who so offends shall suffer such corporal punishment as a court-martial may direct. Abticle 27. Any officer or non-commissioned officer commanding a guard ivho knowingly and willingly suffers any person to go forth to fight a duel shall be punished as a challenger; and all seconds or promoters of duels, and carriers of challenges to fight duels, shall be deemed principals, and punished accordingly. It shall be the duty of any officer commanding established common-law doctrine to the relations of the military service. See its application illustrated in the following General Orders : Q. O. 4, War Dept., 1843; do. 63, Dept. of the Tennessee, 1863; do. 104, Dept of the Missouri, 1863; do. 52, Dept. of the South, 1871; do. 92, id., 1873. Dig. J. A. Gen., 33, note 3. 'It is a significant fact, serving to bring prominently into view the essential differ- once between military and civil jurisprudence, that the words used to define the offenses created by this Article are either not known to the common law or are but partially inter- jireted in that system of jurisprudence. To constitute a quarrel, actual violence is not 1 ' ecessary, and the act may consist in mere abusive, violent, of angry words participated in by two or more persons. If actual violence be used, the offense becomes an affray, which iii:iy be defined as " the fighting of two or more persons in some public place, to the ter- ror of the public." It is essential to the offense of participating in an affray that the fighting should be without premeditation; if there be such premeditation or concerted action, the offense partakes of the character of a riot. Disorder is an offense peculiarly obnoxious to military discipline, and may consist in an actual disturbance or interrup- tion of discipline, or in conduct calculated to disturb the quiet and orderly performance of military duty in a camp or garrison. THE ARTICLES OF WAR. 395 Dig-. J. A. Gen., 33. ' In the British service this Article has been construed in connection with the 23d Article, wliich confers upon " all officers, of what condition soever," power to part and quell quarrels, frays, and disorders. The Article proceeds upon the theory that the speeches and gestures to which it relati-s are open and notorious, and, as such, calling for immediate interference. Anv military officer standing by, as well as the person offended, would be aiithorized to make the arrest, for such power Is given to officers of every description to quell all quarrels and frays ; and as the speeches and gestures in question are recorded by this Arllcle as liaving !i tendency to those consequences and are therefore interdicted, they appear to authorize the same interference. Samuel, 351. ' Compare Samuel, 383. < Compare the definition in 2 Wharton Cr. L., g§ 3674-3679. THE ARTICLES OF WAR. 397 doubtful upon ita face, may be illustrated in evidence by proof of the cir- cumstances under which it was sent, and especially of the previous relations of the parties, the contents of other communications between them on the same subject, etc' And technical words in an alleged challenge may be explained by a reference to the so-called duelling code." Challenges, How Determined. — It is for the court to determine whether the communication set forth in the charges and established in evidence con- stitutes a challenge within the meaning of the Article. " No general description can be laid down of the precise words which amount to a chal- lenge; for there is no particular phraseology, no set form, necessary to it or by which it can be known. Whether there be an actual summons to the field either through the principal or second, or such a defiance thrown out as shall appear a direct invitation to it, though it cast the burden of acting in all the incidents leading up to the combat on the other party, it may equally be held in the nature and degree of a challenge." "It is not requisite that there should be a formal invitation to fight; but a mere hint or suggestion that one of the parties is prepared for it has been held by a court-martial to be tantamount to a challenge. In this view it is as much an offense to use words or insinuations that indicate a disposition to fight, and which may act as a provocative and defiance to another to meet such dis- position, as if the most unequivocal challenge had been given." ' As the offense is in its nature a private one, there cannot be expected in many instances any abundant evidence of it. The court will therefore have to govern itself not so much by the quantity as by the quality of the proof." Permitting Persons to Go Forth to Fight Duels. — The first clause of the 37th Article makes it a military offense for "an officer or non-commissioned oflicer commanding a guard knowingly and willingly " to suffer any person to go forth to fight a duel. Tlie gravity of the offense so created is meas- ured by the penalty which is required to be imposed upon conviction, which is declared to be the same as that involved in the offense of being a chal- lenger. The essence of the offense is the non-exertion of a present power to prevent a known unlawful purpose. As it is the knowledge of the intention of the parties going forth, and the non-resistance of it, which makes the crime, the existence of such knowledge must be clearly evidenced before the ' On the general subject of cballenges, and the question wliat constitutes a challensre, see the principal cases of the sendinar of challensres in oui- service as pnblislicd in G. O. 64, A. G. O., 1837; do. 39, 41, id., 1835; do. 3, War Dept., 1858; do. 380. id., 1863; do. 11, Army of the Potomac, 1861; do. 46, Dept. of the Gulf, 1863; do. 333, Dept. of the Missouri, 1864; do. 130, «., 1872; do. 3:!, Dept. and Army of the Tennessee, 1864. And compare Commonwealth vs. Levy. 3 Wheeler Cr. C, 345; do. m. Tibbs, 1 Dana, 524 ; do. vs. Hart, 6 J. J. Marsh., 119 ; State vs. Taylor. 1 So. Ca., 108 ; do. vs. Strickland, 2 Nott & McCord, 181; Ivey vs. Slate, 12 Ala., 277; Aulger vs. People, 34 Ills., 486, 3 Bishop Cr. L., § 314 ; Samuel, 384-387. « Dig. J. A. Gen., 33; State vs. Gibbons, 1 South, 51. s Samuel, 384. « Ibid., 385. 398 JIILJTARI LAW. coart-martial before a conviction can be had. ' The somewhat comprehen- sive language used in the clause requiring the commander of a guard to prevent " any person " from going forth to fight a duel has never received executive interpretation, but has always been construed to apply to military persons only; the movements of civil persons not being subject to military regulation or control. The second clause of the 27th Article makes " all seconds or promoters of duels, and carriers of challenges to fight duels," principals, and imposes upon the several offenses thus described the character of principal offenses, and requires the same penalty to be imposed in the event of conviction. By seconds are intended those who accompany the principals, on one side or the other, to the ground on which the duel is to be fought, regulating the terms of it, prescribing the course of proceeding, and seeing that they are strictly observed on both sides. They are commonly denominated, sometimes with no visible discrimination, the friends of the respective parties." It may not be so easy to assign a precise meaning to the term " promoters," who are included in the same line with seconds and carriers of challenges. Such terms, it is presumed, applies to parties who, whether concerned or not in the matter of dispute, take any share in urging or provoking those impli- cated in it to send to one or the other a defiance to the field.' Duty of Commanding Officers. — The last clause of the 37th Article makes it the duty of "any officer commanding an army, regiment, troop, battery, company, post, or detachment who knows or has reason to believe that a challenge has been given or accepted by any officer or enlisted man under his command immediately to arrest the offender and bring him to trial." This clause is directory in character and imposes a special, responsibility upon the commanding officers of the several units of organization above named in the matter of preventing hostile meetings, and of bringing the parties to them to a speedy trial. This clause also, when taken in connec-' tion with the 28th Article, clearly defines the policy of the Grovernment in respect to the practice of duelling, confers upon the measures of prevention already described an additional sanction, and removes any doubt that may have arisen in the mind of a military commander as to his duty in the case. Abticle 29. Any officer ivho tJiinhs himself wronged iy the commanding officer of Ms regiment, and, upon due application to such commander^ is refused redress, may complain to the general commanding in the State or Territory where such regiment is stationed. The general shall examine into said complaint and tahe proper measures for redressing the wrong complained of ; and he shall as soon as possible transmit to the Department of War a true statement of such complaint, with the proceedings had thereon. 1 Samuel, 888. , ^ Ibid., Z^O. 'IMd.ZU. THE ARTICLES OF WAB. 399 This provision can be traced through the King James Articles of 1673 to Article 68 of the Prince Eupert Code, which contains the reqairement that "if any Inferiour Officer, either of horse or foot, be wronged by his Officer, he may complain to his Colonel, or other Superiour Officer of the Kegiment, who is to redress the same, upon due proof made of the wrong done him ; but if he fail therein, the party grieved is to apply to the General officer for redress; and if the accusation be false, the complain- ant is to be punished at the discretion of a Court-Martial." In the British Articles of 1774, from which our own Articles were adopted, this provision appears as Article 1 of Section 13. The last clause, however, requiring the complainant to be punished by a court-martial in the event of his accusa- tion being found to be false, is omitted. To insure a full hearing in appeal, the British Articles of 1774 permit the complainant, if redress be denied him by his regimental commander, to appeal to the general commanding-in-chief, " who is hereby required to examiue into the said complaint; and, either by himself, or by Our Secretary at War, to make his report to Us thereupon, in order to receive Our further Directions." As there was no executive head to the Government under the Continental Congress, nor to that under the Articles of Confederation, the appeal above described was to be taken to the general commanding-in-chief the forces of the United States, who was " required to examine into the said complaint and, either by himself or the Board of War, to make report to Congress thereupon, in order to receive further directions." ' The right of appeal thus created by the British Code and recognized by the American Articles of 1776 was considerably restricted in the Articles of 1806, since it was required to be submitted, not to the general commanding the Army, but " to the general commanding in the State or Territory where the regiment of the complainant was stationed." '' ' It will be observed that this Article does not in terms require the general com- manding-iii-chief to take steps to redress the wrong. For that reason the requirement was repealed by a Resolution of Congress of April 14, 1777, and replaced by a new Article requiring the commanding general to "take measures to redress the wrong "and report the case to Congress. ' It is proper to remark, in this coniiecfiou, that if, as between persons subject to military discipline, that is, "between comrades, actions of nssault or battery bad been encouraged by the common law, such cases might have been abundant, and if actions for torts, as false inmrisonment, slander, libel, had been entertained, the discipline of the Army would long since have been destroyed. From the earliest period, therefore, the Articles of "War have provided that all these offenses should be referred to and decided by the officers in superior command, an ultimate appeal being given to the sovereign, as the head of the military profession ; and unless the Army is to degenerate in its chaiacler, that rule must, on the grounds of public policy, be strictly adhered to. To take the Arm}' out of the control of the crown, by giving jurisdiction to the common-law tribunals for the redre-ss of professional grievances, would, in the opinion of the judges themselves, "be in the highest degree inexpedi'^nt, and hence these courts have uniformly, and espe- cially in recent instances, declined to entertain such complaints." II. Clode, Mil. Forces, 150 ; Keightley m. Bell, 4 Fos. & Fin., 798; Dawkins to. Rokeby, ibid., 833; Freer vs. Marshall, itrid., 485. See, also, Wilkes vs. Dinsman. 7 How., 89; Smith vs. Whitney, 116 U. S., 167 ; Wales vs. Whitney, 114 U. S., 564. 4:00 MILITARY LAW. In this form it was re-enacted in the Articles of 1874. The procedure under the Article has already been explained.' Article 30. Any soldier who thinks himself wronged by any officer may complain to the commanding officer of his regiment, who shall summon a regimental court-martial for the doing of justice to the complainatit. Either party may appeal from such regimental court-martial to a general court- martial ; hut if upon such second hearing, the appeal appears to le gro'xnd- less and vexatious, the party appealing shall be punished at the discretion of said general court-martial. A right similar in its scope and operation to that provided by this Article for the redress of wrongs in behalf of enlisted men may be traced to Article 62 of the Prince Rupert Code, which provided that " all' con- troversies, either between Souldiers and their Captains or other Officers, or between Soaldiers and Souldiers, relating to their military capacities, shall be summarily heard and determined at the next court-martial of the regi- ment." Article 69 of the same code contains the requirenient that " if a Souldier shall be wronged, and shall not appeal to the Court, but take his own satisfaction for it, he shall be punished by the Judgment of a Court- Martial." Article 2, Section 12, of the British Code of 1774 restricts the Article in its operation to the case of an " inferior officer or soldier who shall think himself wronged by his Captain, or other Officer commanding the Troop or Compauy to which he belongs," andin this form the provision was embodied in the American Articles of 1776. In the Articles of 1806 the scope of the remedial provision of the Article was extended to a wrong done to an inferior officer or soldier by his captain or any other officer. The corresponding Article of 1874, by the omission of the words " his captain " from the Article of 1806, extends the remedy to a wrong done to an enlisted man by any commissioned officer of the Army. The successive modifications in verbiage which the Article has undergone have not operated, however, to extend its scope in respect to the character of wrongs to which it is intended to provide a remedy; the wrongs properly subject to redress thereunder being those of a fiscal or administrative character, and not such as are breaches of discipline which are remediable only by a trial before an appropriate military tribunal.' This Article is not inconsistent with Article 83, which prohibits regi- mental courts from trying commissioned officers. It does not contemplate or provide for a trial of an officer as an accused, but simply an investigation and adjustment of some matter in dispute — -as, for example, a question of accountability for public property, of right to pay or to an allowance, of relief from a stoppage, etc. The regimental court does not really act as a court, but as a board, and the " appeal " authorized is practically from one See the chapter entitled The Redkess of Wbongs. \ THE ABTICLES OF WAR. ■ 401 board to another. But though the regimental court has no power to find " guilty " or " not guilty," or to sentence, it should come to some definite opinion or conclusion — one sufficiently specific to allow of its being intelli- gently reviewed by the general court if desired.' There are two manifest and unqualified limitations to the province of the regimental court under this Article, viz. : 1. It cannot usurp the place of a court of inquiry; 2. It can take no cognizance of matters which it would be beyond the power of the regimental commander to redress. "When the matter is beyond the reach of this commander it is beyond the jurisdiction of this court. If it involve a question of irregular details, excessive work or duty, wrongful stoppages of pay, or the like, a regimental court under this Article may be resorted to for the correction of the wrong. Otherwise when the case is one of a wrong such as can be righted only by the punishment of the of&cer." Abticle 31. Any officer or soldier wJio lies out of Ms quarters, garrison, or camp witliout leave from his superior officer shall be punished as a court- martial may direct. Article 29 of the Prince Eupert Code contained the requirement that *' no officer shall lye out all night from the Camp or Garrison, without his Superior Officers leave obtained for the same, upon pain of being punished for it as a Court-Martial shall think fit." The provision appears in substan- tially its present form, applying to enlisted men as well as to commissioned officers, as Article 2, Section 14, of the British Codes of 1765 and 1774, as Article 2, Section 13, of the American Articles of 1776, and as Jfo. 42 of the Articles of 1806. This Article, although it creates a military ofEense, is in its nature rather .a police regulation than a criminal statute, and is calculated to secure the constant presence and readiness for duty of the officers and enlisted men composing a military command. Although prosecutions under this Article are infrequent, the necessity of its existence is evidenced by the fact that it ' Diar. J. A. Gen., 35, par. 1. * Ibid.. 36, par 6. The "regimental court-martial" under tlie 30th Article ofWar cannot be nsed as a snbstitnte for a general court-raartial or court of inquiry, for it can- not try an officer nor make an investigation for the purpose of determining whether he shnll be bronglit to trial. When, if the soldier's complaint should be sustained, the only redress would be a reprimand to the officer, the matter would not be within the .iuris- diclion of this court. It can only investigate such matters as are susceptible of redress by the doing of justice to the complainant; that is, when in some way he cm be set right by putting a stop to the wronsrful condition which the officer has caused to exist. Erro- neous stoppages of pay, irregularity of detail, the apparent requirement of more labor than from other soldiers, and the like, might in this way be investigated and the wrong- ful condition put an end to. The court will in such cases record the evidence and Its conclusions of fact, and recommend the action to be taken. The members of the court {and the judie-advocate) will be sworn faithfully to perform their duties as members (and judsre-advocate) of the court, and the proceedings will be recorded, as nearly as practi- cable, in the same manner as the proceedings of ordinary courts-martial. Manual for Courts-martial, p. 89, note. 4:02 MILITARY LAW. is to be fonnd in almost every military code, ancient and modern." It appears as the first clause of Article 29 of the Prince Eupert Code, as Article 2, Section 14, of the British Code ot 1774, as Article 2, Section 13, of the American Articles of 1776, and as No. 43 of the Articles of 1806. Abticle 32. Ant/ soldier who absents himself from his troop, battery, company, or detachment without leave from his commanding officer shall he punished as a court-martial may direct." This requirement does not appear as such in the Prince Eupert Code, although certain forms of unauthorized absence, especially when committed by commissioned ofiB.cers, are there made punishable. The provision appears- as Article 2, Section 6, of the British Codes of 1765 and 1774, as Article 2, Section 6, of the American Articles of 1776, and as No. 21 of the Articles of 1806. In the codes prior to that of 1874 the absence contemplated -in the Article was to be from the troop or company of the soldier, or " from any detachment with which he may be commanded"; this clause was omitted from the revision of the Articles in 1874. The o ffense of unauthorized^ absence- here-defined closely resembles in its essential i ncidents the more serious offense_of_ desert ion, from which it differson]x.in_X6spfict.tQjJie jxitent; an intent not to return giving to an nnauthorized absence the -charact er of deserti on. wTTiTA" tb^ abgAnp.B'nf pppVi an intent sufiBces to red uce a charge of desertion to the minor included offense of absence without leave." The absence of an enlisted man from his troop, battery, company, or detachment, no matter what the cause or dura- tion of such absence, without the leave of his commanding oificer is, and is declared by this Article to be, a punishable offense. To constitute the offense of absence without leave, however, no specific intent is necessary, the essential incidents of the offense being set forth in the statute which creates it. Nothing can Justify the absence of a soldier from the place assigned him but the leave or command of his commanding officer specifically or generally given, and which the accused in all cases will be bounden to prove. But circumstances not amounting to a complete justification may in many instances palliate the absence of the party. It has been seen that an absence, though originally authorized, may, if unduly prolonged, acquire the char- acter of an unanbhorized absence; yet the absentee will be at liberty to account, by probable circumstances, for the excess of his stay beyond the term allowed him ; as, for example, that it was caused by involuntary deten- tion from some uncontrollable power, or by inability through sickness, veri- fied or not, as the case may be, by a proper medical certificate, or by an extension of the furlough by competent military authority, or to detention at the hands of the civil authority.' ' Samuel, 544. ' Dig. J. A. Gen., 345, par. 18.- ' Samuel, 338. THE ARTICLES OF WAB. 403 T he ofiense of absence -vrithoat leave may be committed by a comm is- sioned officer as well as by an enlisted man; in the former c ase, however, it is chargea ble under the 6iid Article of War. "Absence without leave may also consist in an act of omission as well as in one of commission. Where an officer detailed to command an escort of prisoners and to deliver them at a certain place neglected, upon this service being performed, to return with reasonable diligence to his proper station, held that he was chargeable with absence without leave, it being the duty of an officer to return promptly from such a service without further orders.' An unauthorized absence from quarters only, unaccompanied with absence from the post or company, is not a technical, absence without leave in violation of this Article, but an offense under Article 63." IfjOnreturning to his sta tion after an unauthorized absence, an officer or soldier is place d upon or~a llowed t o perfo rm full duty by his pr oper commander, such acti on, by the custom of_the service, -operates in general as a waiver of JtiaJ5liaig£.£L.absence_witiQ]g.l_ leave, andjnay^^^rdinarily be i pleaded as a good.d^fiflsaiii~the.e.ven.t-of a trial.' Stoppages, etc. — An enlisted man who has absented himself from his post or company without authority is subjected to the forfeiture of pay and allow- ances prescribed by the Army Eegulations* although not brought to trial for his absence as an offense. T he forfeiture is a stoppage by operati on ozli/ law irrespect ive of any punishment that may be imposed, and whe ther any / b e imposed or not. Thu s a soldier acquitted under a charge of'desertion is acquitted of the absence without leave involved in ttie_c harfre. and cannot be pumshed therefor; but if he has been absent withou t leave in fact, h e . in curs the forfeiture specified, in t.bp. reornlation. And a soldier brought to trial for, and convicted of, an absence without leave is subject to the for- feiture, though none be adjudged in the sentence. Otherwise, however, if the findings be disapproved as not sustained by the testimony.' Making Good Time Lost. — Although, for the rea son above stated, an en listed m an forfeits all pay which accrues during his absence^wTEEourieave, the obligation to make good the tiniel ost~is not a~statutory~ODsequence of the offense., -as is the -caae-in -desertion.' An absentee without leave, there- ' Dig J. A. Gen., 140, par. 1. See, as to the general rule on this subject, G. O. 83, Hdqrs, of Army, 1866 ; also par. 54, A. R. of 1895. ^ Ibid.. 36. ' Ibid., 140, par. 3. * Paragraph 133, Army Regulations of 1895. 'Dig. J. A. Gen., 140, par, 3, But Ihe stoppages incurred under paragraphs 136 and 137, A. R. of 1895, are enforced only upon a conviction by court-martial. The forfeiture specified in par. 133, A, R. of 1895, should not be enforced for absences of less than one day, but the soldier should be left to be punished by sentence of summary court. Thus where the unauthorized absence was for but seven and a half hours, a forfeiture of a day's pay would deprive the soldier of pay for sixteen and a half hours which he had actually earned. Held, therefore, that a stoppage of one day's pay in such a case was not warranted. Dig. J. A. Gen., 141, par. 4. • Ibid., 43, par. 8. 404: MILITARY LAW. fore, though not entitled to pay during his unauthorized a bsence, will only be requi red to m ake good the time .lost'upon conviction of the offense "Beiore a'court-martial 9^ competent j urisdiction. " Absence without Leave on the Part of Commissioned Officers. — It will be observed that the operation of the Article is restricted, by its express terms, to cases of unauthorized absence on the part of enlisted men. It is none the less an offense against discipline for a commissioned of&cer to absent himself without the specific or general permission of his commanding officer. An offense of unauthorized absence committed by a commissioned officer would be chargeable under the 62d Article of War, and, in addition to the punishment imposed for such absence by sentence of the court-martial, aa ofiicer so offending would, by the operation of law, be required to " forfeit all pay during such absence unless the absence be excused as unavoidable." " Abticle 33. Any officer or soldier who fails, except when prevented ly sickness or other necessity, to repair at the fixed time to the place of parade, exercise, or other rendezvous appointed hy his commanding officer, or goes from the same, without leave from his commanding officer, before he is dis- missed or relieved, shall be punished as a court-martial may direct.' This provision appears as Article 4, Section 14, of the British Code of 1774, as Article 4, Section 13, of the American Articles of 1776, and as No. 44 of the Articles of 1806. Absence from guard without leave in time of war was reckoned among the number of capital offenses in the war statutes of Henry V. In the statutes of Henry VIII. the offense is treated with some abatement of the rigor of the preceding ordinance, though seem- ingly with severity, the offender's body being thereby made liable "to be imprisoned, and his person and goods to stand at the king's pleasure." ' The corresponding provision of the Prince Rupert Code, from which the Article in its present form is derived, contains the requirement that " when warning is given for setting the watch, by beat of drum or the sound of the trumpet or fife, if any Souldier shall absent himself without reasonable cause, he shall be punished by riding a wooden horse, or otherwise, at the discretion of the Commander. And whatever Souldier shall fail, at the beating of a drum, or the sound of a trumpet or fife, or upon an alarm given, to repair to his Colours, with his arms decently kept and well fix'd (unless there be an evident necessity to hinder him from the same), he shall either be clap'd in Irons for it, or suffer such other punishment as a Court-Martial shall think fit.'" Nature of the Oflfense. — This Article, although it sets forth a distinct military offense which may be committed by any officer or enlisted man who fails to conform to its terms, has especial application to the case of a com- mand which is provided with shelter, generally in time of war, by quartering ' Paragrixph 133, Army Kegulations of 1895. ' Section 1265, Revised Statutes. ^ Samuel, 548. * See page 572, post. TBE ARTICLES OF WAR. 405 its members upon the inhabitants of a city or town. As the troops consti- tuting a company are or may be billeted in several houses or buildings situated at some little distance apart, a place of rendezvous is appointed, and the members of the company are notified of the location of the same at the time of the assignment or billeting. At all formations the members of the command are required, in obedience to such notification, to appear at the place of rendezvous thus indicated, and a failure so to appear after due notification will constitute an offense under the Article. As the troops of a command which has been billeted in the manner above described are not under the same close observation and control as when collected in camps or barracks, it is also an offense within the mean- ing of the Article for an officer or enlisted man, having appeared at the appointed rendezvous, to leave it without leave from his commanding officer. ^,. Akticle 34. Any soldier who is found one mile from camp withou t \/^^ l eave in w riting fr om his commanding officer shall ie punished as a court- j martial may direct. ' This has been an express military regulation since the time of Charles I., but was formerly enforced with a much heavier punishment than at present ; namely, with death.' The provision can be traced from Article 19 of the Prince Eupert Code through Article 1, Section 14, of the British Code of 1774, and Article 1, Section 13, of the American Articles of 1776, to No. 43 of the Articles of 1806, which was re-enacted without change in the Articles of 1874. Under the peculiar conditions of administration, supply, and dis- cipline which have always prevailed in the English military service, one mile has come into use as a convenient space within the circumference of which about a camp are usually to be found all the necessaries with which a soldier may have to supply himself. On some occasions within the last-mentioned reign the distance was narrowed to half a mile.' But though this is the prescribed limit beyond which soldiers cannot pass without special permis- sion, it does not follow -that they may not be guilty of a military offense in being found at a less distance from the camp than the point described in the Article; since it is clear that no one has a right at any time to leave his place, or the ordinarily fixed bounds, without leave from his oflScer. j^ut e\en. loajrp. fmm f]j] nf ficer will not be suffic ient to save the party from the peril of This Article, unless it be in writ ing." -— —- Article 35. Any soldier ivho fails to retire to his quarters or tent at the Mating of retreat shall he punished according to the nature of his offense. This Article, which, like the 31st, partakes of the character of a police regulation, appears as Article 3, Section 14, of the British Code of 1774, as Article 7, Section 13, of the American Articles of 1776, and as ISTo. 35 of the Articles of 1806. It is its purpose to secure the regular and orderly 1 Samuel, 543. ■" Ibid., 543. 406 MILITARY LAW. return of enlisted men to the posts or places which they are to occupy for the night, with a view of keeping the forces together and in a constant state of readiness to act upon an occasion of emergency.' Aeticle 36. No soldier belonging to any regiment, troop, lattery, or company shall hire another to do his duty for him, or be excused from duty, except in cases of sickness, disability, or leave of absence. Every such soldier found guilty of hiring his duty, and the person so hired to do another's duty, shall be punished as a court-martial may direct. Abticie 37. Every non-commissioned officer who connives at such hiring of duty shall be reduced. Every officer who knows and allows such practices shall be punished as a court-martial may direct. That the evil for which the above Articles were intended to provide a remedy did not exist in the last half of the seventeenth century is evidenced by the fact that Article 50 of the Prince Eupert Code expressly permits the duty of one soldier to be performed by another in " case of sick- ness and disability or other necessary cause," in which event the captain is authorized to " dispense with his absence without causing him to find another to serve in his stead." This requirement was repeated in the Articles issued by King James in 1672. The Articles above cited appear in their present form as Articles 7 and 8, Section 14, of the British Code of 1774, as Articles 7 and 8, Section 13, of the American Articles of 1776, and as Nos. 47 and 48 of the Articles of 1806. They were adopted originally with a view to put an end to a practice which prevailed in commands stationed in the vicinity of the city of London of permitting soldiers to engage themselves as laborers on the Thames or in the yards or wharves on its banks. The practice seems to have been approved by the commanding of&cers of the troops, who received a percent- age of the absentee's pay for services rendered. The abuse finally became so flagrant, and so injurious to discipline, as to cause the provisions above cited to be incorporated in the Articles of War.' The Articles define an offense of hiring duty, which may be committed by the enlisted men who are parties to the contract of hiring or who connive at its execution. Its subject-matter being prohibited by law, the contract itself is without obligatory force, and cannot, for that reason, be made the subject of an action at law. The clause of the statute forbidding enlisted men to be excused from duty " except in cases of sickness, disability, or leave of absence " is directory in character, and applies to the officers who, from the nature of their office or employment, are authorized by law, regu- lations, or existing orders to excuse enlisted men from the performance of military duty. Article 38. Any officer who is found drunk on Ms guard, party, or other duty shall be dismissed from the service. Any soldier who so offends 1 Samuel, 545. ' Ibid., 549. THE ABTIGLE8 OF WAB. 407 shall suffer such punishment as a court-martial may direct. No court- martial shall sentence any soldier to be branded, marked, or tattooed. This appears as Article 5, Section 14, of the British Code of 1774, as Article 5, Section 13, of the American Articles of 1776, and as No. 45 of the Articles of 1806. The Articles of 1774, 1776, and 1806 contained a provi- sion that the sentence imposed upon an enlisted man for the offense of drunkenness on duty should consist of " corporal " punishment. Although the most usual form of corporal punishment, that of flogging, had been abolished by the Act of August 5, 1861,' the word " corporal " appeared in the revision of the Articles in 1874, and was held to apply to any form of punishment authorized by custom of service which involved personal restraint, hardship, or inconvenience, as distinguished from a merely pecuniary penalty, in the nature of a fine or forfeiture of pay. By subse- quent enactments," however, the word "corporal" was stricken from the ■Article, and a new and additional restriction imposed in the form of a requirement that "no court-martial shall sentence any soldier to be branded, marked, or tattooed/^ "" "'"" Meaning of Term Duty. — The .penalt ies dgclajsd by the Article attach not to drunkenness per se, but as it may be connected with the discharge of some im portant duty7fiorTKe^"nire^cntioh of which it is supposed to render the party affected by TT not only unfit but a dangerous' instrument to all around him.' "In the American Articles of 1776, and in the British Code from which they were derived, the offense consisted in being found drunk on " a guard, party, or other duty under arms.'''' Although the words " under arms " were omitted from the revision of the Articles in 1806, no change was made by courts-martial in their application of the statute to cases referred to them for trial until 1853, when, in the case of a commissioned officer tried for a violation of this Article and found " not guilty," but " guilty of being drunk in the actual execution of his ofiEice," it was decided by the Secretary of War that the effect of the omission of the words " under arms " in the revision of 1806 had been to remove one statutory restriction from the opel-ation of the Article without introducing a new one, and that the terms of the Article applied to all occasions of duty, and was not limited to duties performed by the roster, or by detail, but was applicable not only to occasions of duty in which the entire command participated, but to the case of guards, parties, and the like, composed of details from the several units of which the command was composed. 1 13 Statutes at Large, 317. = Acts of February 18, 1875, (18 Stat, at Large, 318,) February 37, 1877, (19 ibid., 344,) and June 6, 1873, (sec, 3,) (17 ibid., 361). The enactment last cited formally amended • Article 45 of the Code of 180fi, and the insertion of the word " corporal " in the revision of 1874 was for that reason erroneous ' Samuel, 551. Note the emphatic order of the President in regard to violations of this Article published in G. O. 104, Hdqrs. of Army, 1877. *08 MILITARY LAW. On Duty; Off Duty.— The words " on daty," as used in the 33d Article, I have also received an authoritative interpretation. As applied to the c om- I manding officer of a post, or of an oi^anization. or detachment in the field , the senior pfficer present, in the actua.!, exeicige _pf_com.niand, is consta ntly \ o n daty ;' the term^being here used in contradistinction to " on leave." In the case of other officers, or of enlisted men, the term " on duty " has been held to relate to the performance of duties of routine or detail, in garrison or in the field; the words " off duty," in respect to such persons, relating to such periods or occasions when, no duty being required of them by orders j or regulations, officers ^_and men are said to occupy that status of leisure I known to the service as being " off duty." " Nature of Intoxicant. — It is immaterial whether the drunkenness be voluntarily induced by spirituous liquor or by opium or other intoxicating drug; in either case the offense may be equally complete.' The drunkenness need not be such as totally to incapacitate the party for the duty; it is su fficient if it be such as materially to impair the full and free use of_ his mental or phjiiciTaTDilities.* It is not a suffi cient defense to a charge_of^runkenness on duty to show that the. accused, thqu gh und er the influence of liquor, contrived to get through and somehow perf ormJhedSy. ' Drunkenness as an Offense. — Drunkenness not on duty, or when off duty . ^ when amounting to a " disorder," should Ije^ charged under Article 62, unless (in a case of an officer) committed under such circumstances as to constitute an offense under Article 61.° So, too, an officer or enlisted man ' A post commander, while present and exercising command as such, is deemed to be at all times on duly in the sense of this Article, and thus liable to a charge under the same if he become drunk at the post. Dig. J. A. Gen., 37, par. 5. A medical officer of a post, where there are constantly sick persons under his charge who may at any moment require his attendance, may, generally speaking, be deemed to be " on duty," in the sense of the Article, during the whole day, and not merely during the hours regularly occupied by sick-call, visiting the sick, or attending hospital. If found drunk at any other hour, he may in general be charged with an offense under this Article. Ibid., par. 6. " That the Article is not limited in its application to mere duties of detail, but em- braces all descriptions and occasions of duty, see the interpretation of the same as declared in G. O. 7, "War Dept., 1856, and affirmed in G. O. 5, id., 1857. The case in the latter order, indeed, was a case of drunkenness while on duty as a post commander. See another case of the same character in G. C. M. O. 31, Dept. of the Missouri, 1870, and the remarks of jMaj.-Gen. Schofield thereon, and compare G. C. M. O. 9, "War Dept., 1875. Ibid., par. 5, note. ' Dig. J. A. Gen.. 38, par. 8. See, also, Simmons, § 157 ; Hough, Precedents, 208 ; James, Precedents, 60. * See G. C. M. O. 33, "War Dept., 1875; also do. 31, Dept. of the Missouri, 1870; G. O. 58, 98, Army of the Potomac, 1862; do. 48, Dept. of Va. & No. Ca., .1864; do. 33, Dept. of the Platte, 1871. * Dig. J. A. Gen., 38, par. 7. A finding, under a charge of a violation of this Article, of not guilty of being " found drunk," but guilty of being " found under the influence of liquor" (or by which the latter words &ve suhstitutedin the specification for the former) recommended to be disappromd as making a distinction too fine for a practical adminis- tration of justice, and establishing a precedent which must tend to defeat the purpose of the Article.* Ibid. ' Ibid., par. 9. An officer reporting in person drunk upon his arrival at a post, to the commander of which he had been ordered to report, held chargeable under this * Compare G. C. M. O. 33, War Department, 1S75. THE ARTICLES OF WAR. 409 wh o appears at a formatiop for dnty so much un der the influence of liquor as to be incapable ot its due and proper performance, and is"iliereby pre- / y vented'Trohi entering jnpST the "particular duty in question, is properly /«-— chargeable with an offense under the 62d Article.' ~^ While it is, in itself, an offense knowingly to allow an officer or soldier to go on duty when under the influence of intoxicating liquor, yet if he is placed on duty while partially under this influence, but without the fact being detected, and his drunkenness continues and is discovered while he remains upon the duty, he is strictly amenable under this Article, which prescribes, not that the party shall become drunk, but that lie shall be '''found drunk " on duty.'' Punishment. — No punishment eyoBpL-d'smisgal cg.n legally be imposed '^ upon an officer on a conviction of the ofifense made punishable by this / . Articlel ^A sentenceTmposing, with dismissal, any further piinishment, as I ^ imprisonrnent or forfeitujg^qf pay, js, as to such additfonaT j?Mltj;jjinautho- / rized andlnoperative,^nd_should_soJar be disapproved.' Since the provision requiring corporal punishment to be imposed upon enlisted men for violations of this Article have been abolished by statute, sentences in such cases have been discretionary with the court, subject, how- ever, to the requirements of the President's order establishing limits- of punishment for enlisted men of the Army. Aeticie 39. Any sentinel who is found sleeping upon his post, or who leaves it before he is regularly relieved, shall suffer death, or such other punishment as a court-martial may direct. Article 34 of the Prince Rupert Code contained the following require- ment: " A Centinel who is found sleeping in any Post, Garrison, Trench, or the like (while he should be upon his dnty) shall suffer death, or such other punishment as Our General Court-Martial shall, by their sentence, inflict for the same." " And if a Centinel or Perdue shall forsake his place, before he be relieved or drawn off, or upon discovery of an Enemy shall not give warning to his quarters according to direction, he shall saffer death, or such other punishment as Our General Court-Martial shall think fit." This Article. And so held of an officer reporting when drunli to the post commander for orders as officer of the day, after having been duly detailed as such. Dig. J. A. Gen., 37, par. 3. But'where an officer, after being specially ordered to remain with his company, absented himself from it and from liis duly, and while thus absent became and was found drunk, Jield that he was not strictly chargeable with drunkenness on duty under this Article, but was properly chai'geable with disobedience of orders and unauthorized absence, aggravated by drunkenness. Ibid , par. 4. ' A charge of drunkenness on duty (drill) lield not sustained where the party was found drunk, not at or during the drill, but at the hour appointed for the drill, which, however, by reason of his drunkenness, he did not enter upon or attend. The charge should properly have been laid under Article 62. Ibid., 37, par, 2. ^ Dig. J. A. Gen., 36, par. 1. Held that a soldier found drunk when on duty was properly convicted under this Article, though his drunkenness actually commenced before he went on the duty; his condition not being perceived till some time after he had entered upon the same. Ibid. ' Ibid., 38, par. 10. ■^ 410 MILITAST LAW. provision, which was repeated in the 33d of the King James Articles of 1686, appears in its present form as Article 6, Section 14, of the British Code of 1774, as Article 6, Section 13, of the American Articles of 1776, and as E"o. 46 of the Articles of 1806. " The safety of an army always depends upon the due vigilance of senti- nels, who are required to watch that others may sleep, whereby the camp may be seasonably refreshed from the daily labors of the field. But the requisite rest for this salutary purpose could not be freely enjoyed unless there should be a perfect confidence in the watchfulness of those who are assigned as the guardians of the repose and quiet of the camp. Hence penalties of the heaviest kind have been resorted to for punishing negli- gences and the more active faults that have the tendency to lessen the assurance that ought to be felt in the fidelity of sentinels. When it is con- sidered what important interests are committed in time of hostilities to their charge, and how these may be injured or affected by willful absence or inattention, it is not unnatural that these crimes should have been, in all ages and in almost all countries, regarded as capital ofEenses." ' They have been so regarded by our own Articles and by those prevailing in the British service from which our own were derived. To prevent soldiers when performing the duty of sentinels from falling into indulgences that might dispose them to or surprise them into sleep, 'it was a part of the older military regulations that soldiers should not sit down upon their watch, upon pain of imprisonment. The Eomans had a rule to the same effect, ordering that soldiers should stand or walk during the con- tinuance of their duty; and modern generals have enjoined a similar practice to be observed in the armies which they have commanded." It is no defensa.to a-chai;ge= ot-l' sleeping on post'l-that-ihe accased-had I been previously overtasked by excessive guaror soldier who quits his guard, platoon, or division ivithout leave from his superior officer, except in a case of urgent necessity, shall he punislied as a court-niartial may direct. that an order illegal iu itself, and not justifiable by the rules aud usages of war, so that a mau of ordinary sense and understanding would know, when he heard it read aud given, that the order was illegal, would afford the private no protection for a crime under such order ; but that an order given by an officer to his private which does not expressly and clearly show on its face, or the body thereof, its own illegality the soldier would be bound to obey, and s\ich order would be a protection to him. I have no doubt that the same principle would apply to the acts of a subordinate officer per- formed in compliance with his supposed duty as a soldier ; and unless the act were manifestly beyond the scope ot his authority, or, in the words used in the above case, were such that a man of ordinary sense aud uuderstaudiug would know that it was illegal, that it would be a protection tt) him if he acted in good faith aud without malice. As there is no i-eason to suppose that Clark was not doing what he conceived was his duty, aud the act was not so clearly illegal that a reasonable man might not suppose it to be legal — indeed I incline to the opinion that it was legal,— and as there was an entire absence of malice, I think he ought to be discharged." But even if this case were decided upon common-law principles the result would not be different. By the statutes of the State in which the homicide was committed, u, felony is defined to be any crime punishable by imprisonment in the state prison. Stone had been convicted of a military offense, and sentenced to hard labor in the military prison for two years, and, so far as the analogies of the common law are applicable at all, he must be considered, in a case of this kind, as having been convicted of felony. " It may be said that it is a question for u jury in each case whether the prisoner was justified by the circumstances in making u?e of his musket; and if this were a jury trial, I should submit that question to them; but as I am bound to find as a matter of fact that there is reasonable cause to believe the defendant guilty not merely of a homicide, but of a felonious homicide, and as I would, acting iu another capacity, set aside a con- viction if a verdict of guilty were rendered. I shall assume the responsibility of directing his discharge." U. S. vs. Clark, 31, Fed Rep , 710. ' In charging the jury in the case of the United States ®s. Can-, Mr. Jastice Woods instructed ihem to "inquire whether, at the moment he fired his piece at the deceased (a prisoner attempting to escape from the guard), with his surroundings at the time, the accused had reasonable ground to belii-ve, and did believe, that the killing or serious wounding of the deceased was necessary to the suppression of a mutiny then and there existing, or of a disorder which speedily threatened to ripen into a mutiny. If he had reasonable grouud so to believe, and did so believe, then the killing was not unlawful. * * * But it must be understood that the law will not require an officer charged with the order and discipline of a, camp or fort to weigh witli scrupulous nicety the amount of force necessary to suppress disorder. The exercise of a reasonable discretion is all that is required." U. S. m. Carr, 1 Woods, 484. 414 MILIIAST LAW. ..^- This requirement appears as Article 10, Section 14, of the British Code of 1774, as Article 10, Section 13, of the American Articles of 1776, and as No. 50 of the Articles of 1806. The word " guard," which did not appear in the Articles of 1774 or in the American Code of 1776, appeared for the first time in the Articles of 1806. Save that the offense becomes more serious when committed by a member of a guard, as is indicated by the maximum peualty which may be imposed upon conviction, it is similar in its essential elements to the offense of leaving the place of parade, exercise, etc., without leave from a commanding officer, which is defi;ned in the 33d Article, aud which has been discussed in connection therewith.' Abticle 41. Any officer wJio, by any means_ whatsoever, occasjons false aj g/rpis in camp, garrison, or quarters shall suffer death, or such other punishment as a court-martial may direct. In the war statutes of Kichard II. it is declared to be a heavy offense to spread false alarms, and the provisions of those, statutes have heen continued in several succeeding regulations of the same description. Under the title of " disturbances and public cries," a punishment, according to the custom of the times, is awarded hy the war articles of Henry V. against any one, of what condition, nation, and degree or digaity soever, who shall dare to make any clamor or disturbances by which the army may be disturbed. There are similar regulations which were in force during the reiga of Henry VIII. ' In -the ordinance of the Earl of Northumberland, issued during the reign of Charles I., there are two Articles comprehending most of the offenses included in the present Article: 1. "No man shall give a false alarm, or discharge a piece in the night, or make any noise, without a lawful cause, upon pain of death." 3. "No man shall presume to draw a sword without order, after the watch is set, upon pain of death." ' In Article 30 of the Prince Eupert Code the above requirement appears in the following form: " No Souldier shall presume to make any alarm in the quarter, by shooting off his musquet in the night, after the watch is set, unless it be at an Enemy, upon pain of suffering such punishment as a Court-Martial shall think fit." The provision appears in its present form as Article 9, Section 14, of the British Code of 1774, as Article 9, Section 13, of the American Articles of 1776, and as No. 49 of the Articles of 1806. The British Articles of 1774 authorized the penalty of death to be imposed only upon conviction of the offense when serving in " foreign parts " ; in Great Britain and Ireland, and in the Channel Islands, the punishment was discretionary with the court-martial. The mischiefs which the Article is intended to prevent are, first, the dis- turbance of the quiet of the camp or quarters, whereby the troops might be deprived of that seasonable refreshment from sleep which nature and the ' See Article 33, supra. ' Samuel, 574. ' Ibid., 575. THE ARTICLES OF WAR. 415 fatigues of war render requisite ; and secondly, the harassing and vexing of the soldiers by unfounded alarms, as a consequence of which there might be a failure to give due heed to a genuine signal of alarm sounded upon a proper occasion, and in obedience to which their prompt and immediate ser- vices would be demanded.' Abticle 42. Any officer or soldier who misbehaves himself before the enemy, runs away, or shamefully abandons any fort, post, or guard which he is commanded to defend, or speaJcs words inducing others to do the liJce, or casts away his arms or ammunition, or quits his post or colors to plunder or pillage, shall suffer death, or such other punishment as a court-martial may direct. The several offenses made punishable by this Article can be traced in substance to Articles 21, 23, and 23 of the Prince Rupert Code, which were embodied in a somewhat modified form as the 32d, 33d, and 34th of the British Articles of 1672. In its present form the provision appeared as Articles 12 and 13, Section 14, of the British Code of 1774, as Articles 12 and 13 of the American Articles of 1776, and as No. 52 of the Articles, of 1806. Article 12, Section 14, of the British Code of 1774 and the corres- ponding Article of the American Code of 1776, having been substantially merged in Article 52 of the Code of 1806, were omitted from the revisions of 1806 and 1874. Misbehavior before the enemy may be exhibited in the form of cowardice, or it may consist in a willful violation of orders, gross negligence or inefii- ciency, or in an act of treason or treachery, etc.° It need not be committed in the actual sight of the enemy, but the enemy must be in the neighbor- hood, and the act of offense must have relation to some movement or service directed against the enemy, or growing out of a movement or operation on his part. It may be committed in an Indian war, as well as in a foreign or civil war.' The term " his arms or ammunition " does not refer to arms, etc., which are the personal property of the soldier, but means such as have been furnished to him by the proper officer for use in the service. The term is ' Samuel, 575. ^ The phases whicb this offense may assume are well illr.strateri in Ihe r:is's published in the following General Orders of the War Depiirtment : G. O. 5. War Dent., 18n7; do. 183, id., 1862; ilo. 18, 1H4, 146, 189, 204, 229, S82, 317, id., 1863; do. 27, 64, id , 1864; G. 0. M. O. 90, 114, 272, 279, id., 1864 ; do. 53, 91, 107, 124, 126, 13+, 191, 421, id., 1865. ^ Dig. J. A. Gen., 40, par. 1. See the ciise reported in General Orders No. 5, War Department, 1857, in which a soldier was sentenced to be hung upon convirtion of mis- behavior before the enemy on the occasion of a fight wilh the Indi:ins. O'Brien sug- gests that the somewhat viigue and generiil statement of Ihe several offenses set forth in this Article was intentional and done "in order tliat all kinds of misbehuvior might be included within its scope, leaving it to the court-martial to assign to each particular fault its appropriate punishment." O'Brien, 142. See, also, Samuel, 592; Hough, Prac- tice, etc., 336. 416 MILITARY LAW. to be construed ia connnectioa with the further similar expressioa ' ' his post or colors." ' Pillaging and Plundering. — The act here made criminal involves, and is in substance an aggravated form of, the offense of " quitting a guard, platoon, or division " described and made punishable by the dOth Article of War. It includes a willful abandonment of his post on the part of an officer or enlisted man with the intention of committing acts of pillage and plunder. " The mischiefs produced or likely to be produced by this offense are many and obvious ; among which may be numbered the diversion of the soldiery from the first and grand object, the pursuit and destruction of the enemy, for a trifling and pitiful gain ; the dispersion often of the strength of an army to such wide and distant points as to render it impracticable for it to be collected again on a sudden emergency or need; and the easy extermina- tion of the forces in this divided and isolated state. * * * The anticipation of any one of the results enumerated is sufficient to have induced the rulers or generals of ancient as well as modern armies to punish so dangerous an offense with the highest possible punishment." ' Article 43. If any commander of any garrison, fortress, or post is com- pelled, iy the officers and soldiers under his command, to give 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. The act of unlawful compulsion liere defined and made punishable is in fact a form of mutiny, and as such properly chargeable under the 22d Article of War. This provision appears as Article 22, Section 14, of the British Code of 1774, as Article 22, Section 13, of the American Articles of 1776, and as No. 59 of the Articles of 1806. ASTICLE 44. Any person belonging to the armies of the United States who makes known the watchword to any person not entitled to receive it, according to the rules and discipline of war, or presumes to give a parole or watchword different from that which he received, shall suffer death, or such other punishment as a court-martial may direct. Article 33 of the Prince Rupert Code contained the requirement that " whoever makes known the Watch-word without order, or gives any other Word but what is given by the Officer, shall suffer death, or suoh other punishment as Our General Court- Martial shall think fit." The present provision appears as Article 15, Section 14, of the British Code of 1774, as Article 15, Section 13, of the American Articles of 1776, and as No. 53 of the Articles of 1806. In the United States service the countersign is not published in orders, but is communicated confidentially to those who are entitled to receive it; ' Dig. J. A. Gen., 40, par. 3. See Samuel, 593; Hough, Practice, etc., 336. ' Samuel, 585. THE ARTICLES OF WAB. 417 that is, to the officers and non-cominissioned officers of the guard, to such members of the guard as are actually engaged in the performance of duty as sentinels, and to such other persons as are permitted or required, on account of their official duties, to pass and repass a line of sentinels at night. The parole, which serves as a check upon the countersign, is given only to those ly ho, by their offic e or (inty,~are'enti5ed to visit and inspect guards or se ntinels at ni ght. It is used solely as a means of identification^ but it cannot avail- as a passport unles s"^]aroompani^"by the ^conntersjgn^ The term " watchword," as used in the Article, comprehends not onlj the countersign and parole, but any preconcerted word or signal issued, by com- peteilt authority, for a similar purpose in the performance of guard or outpost duty. The ofEense may be committed by any military person who makes known the watchword to one not entitled to receive it, in accordance with existing orders and regulations, or who gives a parole or watchword different from that which he received. As no specific intent is set forth in the statute, the ofEense may be committed through negligence or inadvertence, or with the intent to convey the watchword to the enemy; the ofEense would be com- plete in either case. Abticle 45. Whosoever relieves the enemy with money, victuals, or am- munition, or knowingly harlors or protects an enemy, shall suffer death, or such other punishtnent as a court-martial may direct. Abticle 46. Whosoever holds correspofidence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death, or such other punishment as a court-martial may direct. These provisions appear respectively as Articles 18 and 19, Section 14, of the-British Code of 1774, as Articles 18 and 19, Section 13, of the Ameri- can Articles of 1776, and as Nos. 56 and 57 of the Articles of 1S06. In view of the general term of description "whosoever" in these Articles it was held, during the late war, by the Judge- Advocate-General and by the Secretary of War, and has been held later by the Attorney-General, that civilians, equally with military persons, were amenable to trial and punishment by court-martial under either Article.' But the sounder con- struction would seem to be that, as the Articles of War are a code enacted for the government of the military establishment, they relate only to persons belonging to that establishment unless a different intent should be expressed or otherwise made manifest. No such intent is so expressed or made mani- fest. Persons not belonging to the military establishment may be proceeded ' Dig. J. A. Geu., 40, par. 1. Admitting this construction to be warranted so far as relates to acts committed on the theatre of war or within a district under martial law, it is to be noted that it is the effect of the leading adjudged cases to preclude the exercise of the military jurisdiction over this class of oSenses when committed by civilians in places not under military government or martial law. See, especially, Ex parte Milligan, 4 Wallace, 131-133; Jones vs. Seward, 40 Barb., 563. Ibid., 40, par. 1, note. // 418 MILITARY LAW. against for the acts mentioned in the Article, but it is by virtue of the power of another jurisdiction, namely, martial law; and martial law does not owe its existence to legislation, but to necessity.' The scope of these Articles under the legislation of 1776, apparently extending their applica- tion to civilians, seems to have been modified as a consequence of the adoption of the Constitution. Eelieving the Enemy. — The act of " relieving the enemy " contem- plated by this Article is distinguished from that of trading with the enemy in violation of the laws of war; the former being restricted to certain par- ticular forms of relief, while the latter includes every kind of commercial intercourse not expressly authorized by the government.' It is none the less relieving the enemy under this Article that the money, etc., furnished is exchanged for some commodity, as cotton, valuable to the other party. ° Holding Correspondence with the Enemy. — The offense of holding corre- spondence with the enemy is completed by writing and putting in progress a letter to an enemy, as to an inhabitant of an insurrectionary State during the late war; it not being deemed essential to this offense that the letter should reach its destination.* It is essential, however, to the offense of giving intelligence to the enemy that material information should actually be communicated to him; and such communication may be verbal, in writing, or by signals.' " The rule which declares that war makes all the citizens or subjects of one belligerent enemies of the government and of all the citizens or subjects of the other applies equally to civil and to international wars." An insurrectionary State is no less " enemy's country," though in the military occupation of the United States, with a military governor appointed by the President." Abticle 47. Any officer or soldier who, having received pay or having been duly enlisted- in the service of the United States, deserts the same, shall, in time of ivar, suffer death, or such other punishmetit as a court-martial may direct; and in time of peace, any punishment excepting death which a court-martial may direct. The first statutory recognition of this offense in England dates'from the middle of the fifteenth century, and will be found in an enactment ' confer- ring the status of felony upon a soldier who deserted from the captain whom ' Opin. J. A. Gen. ' Dig. J. A. Gen., 41, par. 4. ' Ihid., pi\r. 3. * IMd., 43, par. 1. ' Ihid. , pfir. 2. « The Service, 2 Wall., 274, 418. See, also, the opinion of the U. S. Supreme Court (frequently since reiterated in substance) as given by Grier, J., in the "Prize Cases," 2 Black, 66fi (862), and by Chase, C.J. , in the cases of Mrs. Alexander's Cotton ; and Dig. Opin. J. A Gen.. 41, par. 2. ' 18 Henry VI., eh. 19. THE ARTICLES OF WAB. 419 he had contracted to serve. At a somewhat later date the penalties of this statute were extended to soldiers who had contracted to serve the crown.' Although the crime of desertion was made a capital offense in the first Mutiny Act, the offense itself is not defined in that enactment, nor does it appear as a military offense in the Articles of "War issued by James II. under the royal prerogative in 1686. The British Code of 1774 contains the fol- lowing requirement: " All officers and soldiers who, having received pay or having been duly inlisted in Our Service, shall be convicted of having deserted the same, shall suffer death, or such other Punishment as by a Court-Martial shall be inflicted." " The provision appears as Article 1, Sec- tion 6, of the American Code of 1776 in the following words: " All officers and soldiers who, having received pay or having been duly enlisted in the service of the United States, shall be convicted of having deserted the same, shall suffer death, or such other punishment as by a court-martial shall be inflicted." "With a slight verbal change in the first line, the Article appears as No. 20 of the Articles of 1806. Such modifications as the statute has undergone since 1806 have had chiefly to do with the penalty imposed upon conviction of the offense in time of peace. ^ The Act of May 29, 1830,* contain ed the require ment that '^ no officer or soldier' in ttie Army uC ffi e United States_ .shall be subject to the punish- ment nf dpa^.Tfy oTfTpsertio n in time of peacc-^" In cases in whTcKlHe death- penalty was not inflicted prior to»this enactment, flogging was frequently imposed upon enlisted men as a punishment for desertion in common with a number of the more serious military offenses; and, under the name of " corporal punishment," was more than once recognized in the Articles of 1806. The Act of May 16, 1812,' however, repealed so much of the Articles of 1806 as authorized the infliction of corporal punishment by stripes or lashes; but this requirement was itself repealed, as to the offense of deser- tion, by the Act of March 2, 1833." Flogging, as a form of military punish- ment, was finally abolished by the Act of August 5, 1861,' which is em- bodied in the 98th Article of "War. The infliction of the death;,pgnalty_for_desertion in time of peace, which was abolistfea mthe United States service, as has been seen, by the Act of May'2'9, 18 30,° con tinued to be 'inflicted in the United Kingdom until some 1 7 Henry VII.. ch. 1; 3 Henry VIII., ch. 35; 3 and 3 Edward VI., ch. 3, which was re-en.'vcted in 4 and .t Phil, and Mary, ch. 3, sec. 8. ' Article 1, Section 6. ' An idea of the importance of the offense, and of the frequency of its occurrence in the Revolutionary armies, may be gained by an examination of the Resolutions of Con- gress of May 31, 1786. in respect to the pursuit and apprehension of deserters. They appear at the close of the clauses amendatory of the Articles of War in regard to the procedure of courts- marl ial in Volume II. of "VVinthrop's Military Law, page 97. * 4 Stat, at Large, 418. '■2 ibid., 735. « 4 ibid., 647. ' 12 ibid., 817. 8 4 ibid., 418. ^ 420 MILITART LAW. time after the beginning of the present centnry. It was authorized by statute in Great Britain until 1881 as a punishment for the offense of desertion when committed in active service,' but was abolished by implica- tion in Section 44 of that enactment, which describes the different punish- ments authorized to be inflicted upon enlisted men. In time of peace, however, the punishment is graded according to the character of the offense; the maximum penalty being penal servitude, in addition to which an " ignominious discharge " may be imposed at the discretion of the court.' Deserbion is the most serious offense, involving unauthorized absence, that is known to military law ; it is punished severely at all times, and in time of war may be punished with death. The Article describes the persons by whom the offense may be committed (who may be either officers or enlisted men), bat contains no definition of the off ense itself, Tybinb ia d etermined by the cu & tnm pf sf ^i-yj^^R. The offense may be committed (a) by an officer or a duly enlisted soldier, and (b) by one wh o, by the recei pt, of pay, allowan ces, or ernnlnment.s incident to his station in the service, has voluntarily accepted the military status. ' Definition;;_;^I)esertion may therefore be defined as an jui.authprized ^^bseuting of himself from the military service by an officer or soldier, with the -intention of not returning. In other words, it is the violatiorToFmili- tary discipline familiarly known as absence without leave (whether consisting in an original absenting without authority, or in an overstaying of a defined leave of absence), accompanied by an animus remanendi or non revertendi ; this animus constituting the gist of the offense. In order to establish the commission of ♦ the specific offense, both these elements — the fact of the unauthorized voluntary withdrawal and the intent permanently to abandon the service — must be proved.' The Intent. — The intent. may be inferred, not indeed from the fact of absenting alone, but from the circumstances attending this fact, and , here the duration of the absence is especially material. Thus the circumstance that the absence has been exceptionally protracted and quite unexplained will in general furnish a presumption of the existence of the necessary intent. An unauthorized absence, however, of a few hours, terminated by a forcible apprehension, may, under certain situations, be sufficient evidence of SQch intent and thus proof of a desertion; while an absence for a consid- erable interval, unattended by circumstances indicating a purpose to separate permanently from the service, or to dissolve the pending engage- ment of the soldier, may be proof simply of the minor included offense. In order to determine whether or not the officer or soldier absented himself with ' Manual Mil. Law, 30. For corporal punishments which may be imposed upon enlisted men in the British service, see ibid., 751. ' Man. Mil. Law, 340-342; 1 Clode, Mil. Forces, 154. 1 Dig. J. A. Gen,, 337, par. 1. THE ARTICLEB OF WAR. 421 the intent not to return, i.e., whether his offense was desertion or absence without leave, all the circumstances connected with his leaving, absence, and return (whether compulsory or voluntary) must be considered together. Each case must be governed by its own peculiar facts, and no general rule on the subject can be laid down."- Essential Elements of the Offense. — The liability of the offender having been established," the offense will be found to consist in absence without * Dig. J. A. Geo., 337, par. 1. Where an officer left his post on a three days' leave of absence and did not return to duty or report himself at the proper time, but ab- sconded to Canada with a large amount of government funds, lield, on his being arrested some months subsequently in the United States, that he was clearly chargeable with the offense of desertion.*' So where an ofBcer, having been guilty of sundry embezzlements and frauds, and become involved in debt, and being on the point of being placed in arrest, obtained, by means of WI10II3' false representations, a brief leave of absence from his post for the expressed purpose of visiting a certain placed named, and was subsequently apprehended at a place quite other and much more distant than that designated, and while rapidly traveling eii route for a still more remote locality, — held, in the absence of any evidence to rebut the presumption thus ridsed. that he was properly chargeable with having absented himself with the animus of a deserter. IMd., 338, par. 2. But that a soldier has been charged with a desertion is no evidence that he has com- mitted the oifeuse. Thus held that the mere fact that a soldier, absent without authority, liad been arrested and returned to his regiment as a deserter was no proof whatever of the oSense charged. So held that a mere entry on a morning-report book, descriptive roll, or other official statement or return, that a soldier deserted on a certain diiy, was not legal evidence of a desertion by him, but was evidence only that he had been cha/rged with desft'tion.-j- So a report from the Adjutant-General's Office containing extracts from the muster-rolls of a regiment on which a soldier of the same was noted as having deserted on a certain date, held incompetent evidence of the fact of desertion, upon a trial of the soldier for that offense, t Similarly lield that the mere statement of a first ser- geant, given as testimony on the trial of a. soldier of his company charged with desertion, that the accused " deserted " at a certain time and place, was insufficient as proof of the offense charged, being, indeed, but an assertion of a conclusion of law. In such cases it is for the witness simply to slate the facts and circumstances, so far as known to him, attending the act charged ; it being the province of tlie court alone to arrive at the con- clusion that the offense has been committed. To convict a deserter upon an accusation merely, however formally and officially the same may be made, would be as unwar- ranted in law as it would be unjust in fact. Ibid., 339, par. 3. The fact that a soldier has been dropped from the rolls as a deserter is not legal evi- dence to prove the fact of desertion on a trial for that offense. Tbid., 346, par. 25. '^ In a recent decision of the Supreme Court itwas held that that the taking of the oath of enlistment " was the pivotal fact which operated to change the status and to charge the person so enlisting with tlie military duties and responsibilities incident to that rela- tion." § Proof of due enlistment will in general be afforded by the production of the contract of enlistment containing the oath above referred to. In the second case, the receipt of pay, allowances, etc., evidence such an acquiescence in or acceptance of the military status; and such acquiescence, if established in evidence, will suffice to fix upon the offender the military character, to the extent of making him liable to trial and punish- ment for desertion: and this independently of the manner in which he came into the service, whether by voluntary enlistment, by conscription, or as a member of a militia organization, in obedience to a call of the President, in time of war or public danger. In a great majority of cases the proof required in support of the allegation that the accused was a duly enlisted soldier is limited to the testimony of one or more witnesses who identify liim as a member of the company and regiment from which he deserted. It very rai-ely becomes necessary to produce a copy of the enlistment-paper in order to establish the fact of his "having been duly enlisted in the service of the United States." * See G. O. 338, War Dept,. 1863. t Compare a. C. M. O. 33, Dept. of the Missoiu-i, 1875. See the title "Charges of Desertion," p. 429, post. % Compare Hanson vs. S. Scituate, 115 Mass., 336. § In re Grimley, 137 U. S., 147. 422 MILITARY LAW. leave, with the added intention of not returning. The fact of unauthorized absence is established as in absence without leare ; ' the intent not to return will in general be proTed by circumstantial evidence as to the facts attend- ing the departure of the accused, or the character and duration of the absence. It is the duty of an oflBcer or enlisted man when absent from any cause to return at once to his post of duty; a failure to return, therefore, if persisted in for a sufficient time, will suffice to create the presumption of an intent not to return which constitutes the offense of desertion.' The nature of the offense of desertion is well illustrated in cases of escape. The mere fact that a soldier while awaiting trial or sentence, or while under sentence (and not discharged from the service), escapes from his confinement is not proof of a desertion on his part, since he may have had in view some minor object, such as the procuring of liquor, etc' But an escape followed by a considerable absence, especially if the soldier is obliged to be forcibly apprehended, is strong presumptive evidence of the existence of the intent necessary to constitute the crime. So, though the absence involved may be comparatively brief, the circumstances accompany- ing the escape, or attending the apprehension, may be such as to justify an equally strong presumption. An escape with intent not only to evade con- finement but to quit the service, while the party is held awaiting proceedings for desertion, is of course a second or additional desertion.* ' Every desertion includes an offense of absence without leave. See Dig. J. A. Gen., 345, par. 18. ' Tliis period is fixed at ten days in paragraph 133, Army Regulations of 1895. ' See a case of this nature (an escaping in order to obtain liquor) in G. O. 33, Dept. of the South, 1873: and compare the case in do. 87, id., 1872, in which a conviction of desertion is disapproved on the ground that the evidence showed " merely an escape from the guard-house without intention to leave the service or the vicinity of the post." And see in this connection Samuel, 334, where to be "discovered " after a short absence " in the pursuit of some accidental temporary object, though perhaps otherwise illicit," is instanced as not indicating an intent by the ollender " to sever himself from the ser- vice." Dig. J. A. Gen;, 340, par. 4, note 1. '' Dig. J. A. Gen , 340, par. 4. As to the nature of the offense which may be involved, there is pi-opcrly no substantial distinction between an escape while awaiting trial or sentence and an escape while in confinement under sentence. An escape, indeed, from an imprisonment imposed by sentence would probably be more likely to be characterized by an animms non revertendi than an escape from a merely preliminary confinement in arrest. So an escape from confinement while awaiting trial upon a grave charge, which must entail upon conviclion a severe punishment, would naturally be more generally so characteiized than an escape from an arrest upon a churge of inferior consequence. Undoubtedly in the great majority of cases escape is desertion; the precedents, how- ever, show that it is not necessarily so ;* and upon the mere fact alone that a soldier has liberated himself from military custody, it is not just to convict him of having designed to dissolve his cimlract and permanently .abandon the military service. Of course an escape from legal military custody is always an offense, and tlie soldier who has escaped may (where his act does not amount to a deserfon) be brouglit, to trial for such offense as " conduct to the prejudice of good order and military discipline." It need hardly be added that an escape from imprisonment under sentence, effected by a party wlu) has been dishonorably discharged under the same sentence, cannot con- * See note 3, supra. THE ABTIOL.es OF WAR. 423 Itjs no-defease t.Q.a . charge ijLdea^Uon^tJiat the joldietjasjoiaaed. to / / abandon the service b^y^ reason of ill treatrngnt, j9[aiit,.M.4)roper food, etc.; //^ s iich cirounistances can~onlY palliate, not_ excuse, the offense committed.' ' It is, however, a__comglgta answer to a charge_of ^eserti^n _b£fj3£e_ a mai-faJ, t£atthe_ ac onsed has previously been ''restored^_to duty without trialj^lJS-sanctioned by paragraph 128, Army Regulations, provided he has been so restored by competent authority, i.e., the commander who would have been authorized to convene a general court for his trial; otherwise, however, when so restored by a superior not duly authorized.' Apprehension of Deserters. — The right of the United States to arrest and bring to trial a deserter from the military service is paramount to any right of control over him by a parent on the ground of his minority.' Such arrests may be made by military persons duly authorized for that purpose, or, under circumstances presently to be explained, by certain ciyil officers under authority conferred by statute." Rewards for the Apprehension of Deserters. — The reward made payable by Army Regulations ' is not due merely on the apprehension of a deserter; stitute a desertion or other offense, the party at the time of escape being no longer in the military service. Dig. J. A. Gen., S40, par. 4. Every desertion includes an absence without leave. Upon a trial for desertion the accused is tried also for the absence without leave involved in. the offense charged. * If acquitted without reservation of the desertion, he is acquitted also of the lesser offense. If convicted, as he may be, of the lesser offense only under a charge of the greater, he is acquitted in law of the latter. Ibid., 345, par. 18. ' Dig. J. A. Gen., 341, par. 6. So, in a case of a Swiss who, having enlisted in our Army, deserted after two years of service, field that it was no defense (tliough, under the circumstances, matter of extenuation) that his act had been induced by an intense nostalgia or maladie du pays So, in a case of a desertion by a German, held, that the fact that he had received anotifloatiou from the military authorities of the North German Empire to report at home for militarv duty, under the penalty of being considered as a deserter from the G'^rraan army, constituted no defense to a desertion committed by him from our service. As to the principle of the right of expatriation as asserted in our public law, see Sec. 1999, Rev. Sts. Ihid. Held to be no defense to a charge of desertion that the accused, at the time of the enlistment which he is charged with having abandoned, was an unapprehended deserter from the Army: an enlistment of a deserter being not void, but voidable only. Dig. J. A. Gen., 341, par. 5. ' Ibid., par. 7. Enlisting in the enemy's army by prisoner of war is desertion, unless submitted to as a last resort to save life, or escape extreme suffering, or obtain free- dom. Thus, in a case of a U. S. soldier who entered the service of the enemy from An- dersonville, Ga., in the late war, heldt\\aX tlie burden of proof was on him to establish that he resorted to such enlistment with design of effecting his escape and rejoining his own army; and that his abandoning such enlistment and coming within our lines at the first opportunity was material evidence of such a design. Ibid., 345, par. 30. See, also, paraL'raphs 23, 23, and 24, p. 346, ibid. ^Ibid., 345. par. 19 ; In re Cosenow, 37 Fed. Rep., 668; In re Kauffman, 41 ibid., 876; In re Grimley, 137 U. S., 147. * Such arrests, however, must be effected within the territorial jurisdiction of the United States, unless such arrest be authorized by international convention. See Dig. J. A Gen., 346, par. 21 ; 347, ibid., par. 29. ' Paragraph 134, Army Regulations of 1895. * See 1.3 Opin. Att.-Gen., 460. 4:24 MILITARY LAW. he must also be delivered "to an oflBcer of the Army at the most convenieBt post or recruiting station." Th e fact ot the offer.,aLa xewaxd-f or the arr est of ^a^deserter-dne&noiauAboiize a breach of the peace or the commis sion of an illegal act in making the arrest.' ' — To eiitffle^ person~to the reward for the arrest of a deserter," the party arrested mnst be still a soldier. Though at the time of the arrest the period of his term of enlistment may have expired, or he may be under sen- tence of dishonorable discharge, yet if he has not been discharged in fact, the official duly making the arrest, etc., on account of a desertion committed before the end of his term becomes entitled to the payment of the reward specified in the regulations.' The soldier arrested mnst be a deserter and legally liable as such. If he has been judicially determined to be not a deserter, as where he has been convicted of absence without leave only," or if, in view of the limitation of the 103d Article, he has a legal defense to a prosecution for desertion,' the reward is not payable for his apprehension." The civil official takes the risk of the soldier being or not being an actual deserter. If he turns out to be not one, the official loses his time and disbursements, if any.' ' Dig. J. A. Gen., 343, par. 13. See, in this connection, Clay m. United States, Devereux, 25, in wliicli au oflBcer who, under the orders of a superior, had, without previously procuring proper authority to enter and search from a civil magistrate, broken into a dwelling-house for the purpose of securing the arrest of certain deserters, was held to have committed an unjustifiable trespass, and his claim to be reimbursed by the United States for the amount of a judgment recovered against him on account of his illegal act was disallowed by the Court of Claims. ' The amount of the reward is now fixed by statute at a sum not greater than ten dollars. Acts of August 6, 1894, (28 Stat, at Large, 239,) February 12, 1895, (28 iUd., 659,) and March 16, 1896 (39 ibid., 65). See, also, paragraph 184, Army Eegulations of 1895. The amount of the reward— to cite from G. O. 325, A. G. O. of 1863— is in full "for all expenses incurred in apprehending, securing, and delivering a deserter." Dis- bursements made by a civilian, where no arrest is effected, are at his own risk, and cannot legally be reimbursed by the military authorities. Dig. J. A. Gen., 344, par. 13. " Similarly held where the soldier, arrested when at large a^ a deserter, had been sen- tenced to confinement (without discharge) and had escaped therefrom. Ibid., 346, par. 26. " See paragraphs 124 and 136, Army Regnlations of 1895. « See par. 124, ibid., and G. O. 23, A. G. O,, of 1893. « Dig. J. A. Gen., 347, par. 97. Where the soldier when arrested had been absent but three days, and was still in imiform, and had not been reported or dropped as a deserter, and his company commander had not the " conclusive evidence " of his " inten- tion not to return" referred to in par. 133, A. R. of 1895, held that there was not suffi- cient evidence that he was a deserter to justify the payment of the reward for his arrest and delivery. Ibid., par. 38. Where a civil official, in good faith and in compliance with military instructions, made the arrest and delivery of a deserter, who, however, was of the' class of deserters specified in G. O. 22 of 1893, viz., those who "would have the right to claim exemption from trial and punishment" under the present 103d Article of War— a fact not within the knowledge of the olfioial, and which he could not have ascertained, but who there- fore had no legal claim for the payment of the reward — ?ield that the reasonable expenses of such ofiicial incurred in the arrest, etc., might well be allowed by the Secre- tary of War out of the appropriation for the contingent expenses of the army. Ibid., 349, par. 37. ' Ibid. Thus held that such official could have no claim to be reimbursed his expenses THE ARTICLES OF WAR. _ 425 The Arrest must be a Legal One.' — An act done in violation of law cannot be made the basis of a legal claim. The rule of^Jhe con].]xi.()ii,lg,,w, that a pe ace offi cer or a private citizen may.-arrest,a felon witliout a warrsi^, does not' ex tendito t he case j)f jin__offender^ a whjaj's puriishaBle exclnsively by a court-martial." Un^r existing jtatute|^^|ggji a rrests may be rn iade by a military officer ,' o^by a non-commissjoned officer or private duly authorized to malse the arrest, and by "any civil officer havin g autJior uy under _thej.aws of the United ..Sta^es^or pf^ji^^^^^g^te, Territory, or iJistrict to arrest offenders, to summarily arrest a deserter from the milttgny^gfYice oi the't) nited States and deliver him into the custody of the military authority^f the general goverp-flient. " ' ^ -"■=™. Delivery. — The delivery should be personal and manual on the part of the civil official,' and without qualification or condition; the several statutes incurred in making, in good faith, the arrest of a supposed deserter who was in fact a dishonorably discharged soldier. Dig. J. A. Gen., 349, par. 37. ' Dig. J. A. Gen., 347, par. 29. Thus held that the reward was not payable for an arrest made on the soil of Mexico, involving a violation of the territorial rights of that sovereignty. An act done in violation of law cannot be the basis of a legal claim. Ibid. 2 Kurtz m. Moffatt, 115 U. S., 487 ; Trask vs. Payne, 43 Barber, 569. ^ Ibid. Hutchings m. Van Bokkeleu, 34 Maine, 136. While deserters may be arrested by ofiScers or enlisted men, rewards for such apprehension are never payable to military persons. * Sec. 2, Act of October 1, 1890 (26 Stat, at Large, 648). See, also, sec. 3, Act of June 16, 1890 (Ibid., 157). An oificer of the customs, empowered by law to make arrests of persons violating the revenue laws, but having no such general authority as is ordinarily possessed by peace officers "to arrest offenders" (according to the terms of the Act of October 1, 1890, authorizing certain civil officials to arrest deserters), field not entitled to be paid the regulation reward for the apprebension, etc., of a deserter from the Army. Dig. J. A. Gen. , 348, par. 34. Held that a justice of the peace of Idaho was not, by the laws of that State,' a peace officer or authorized to arrest offenders, and was therefore not within the terms of the Act of October 1, 1890, or legally entitled to be paid the reward for the arrest, etc., of a deserter. Such justice may by his warrant authorize and thus cause arrests, but actual arrest pertains, under the laws of the State, to another class— sheriffs, constables, city marshals, and policemen. Similarly Jield in regard to an Indian who brought in a deserter to a military post in North Dakota, he having no authority under the laws of that State to make arrests. But held that a member of the Indian police, established, under the regulations of the Indian Office, was a civil officer having authority to arrest offenders, and was entitled to the reward for the arrest of a deserter. Ibid., par. 35. ' Dig. J. A. Gen., 347, par. 31. Where a soldier who had deserted was sentenced to a penitentiary as a horse-thief, and at the end of his term of imprisonment a U. S. marshal caused information that he was a deserter to be conveyed to the commander of a neighboring military post, who thereupon had him arrested and brought to the post, 7ield that the marshal was not entitled to claim the reward. Ibid. So where a civil official merely informed a captain of artillery that two soldiers serving in his battery were deserters from the battalion of engineers, 7ield that, though such information was correct, the official was not entitled to the reward ; and that the ainoimt of the same, which had been erroneously paid him on the certificate of the cap- tain, should be charged against the latter under paragraph 654, Army Regulations, 1895. Ibid., par. 32. Circular No. 11 (H. A.), 1883, declares that the reward shall not be paid where the deserter, at the time of arrest, "is serving in some other branch of the Army," etc. Thus held that the reward was not payable for the arrest of a deserter from the cavalry who, subsequently to his desertion, had enlisted in an infantry regiment in which he was serving at the date of the arrest. Ibid., par. 36. _ Where a civil official, having made an arrest of a deserter, concealed him from the military authorities, and afterwards permitted or connived at his escape, recommended -0 ^ "> 426 MILITARY LAW. authorizing the payment of rewards contemplate such, payment only in cases of complete and unconditional delivery. The circiimstancea .attending such delivery must be such as to negative the idea of fraud or collusion on the part of the officer making the arrest.' " Where the deserte r was not arrested_by, but surrendere d himself to, t he ^ivil official, who in goo d faith took him into c ustodi:.and_ gec urely held a nd duly delivered him, it has _been held^ that there had been a substan tial appreheniion ^for the p urpose of reward, and t hat the reward was_properly payable^. Stoppage of Reward. — The legal liability imposed upon the soldier by Army Eegnlations,' to have the amount of the award stopped against his pay, is quite independent of the punishment which may be imposed upon him by sentence of court-martial on conviction of the desertion. Such stoppage is incident upon the conviction,* and heed not be directed in the sentence; courts-martial indeed have sometimes assumed to impose it like an ordinary forfeiture of pay, but i ts insertion in the sentence adds nothing to its legal effec t.' , "WJieie ^ soldier charged with desertion is acquitt ad. or where, if con- / victed, his conviction is disapproved by the competent reviewing authority, / he cannot legaljy_be^iadejliablejpr the amount ^i a reward^paid or payable ' for his arrest as a deserter, since in, such^aases he is not a deserter in law." Where a soldier for whose apprehension as a supposed deserter the legal reward has been paid is subsequently brought to trial upon a charge, of desertion, and is found guilty, not of desertion, but of the lesser and dis- tinct offense of absence without leave only, he clearly cannot legally be held liable for the reward by a stoppage of the amount against his pay. In such ft case, the instrumentality resorted to by the United States for determining the nature of his offense — the court-martial — having pronounced that it was not desertion, the government is bound by the result, and to visit upon him a penalty to which a deserter only can be subject would be grossly arbitrary and wholly unauthorized. Moreover such action would be directly at variance with the terms of the Army Eegulations,' which fix such liability that the Attorney-General be requested to instruct the proper U. S. district attorney to initiate proceedings under Sec. 5455, Kevised Statutes. Dig. J. A. Gen., 345, par. 17. ' The reward should be withheld where there is evidence of collusion between the alleged deserter and the civil official. Advised that a suspicion of such collusion was properly entertained in a case where the soldier, after an absence of but a few days, voluntarily surrendered himself, at or near the post of delivery, to a policeman, who turned him over, without expense or difficulty, to the military authorities, who did not treat him as a deserter, but caused him to be charged, tried, and convicted as an absentee -without leave only. iJiU, p. 348, par. 33. , „ „ . ,„„„ s Ibid., 347, par. 30. See, also, Circular No. 1, H. Q. A., 1886. » Paraeraph 126, Army Regulations of 1895. « 16 Opinions Att.-Gen., 474; Dig. J. A. Gen., 344, par. 16. « Dig. J. A. Gen., 344, par. 14. « Ibid., par. 15. ' Par. 136, A. R., 1895. TEE ARTICLES OF WAR. 427 npon t he soldier tried in the eycnt only of his conYJction of desert ion,' £^ unless indeed the s entence "f ^•■lif; o.<^nrt pvpi -esslv forfeits the amoant. ' Statutory Consequences of Desertion. — Certain statutory consequences follow, by operation of law, and not otherwise, upon conviction of the ^ offense of desertion.' These are : ( 1) the obligation to make good the ti me lost]' (2) fm-feitnre of thfi ri ghts nf p.iMzenship; ' (3) ^capacity to hold oific e u Q.der the United States ; ' (4) forfeiture of retained pay and deposits. " As in the case of absence without leave, a person absent in desertion forfeits all pay and allowances accruing during such unauthorized absence, but these forfeitures are incurred on account of the violation of the terms of the con- tract of enlistment, not by operation of law, but because they have not been earned. The forfeiture of the rights of citizenship, and the incapacity to hold ' 16 Opin. Att.-Gen., 474. ' Dig. J. A. Gen., 344, par. 16. A deserter is not chargeable, under par. 126, A. R. 1895, with the expenses of transportation therein specified, if his conviction has been duly disapproved; such disapproval being tantamount to an acquittal. Ibid., 349, par. 38. The expense of the transportation of a convicted deserter, incurred in the course of the execution of his sentence, is not chargeable against the deserter under par. 126, A. R. 1895, but must be borne by the United States. Ibid., par. 39. ' Every soldier who deserts the service of the United States shall be liable to serve for such period as shall, with the time he may have served previous to his desertion, amoimt to the full terra of his enlistment; and such soldier shall be tried by a court-martial and punished, although the terra of his enlistment may have elapsed previous to his being apprehended and tried. 48th Art. of War. * All persons who deserted the military or naval service of the United States and did not return thereto or report themselves to a provost- marshal within sixty days after the issuance of the proclamation by the President dated the eleventh day of March, eigh- teen hundred and sixty-five, are deemed to have voluntarily relinquished and forfeited their rights of citizenship, as well as their right to become citizens ; and such deserters shall be forever incapable of holding any ofiice of trust or profit under the United States, or of exercising any rights of citizens thereof. Section 1996, Revised Statutes. No soldier or sailor, however, who faithfully served according to his enlistment until the nineteenth day of April, eighteen hundred and sixty-five, and who, without proper authority or leave first obtained, quit liil command or refused to serve after that date, shall be held to be a deserter from the Army or Navy; but this section shall be construed solely as a removal of any disability such soldier or sailor may have incurred, under the preceding section, by the loss of citizenship and of the right to hold office, in consequence of his desertion. Section 1997, ibid. ' Every person who hereafter deserts the military or naval service of the United States, or who, being duly enrolled, departs tlie jurisdiction of the district in which he is enrolled, or goes beyond the limiis of the United States, with intent to avoid any draft into the military or naval service lawfully ordered, shall be liable to all the penalties and forfeitures of section nineteen hundred and ninety-six. Section 1999, ibid. ' Any enlisted man of the Army may deposit his savings, in sums not less than five ■dollars, with any Army paymaster, who shall furnish him si deposit-book in which shall be entered the name of the paymaster and of the soldier, and the ainount, date, and place of such deposit. The money so deposited shall be accounted for in the same manner as other public funds, and shall pass to the credit of the appropriation for the pay of the Army, and shall not be subject to forfeiture by sentence of court-marl ial, hut shall be foo-feited by desertion, and shall not be permitted to be paid until final payl ment on discharge, or to the heirs or representatives of a deceased soldier, and that such deposit be exempt from liability for such soldier's debts: provided that the Government shall be liable for the amount deposited to the person so depositing the same. Section 1305, Rev. Stat. See, also, Sec. 2438, ibid. 428 MILITARY LAW. ■^ office under the United States, i mposed apon deserters by several statat es.' canb e incarrg d...gnly upon, and as incident to, a conviction of desertion by a ge neral court-marbial, dul y ap proved by c flojftetfi at aathorit y.' These dis- abiLities, t hough att aching to every sach convictionjjnay be re moved b y an exec utive pardo p^olibe offender. ^ 'The forfeiture of pay and allowances, prescribed for deserters by para- graphs 132, 1380, and 1381 of the Army Kegulations of 1895 can be imposed, in any case, only upon a satisfactory ascertainment of the fact of desertion. The same may indeed legally be enforced in the absence of an investigation by a military court, as, for instance, upon the restoration of a deserter as such to duty without trial, by the order of competent authority, under paragraph 132 of the Army Eegulations of 1895. But in general, in this case as in that of the statutory liability, the forfeiture can safely be applied only upon the trial and conviction by court-martial of the alleged deserter.* Approval of Conviction Necessary. — The conviction must of course be duly approved; if it be disapproved, the soldier cannot legally be subjected to the forfeiture, since he cannot be treated as a deserter in law. Nor can he be subjected to the forfeiture if he is acquitted, though the finding be dis- approved by the reviewing authority. A removal, in orders of the War Department, of a charge of desertion entered by mistake upon the rolls- against a soldier operates to relieve him of any and all stoppages which have been charged against his pay account for forfeitures authorized by the Army Regulations in cases of deserters. ' A deserter cannot legally be subjected to any forfeiture other than those prescribed by statute or army regulation. He iiijatn=8T-£ai i example, no for- feiture of his own personal property ° as a consequence of desertion. ' Seclions 1996 and 1998, Revised Statutes. ' Such is believed to liave been the uniform course of ruling in the civil courts. See Staters. Symonds, 57 Maine, 148; Holt vs. Holt, 59 id., 464; Severance -vs. Healy, 50 N. Hamp., 448; Gntcheus ot. Mattliewson, 61 N. York, 420 (and 5 Lansinjr. 314; 58 Barb., 153) ; Hiiber m Reilly, 53 Pa. St. , 113 ; McCafferty m. Guyer, 59 id. , 110; Kurtz vs. MofBtt, 115 U. S., 501. As to the liability tomake good to iheUnited States the time lost by ade.iertim. also incident upon a conviction of this offense, see 48th Article, §S 1-5. ' Diff. J. A. Gen., 343, par. 8. ■* Ibid. > par. 9. The restoration of a deserter to duty without trial, under paragraph 133, Army rtesrulntions of 1895, does not operate as an acquittal, or relieve the deserter from the forfeitures of pay includingretained paj') incurred under paragraphs 1380 and 1381 of the 'rray Regulations (1895). Ibid., 342, par. 8. ^ Ibid. ' Ibid., 343, par. 10. So where certain property left by a deserter in his quarters was sold by the aulhorities of the post with intent to devote the proceeds to the post fund, held that such proceeds, upon the subsequent arrest of the deserter, should be paid over to him. So a soldier by reason of having deserted does not forfeit bounty money which has been paid him upon enlistment or subsequently, or any other money found in his possession upon his arrest. And such money cannot legally be withheld from liim, to be appropriated to a regimental or post fund or any other purpose, but, being his own personal property, unaffected by his offense, must be left In his possession. Ibid. THE ARTICLES OF WAR. 429 Charges of Desertion. — It has been seen that the characteristic intent in the oSense of desertion is established by the facts attending the unauthorized absence of the deserter from his post of duty. When those circumstances are such as to lead to the belief that the offense of desertion has been com- mitted, that fact is noted upon the records of the command to which the alleged deserter belonged, and such entry constitutes what is known in the military service as & charge of desertion. The entry upon the reports and returns is in no sense a military charge upon which the accused can be brought to trial; it is the formal, official record of a fact, made by the proper officer in obedience to law and regulations. The efEects of such a charge, however, are important, since it operates to suspend during its existence all benefits that would accrue to the accused as a consequence of the contractual relation established by him at'his enlist- ment into the military service. In so far as the deserter is concerned, it is also a criminal breach of the enlistment contraci.. He ceases to be entitled to pay, allowances, or other benefits accruing upon enlistment, his time ceases to run, all payments cease, even of sums due at the date of his deser- tion, and he becomes liable to apprehension and trial for the crime of deser- tion, under the 47th Article of War. The charge so raised can only be completely removed or negatived by an acquittal after a trial by a general court-martial. By several statutes,' however, the Secretary of War is authorized to remove the charges of desertion standing against the names of certain soldiers who served in the War of the Rebellion or the War with Mexico. The action of the War Department under these statutes operates rather to do away with the conse- quences of the charge than to blot out the charge itself, which, being in its nature a fact, cannot be changed by legislation. A p ardon does not o peratejet roactively, and cannot, therefore, " remove a char ge " of desertion It-doas.rnQt-.wi pe out the fact th at^ the parTy^ id I , / desert, nor caji_Jtjiij;ke_the_£ecord say that_]ie-.ditl jiQL-dfiS£id;.-~Ii_eamJot change facts of his tory. N orcan^ pardon regtoreamounts wh ich have bee n aentnally^TnrTeijet^ by (lesertio iiJ The restoration of a deserter to duty without trial ' does not operate as /^> an acquittal, or relieve the deserter_from_t^e_forfeitures of pay (including retained pay) incurr ed by operation of la w.^ Article 48. Every Koldier who deserts the service of the United States shall ie liable to serve for such period as shall, ivith the time he may have served previous to his desertion, amount to the full term of his enlistment ; ' Acts of AiisuPt 7, 1882, (23 Stat, nt Large, 847,) July 5, 1884, (23 ibid , 119,) May 17. 1886, (34 md., r.1,) Miircli 3. 1889 (25 ibid.. 8fi9,) Marcli 3. 1^91, (2fi Wd.. 894,) July 27, 1893, (27 ibid , 378,) and Mavoh 3, 1896 (S8 ibid., 814). See, also, Dig. J. A, Gen., 843, par. 9. i'Dig. J A. Gen., .3.51, par. 47, ' Par. 133, Army Regulations of 1895. * Dig. J. A. Gen., 351, par. 48 ; paragraphs 1380 aud 1881, A. R. 1895. 430 2IlLrrAliY LA w. and sucli soldier shall le tried ly a court-martial and punished, although the term of his enlistment may have elapsed previous to his being apprehended and tried. This Article, anlike those which have already been discussed, was neither borrowed nor adapted from a corresponding provision of the British Military Code. It appeared in statutory form in 1802,' but was repeated in 1812 in connection with an enactment authorizing an increase of the military estab- lishment, made necessary by the existence of the war with England. « The Ija ^ntY to make good the time la at_bs: his unauthor i'^prl ahgpnfP at taches t o_a_des erter, as such j_w hate.Yer his status or the dis posi tinn o f his case._ This liability is quite distinct from the liability to punishment. It results from the violation of his contract, and this contract is subject to the law of specific performance. It attaches although he may not have been convicted of the offense, although the statute of limitation may have taken effect in his case (whether or not sustained as a plea on a trial by court- martial), although he may have been pardoned, and although he may have been restored to duty without trial. The liability doesjiot_attach, howeve r, to mere ab sentee s without l eave.' As a conviction is not essential or material to the enforcement of the obligation enjoined by this Article, so if there be a trial and conviction it is not essential or material that the completing of the term of service should be specifically prescribed as a penalty in the sentence. And so a deserter / accepting a restoration to duty without^ trial is liable to be required to mak e goooT tEe^'lfme lost by his desertion th ough the order restorin£^him makes no rnention of"such a_condition.' ' See Sec. 18, Act of March 16, 1802, (2 Stat, at Large, 136,) Act of January 11 1812 (2 Stat, at Large, 673,) and January 29, 1813. (2 ibid., 796). ^ Dig. J. A. Gen., 43. par. 8. The liability to make good to the United States the time lost by desertion, enjoined by the first clause of this Article, i.s independent of any punishment which may be imposed by a court-martial, on conviction of the offense ; it need not, therefore, be adjudged or mentioned in terms in a sentence.* If the convic- tion is disapproved, the legal status of the accused is the same as if he had been acquitted, and the obligation of additionid service is of course not incurred. Ibid., 42, par. 1. Where a deserter was sentenced to imprisonment for the "balance of his term," Jield that he was not absolved from tlie obligation to make good time lost ; these words refer- ring to the balance of the term of his original enlistment. Ibid-., par. 2. The time passed by a deserter in confinement under sentence cannot be computed as a part of the period required by the Article to be made good to the tlnited State.'?, such time not being a time of military service, but of punishment. Nor can the period of confinement be credited where the sentence is remitted before it is fully executed. So time passed by the deserter in arrest or confinement (or in hospital) while waitinn- trial or action upon his sentence cannot be so computed. Ibid.. 43, par. 3. » Ibid., 44, par. 9 The enforcement of the liability, where enforced at all, is gener- ally postponed till after the execution of the punishment (if any) imposed upon the deserter by liis sentence. A deserter may still be required to make good the time included in liis unauthorized absence from the service, although his term of enlistment has expired * Until a period so lat« as 1848 the opposite view prevailed, and the statute was reearded as creatine a liability which could onlj- be made operative by the sentence of a court-martial. See G O 45 A G 0., 1843. TEB ARTICLES OF WAR. 431 The United States may waive the liability imposed by the first clause of the Article, It is in fact waived where the deserter, without being required to perform the service", is discharged by one of the officials authorized by 'Article 4 to discharge soldiers. So it is waived where the soldier is adjudged to be dishonorably discharged by sentence of court-martial, and this punish- ment is duly approved and thereupon executed.' The provision of the second clause of this Article applies only to deser- tions committed while the soldier is duly in the service and before his term of enlistment has expired. A deserter who has been duly discharged from the service of course does not remain amenable to trial under this Article." The liability to trial and punishment imposed by the second clause of the Article is subject to the limitation of prosecutions prescribed by Article 103." Article 49. Any officer who, having tendered Ms resignation, quits his post or proper duties without leave, and with intent to reraain permanently aisent therefrom, prior to due notice of the acceptance of the same, shall ie deemed and punished as a deserter. This requirement, like that contained in the preceding Article, is new to the United States service. It first appeared in statutory form as Section 2 of the Act of August 5, 1861,* and in its present form as M"o. 49 of the Articles of 1874. To constitute an offense of constructive desertion under this Article, the tender of resignation and the subsequent departure of the officer from his command must be established; the latter act being combined with the intent of remaining "permanently absent therefrom." This would be shown, as is the case of the intent in desertion, by the circumstances attend- ing the departure of the officer and by his subsequent conduct. When these elements have been established a case of constructive desertion exists, to which the penalties consequent upon conviction of desertion attach by operation of law. Abticle 50. iVb non-commissioned officer or soldier shall enlist himself in any other regiment, troop, or company ivithout a regular discharge from the regiment, troop, or company in which he last served, on a penalty of being reputed a deserter, and suffering accordingly. And in case any officer shall knowingly receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to he a deserter, immediately confine him and give notice thereof to the corps in ivhich he last served, the said officer shall, ly a court-martial, be cashiered. p.ending a terra of confinement adjudged him by court-martial on conviction of hia offense, provided be has not been discharged. Dig. J. A. Gen., 43, par. 4. ' Ihid., par. 5. 2 Ibid., par 6. 5 Ibid., par. 7. * Section 2, Act of August 5, 1861 (12 Stat, at Large, 316). 432 MILITARY LAW. -> Although this requirement had formed a part of the English Articles of War for a number of years, it was not formally embodied in the Mutiny Act until 1783. It will be found as Article 3, Section 6, of the British Code of 1774, as Article 3, Section 5, of the American Articles of 1776, and as No. 23 of the Articles of 1806. This Article in its first clause does not create a specific offense, or one distinct from the desertion made punishable in the 47th Article, but declares in effect that a soldier who abandons his regiment shall be deemed none the less a deserter although he may forthwith re-enlist in a new regiment. It does not render the act of re-enlistment a desertion, but^ sim|j] y makes the r e-enlistmen t, under the circumsten_ces_,in(Jicated, vrJma facie eTi dence of a desertion from the previous enlistment from which the soldier has not been discharged 7 or, more accurately, evidence of an intent not to return to the same.' The object of the provision, as it origin ally appears in the British \ Cod e, apparently wis~Eo p recluae tlie notion, that might otherwise have been entertained, that a soldier would be excused from repudiating or departing from his'original contract of enlis tment, proyidedjie presently renewed his obligation in a different portion of the military force.' The second clause of the Article gives an added sanction to the first, by making it an offense, highly penal in character, " in case any officer shall knowingly receive and entertain such non-commissioned oflicer or soldier, or shall not, after his being discovered to be a deserter, immediately confine him and give notice thereof to the corps in which he last served, the said officer shall by a court-martial be cashiered." The gravity of the offense is thus seen to be measured by the mandatory sentence of cashiering which a court-martial is required to impose upon an officer found guilty of having received or entertained a deserter, or, knowing a soldier to be such, in not causing him to be immediately confined, and notice given to the corps in which he last served.' Article 51. Any officer or soldier wlio advises or persuades any other officer or soldier to desert the service of the United States shall, in time of war, suffer death, or such other punishment as a court-martial may direct ; ' Di?. .1. A rfen., 44 par. 1. See Gea. Court-martial Order No. 139, Department of the Missouri. 1872; do. 77, idsm, 1874. , ' Ibid , 4.5, par. 1. See, also, Samuel, 330, 331. The provision was first embodied in th(' Mutiny Act in 1783. Held that an enlisted marine, who abandoned the marine corps without a discharge and enlisted in the Armv. could not be " reputed a deserter" according to the terms of this Article ; but advised that he lurned over to tlie commandant of that corps for the proper disposition and action. Disr J. A Gon., 45. par. 2. WlK^re a soldier enlistpd in ii certain regiment after being otEcially notified that he was duly discharged from a previous enlistment, but without having received the written certificate and evidence of his discliarce, which by mistake or accident had not been delivererj to him as required by Article 4, lield that he could not properly be "reputed" or charged ns a deserter. Ibid., par. 3. ' Samuel, 331, 332. TEE ABTIGLES OF WAR. 433 ■and in time of peace, any punishment, excepting death, tvhich a court-martial may direct. This Article is in substance a re-enactment of Article 4, Section 6, of the British Code of 1774, Article 4, Section 6, of the American Articles of 1776, and No. 33 of the Articles of 1806, to which the requirement of the Act of May 29, 1830,' has been added, prohibiting the imposition of the death penalty for the offense of desertion when committed in time of peace. The acts described, which in this Article are made substantive military offenses, are such in fact as to confer upon those committing them the character of accessories before the fact to the crime of desertion. By the terms of the original Articlfi _jt.j£as not necessary that there s hould have •been an actu al desertion to constitute th_e_offense contemplated; it was suffi- cient, withoutjooking to the consequence (which depended not_on_the_will of the perso n counselli ng the act)^ that the advice be given or the persuasi on used; for, in that is the entire offens e, so far as i t can connect itself with the person givmgthejsaunsel.^ In our own service, however, the provision has been more strictly construed, and it has been held that to constitute the offense of advising to dese rt it is not essential that th ere should have been an act ual desertion. b .y_tlie,party .adyjsed. It has been held otherwise, how- ever, as_to the offense__ of^ persuading to dese rt : to complete this offen se the pers uasion should have induced the act. " Article 52. It is earnestly recommended to all officers and soldiers dili- .gently to attend divine service. Any officer who behaves indecently or ' Act nf May 39, 1830 (4 Stat, at Large, 418). ' ' Samuel, 3^9. i ' Dig. J. A. Gen., 45, par. 1. A declaration made by one soldier to another of a willingness to desert with him in case he should decide to desert, held not properly an advising to desert, in the sense of this Article. Ibid., 45, par. 1. Section 5455, Eevised Statutes, contains the requirement that "every person who entices or procures, or attempts or endeavors to entice or procure, any soldier in the military service of the United States, or who has been recruited for such service, -to •desert therefrom, or who aids any such soldier in deserting or attempting to desert from such service, or who harbors, conceals, protects, or assists any snob soldier who may have deserted from such service, knowing him to have deserted therefrom, or who refuses to give up and deliver such soldier on the demand of any officer authorized to receive him, shall be punished by imprisonment not less than six months nor more than two years, and by a fine not exceeding five hundred dollars; and every person who en- tices or procures, or attempts or endeavors to entice or procure, any seaman or other person in the naval service of the United States, or who has been recruited for such ser- vice, to desert therefrom, or who aids any such seaman or other person in deserting or in attempting to desert from such service, or who harbors, conceals, protects, or assists any such seaman or other person who may have deserted from such service, Icnowing him to have deserted therefrom, or who refuses to give up and deliver sucli sailor or other person on the demand of any officer autliorized to receive him, shall be punished by imprisonment not less than six months nor more than three years, and by a fine of not more than two thousand dollars, to be enforced in any court of the United States having jurisdiction." * * Where a civil official, having: made an arrest of a deserter, concealed him from the military au- thorities, and afterwards permitted or cmmived at his escape, recommended that the Attornes'-Gen- eral be requested to instruct the proper United States district-attorney to initiate proceedings under Section 5455, Eevised Statutes. Dig. Opin. J. A. Gen., 345, par. 17. \/ / 434 MILITARY LAW. irreverently at any place of divine worship shall be brought before a general coitrt-niartial, there to be publicly and severely reprimanded by the president thereof. Any soldier who so offends shall, for his first offense, forfeit one sixth of a dollar J for each further offense he shall forfeit a like sum, and shall be confined twenty-four hours. The money so forfeited shall be deducted from Ms next pay, and shall be applied, by the captain or senior officer of his troop, lattery, or company, to the use of the sick soldiers of the same. The first proTision respecting diviae service, in the Articles of 1662- 1663, required chaplains to " read the Common Prayers of the Church of England to the Soldiers respectively under their charge, and to preach ta them as often as with convenience shall be thought fit ; and if any neglect his duty herein, he to be punished at discretion; and every Officer or Soldier absent from prayers shall, for every absence, lose a day's pay to His Majesty." The direction for daily service was not of long continuance, for the Articles of 1673 made mention only of Sundays and of public festivals and fasts. The requirement assumed its present form in the Articles of 1717 and appears as Article 1, Section 1, of the British Code of 1774, as Article 2, Section 1, of the American Articles of 1776; the positive command of the British Article being modified in form to an earnest recommendation, in which shape it appears as No. 2 of the Articles of 1806. The several codes prior to and including that of 1806 contained a requirement impos- ing a special penalty upon chaplains for a failure to perform their duties by reason of unauthorized absence. As chaplains were placed upon the footing of commissioned oflBcers of the Army, by the Act of April 9, 1864,' they became subject to the same penalties for absence without leave as applied to other commissioned officers, and this provision was therefore omitted from the Articles of War in the revision of 1874. Article 53. A7iy officer who uses any profane oath or execration shall, for each offense, forfeit and pay one dollar. Any soldier who so offends shall incur the penalties provided in the preceding article ; and all moneys forfeited for such offenses shall be applied as therein provided. Not a little space is devoted in the earlier military codes to provisions calculated to insure respect for the Articles of Faith of the Church of England. By the middle of the eighteenth century these clauses had been considerably reduced in number and severity; such as remained, however, were adopted by Congress in the Articles of 1776. Mere profanity, as dis- tinguished from blasphemy, and profanation of the Articles of Faith, was forbidden in Article 3 of the Prince Eupert Code in the following terms: " whosoever shall use any unlawful oath or Execration (whether Officer or Souldier), shall incur the penalty as exprest in the 1st Article " (enjoining^ attendance upon divine service)." This provision is repeated in the Articles ' 13 Stat, at Large, 46. THE ARTICLES OF WAB. ^SS^ of James II., and appears as Article 3, Section 1, of the British Code of 1774, and as Article 3, Section 1, of the American Articles of 1776, in which, for the first time, was embodied the requirement which is contained in the first clause of the present Article imposing a fine of one dollar for each offense, when committed by a commissioned officer. The provision was reenacted in the Articles of 1806 and 1874 without substantial change. Abticld 54. Every officer commanding in quarters, garrison, or on the march shall keep good order, and, to the utmost of his power, redress all abuses or disorders which may ie committed by any officer or soldier under his command ; and if, upon complaint made to him of officers or soldiers beating or otherioise ill-treating any person, disturbing fairs or markets, or committing any kind of riot, to the disquieting of the citizens of the United States, he refuses or omits to see justice done to the offender, and reparation made to the party injured, so far as part of the offender's pay shall go toward such reparation, he shall be dismissed from the service, or otherwise punished y as a court-martial may direct. This provision appears as Article 2, Section 9, of the British Code of 1774, as Article 1, Section 9, of the American Articles of 1776, and as No» 33 of the Articles of 1806. " It is at all times most desirable that an army whilst marching through a foreign territory, and much more through its own country. or that of an ally, should conciliate the people by its peaceable demeanor and render the progress through it as little inconvenient or prejudicial to the common inhabitants as may be. The same is also to be desired of its conduct during; its temporary sojournment in quarters or in garrison." ' This Article is directory upon the commanding officers of military posts or troops in the field in two particulars : First, In requiring justice to b e done to the offender. This duty is perfo r med by bring i ng the acc used to trial by court-martial under appropriate charges; Second, in rec^uirin g ^ reparation ^Eo"b e made to the par ty~iniured, to the extent of_ the pfEender's. paj. ' This is a summary proceeding which i s regulated in a p ro per case by | the terms of G-enerarOrdera" orthe WWjDegartment. Procedufe^^The^roceSureunder this Article' is as follows: The citizen aggrieved tenders a " complaint " under oath, charging the injury against a particular soldier or soldiers, described by name (if known), regiment, etc., and accompanied by evidence of the injury, and of the instrumentality of the person or persons accused. If .such evidence be satisfactory, the oom - manding office r lias the damages assessed by a b oa.rd, and makes_order^f or s uch stoppage of pay as will be suffi cient for the " reparation ' ' enjoined by the Article. T he commander must have a proper case presented to him; he cannot legall y proceed of his own motion .' • Samuel, 539. * See General Orders No. 35, War Department, of 1868. ' Dig. J. A. Gen., 47, par. 7. The pay of the offender or offenders can be resorted to / 436 MILITARY LAW. The stoppage contemplated is qui te distinct fr opa a pumsh ment by fine, and it ca nnoTaffect^ the q uestio n~"ofIthe summary reparation authorized by the Article, that the offender or offenders may have already been tried for the offense angr"sente noe3 to forfeiture of p ay. In such a c ase, indeed , the forfeiture, as to its execution, would properly take precedence of the stoppage. On the other hand, wher e the stoppag e is first duly ordered under the Art icle, it has pr ecedence over a forfeiture subsequently adjudged for the offej iae- ' Article 55. All officers and soldiers are to behave themselves orderly in quarters and on the march j and whoever commits any waste or spoil, either in walks or trees, parks, ivarrens, fish-ponds, houses, gardens, grainfields, inclosures, or meadows, or maliciously destroys any property whatsoever ielonging to inhabitants of the United States, {unless by order of a general officer commanding a separate army in the field,) shall, besides such penalties as he may be liable to by law, be punished as a court-martial may direct. This requirement appears as Article 16, Section 14, of the British Code of 1774, as Article 16, Section 13, of the American Articles of 1776, and as No. 54 of the Articles of 1806. The reason assigned for the excepting clause in the British Articles of 1774, and in the corresponding provision of the American Articles of 1776, and which is declared in the former " to annoy rebels or other enemies in arms against Us," and in the latter " to annoy only for the purpose of the " repanition." A military commander can have no author- -ity to add a further amount of stoppage by way of punishment. Dig. J. A. Gen., 47, par. 5 ' Ibid., 46, par. 3. Hdd that, as an agency for assessing the amount of the damage, a court-martial could not properly be substituted for the board, directed by G. O. 35, Hdqrs. of Army. 1868, to be convened for such purpose. Jbid., par. 6. It does not affect the question of reparation under the Article that the offender or offenders may be criminally liable for the injury committed, or may have been punished therefor by the civil authorities. Ibid., par. 3. Held that the remedial provision of this Article could not be enforced in favor of military persons, or in favor of the United States, or to indemnify parties for property stolen or embezzled. Ibid., par. 4. Where proof was duly made under this Article of Injury done by some persons of a command, but the active perpetrators could not upon investigation be determined, and it appeared tliat the entire command was present and implicated, held that the stoppage might legally be made against all the individuals present. Ibid., par. 8. In a few cases a stoppage of the pay of im entire regiment for damage to private property committed by its members has been sanctioned as authorized under the general remedial provisions of this Article. Ibid., 46, par: 1. While this Article would certainly appear to contemplate the making of reparation for injuries done to tlie versons of citizens rather than for injuries done to \.hm property, yet advised, in view of the precedents, tliat it miglit probably be regarded as within the equity of the Article to indemnify a citizen for wanton injury done to hXs property by a soldier or soldiers, bv means of a stoppage against his or their pay, summarily ordered upon investigation by the commanding officer.* Ibid. * See, also, G. O. 3.^. Hdqrs. of Army, 1868, construing this Article, and prescribing the proceeding Tinder it, reparation for injury to propert'i as well as ppvson being authorized. The Article, however, is antiquated in form and indefinite and incomplete in its provisions, and calls for repeal or amend- ment For the'principal cases in which it has been applied in our practice, the student is refert-ed to ft. O. 4. Dept. of the Ohio, 1863; do. 123, Dept. of the Gulf, 1864; do. 161, Dept. of Washington, 1865; do. 59 id 1866; do. 74. Dept. of Arkansas, 1S65; do. 48, 55, Dept. of Louisiana, 1866; do. 6, Sept. of the Cum- herland. 1867; do. 10, Dept. of the South, 1870. TEE ARTICLES OF WAR. 437 rebels or other enemies in arms against said States," is omitted from the re-enactments of 1806 and 1874. The acts of trespass, etc. , indicated in this Article are made punishable as special breaches of discipline, and less for the protection of citizens than for the maintenance of the orderly behavior and morale of the military force. ' The 55th Article makes an exception iu respect to property destroyed " by order of a general oflQcer commanding a separate army in the field." This is bel ieved to be the only case in which, by a formal enactment of Congres s, obedi ence to the orders of a superior can be pleaded in bar to an action for^_damages j;rowingoutof the destrueEion of the^grivate^jjcopfir-ty of an inhabitant of the United States by an officer or soldier. The£xcepting clause operat^_Jo transfer thg^regjonsibilityj^ .the.-person by whom the destruction was committed to J ihe. officer ordering the particular property to be desteoyed. Aeticle 56. Any officer or soldier who does violence to any person iring- ing provisions or other necessaries to the camp, garrison, or quarters of the forces of the United States in foreign parts, shall suffer death, or such other punishment as a court-martial may direct. As it is impracticable for armies to carry along with them the necessary provisions for their consumption during a lengthened campaign, and as they must in- a great measure depend for their supply on the countries through which they pass, be they friendly or hostile, it is at all times for the interest of such armies, and has therefore been the peculiar care of the generals com- manding them, to eucourage and protect couatrymen and others in bring- ing provisions to the camp. The military regulations have been uniform at all times in awarding the extreme punishment of death to soldiers who should do any violence to the persons of those who furnish the army with provisions, or to their goods or merchandise." Such conduct was forbidden under penalty of death by the war statutes of Henry V., as well as by those of Elizabeth and Charles T. Article 35 of the Prince Etipert Code contains the requirement that " whoever shall do violence to any who shall bring victuals to the camp or garrison, or shall take his horse or goods, shall suffer death, or such other punishment as he shall be sentenced to by Our General Court-Martial." The provision was repeated as Article 33 of the Code of James II. and appears in its present form as Article 11, Section 14, of the British Code of ' Di.c. J. A. Gen , 48 par. 1. Where, under the cliarge of " maliciously destroying property" in violation of tliis Article, the cour' convicted the accused, except as to the word "malitiously," iind imposed sentence, held that by Ihis exception in its finding of the gist of the offense charged the court had in fact acquitted tlie accused of the same, and that the form of its judgment was therefore irregular and improper ; and advised that the proceedings he returned lo the court for revision, so that it might either formally acquit the accused altogether or find hiin not guilty of the charge, but guilty of "conduct to the prejudice of good order and military discipline." Ibid., par. 3. » Samuel, 560-563. / 438 MILITARY LAW. 1774, as Article 11, Section 13, of the American Articles of 1776, and as No. 57 of the Articles of 180G. Article 57. Whosoever, lelonging to the armies of the United States in foreign parts, or at any place within the United States or their Territories during rebellion against the supreme authority of the United States, forces a safeguard, shall suffer death. Article 10 of the Prince Rupert Code contained the following provision on this subject: " Whoever shall presume to violate Our Safe-guard, Safe- Conduct, or Protection (knowing the same), shall suffer death or such other punishment as shall be inflicted upon him by Our General Court-Martial." It will be observed that this provision is considerably more comprehensive in its terms than the present Article, inasmuch as all forms of instruments similar in tenor to safeguards, such as safe-conducts and the like, are included within the scope of the Article. The requirement appears as Article 17, Section 14, of the British Code of 1774, as Article 17, Section 13, of the American Articles of 1776, and as No. 55 of the Articles of 1806. The British Military Codes have always made a distinction between offenses committed within the territorial limits of the United Kingdom and those committed outside of, or beyond, sach jurisdiction. This has been the case to a marked degree since the passage of the first Mutiny Act, and the distinction has been repeatedly made in the Mutiny Acts themselves. This distinction was based upon the fact that the exercise of military jurisdiction in certain cases would not be sanctioned by Parliament if attempted within the territorial limits above stated; without such limits, or in "foreign parts," in the language of the Articles and Mutiny Acts, the common law not being operative, no such conflict of jurisdiction could arise. As no such jurisdictional question was likely to arise in the military procedure of the United States, the words "foreign parts" were omitted from all the Articles except two, the 56th and 57th of the present Code. A doubt having arisen, during the pendency of the War of the Eebellion, as to the power of a court-martial to try an offense under the Article when committed in a State in rebellion against Federal authority but within the territory of the United States, the clause " or at any place within the United States or their Territories during rebellion against the supreme authority of the United States " was added to the Article.' ' Section 5, Act of July 13, 1861, (12 Stat, at Lfirge, 257,) iind Act of July 31, 1861 (13 ibid., 340). In its present form the Article confers upon a general court-martial jurisdiction to try the oflEense of forcing a safeguard in two cases : (1) when the offeuse is committed in "foreign parts," and (2) when committed within tlie territorial limits of the United States during rebellion against their authority. It may be questioned, however, whether the offense would be so triable if committed within the territory of the United States during invasion by a foreign power, and in the theatre of active military opera- tions. In such a case it is believed that resort would have to be had to the military commission, the grant of jurisdiction to a court-martial, in the 57th Article, not being sufficiently comprehensive. THE ARTICLES OF WAR. 439 Safeguards. — A safeguard is a written instrument issaed by the general com manding an army in the field, for th e purpose of affording protection to/ Qf^' t he person or property of a non-combat ant with in tne t heatre of acti ye mili-- t ary onerations. The instrument is ordinarily issued in the form of an order in writing, signed by the commanding general and authenticated by the signature of a principal officer of the staff, and is posted on the premises to which it is intended to afford protection. An escort or guard may or may not be furnished to enforce respect to its terms. It is not necessary to specify in the instrument itself the precise amount of protection that is to be afforded, since it is the purpose of the commanding general, in issuing the safeguard, to guarantee a complete immunity from interference in behalf of the person or property therein mentioned. , Forcing a Safeguard. — The offense of forcing a safeguard is committed ' by a militar y person wh o, with' a knowledge of its existence, does any act of violence or spoliation i n or upon the premises protected, or willfully dis- i r egards the protection affor ded^ by the^instrument ; such knowledge being r obtfvii)pd frnyi ,^ih,(;,f1i^=jp1a.Y of thfi JTistrnmeTit, or ^m the notification of the p CTSon in whosf i hp.haJX or-^icaujffiilflga. protection Jt_was_ issued, or Jjy some other suffi^i^t_meansijiherwisej;he offender could not be guilty of the high 1 contempt for aujthprity^^hich is jjJiclJ.Qated by the commission of the offense.' While it is a serious offense against discipline to assault a sentinel, or to offer violence to his person, or to disobey his instructions, or even to be wanting in respect for his office, the crime of forcing a safeguard is entirely different from any of these, and is much more grave in character, since it involves a willful disregard of the authority of the commander-in-chief of an army in the field.' Aeticle 58. Tn time qfwar. insurrection, or rebellion, larceny, rohiery, iurglary, arson, mayJiem, manslaughter, murder, assault and lattery with an intent to Mil, toounding, by shooting or stabbing, with an intent to com- mit murder, rape, or assault and battery with an intent to commit rape, shall be punishable by the sentence of a general court-martial when committed by persons in the military service of the United States ; a nd the punishme nt in any such case shall not be less t han the p unishment provided for thelike offense by ihe laws of the State, Territory, or district in which such offense may have been committed. This provision first appeared in the following form as Article 2, Section 20, of the British Code of 1774: " Notwithstanding its being directed in the Eleventh Section of these Our Eules and Articles, that every Commanding ' That such a previous knowledge is essential is indicated by the terms of the Article (IS it appears in the Codes of Prince Rupert and James II., where it is described as an integral and indispensable part of the offense by the use of the words "knowing the game " which have been omitted from subsequent codes. ' Samuel, 566-571 ; Halleck, Int. Law, 665 and authorities cited. -^■ 440 MILITARY LAW. Officer is required to deliver up to the Civil Magistrate all such Persona under his Command who shall be accused of any Crimes which are punish- able by the known Laws of the Land; yet in Our Garrison of Gibraltar, Island of Minorca, Fort of Placentia, and Annapolis Royal, where Our Forces now are, or in any other Place beyond the Seas, to which any of Our Troops are or may be hereafter commanded, and where there is no Form of Our ^ivii Judicature in Force, the Generals or Governors, or Commanders respectively, are to appoint General Courts-martial to be held, who are to try all Persons guilty of Wilful Murder, Theft, Robbery, Rapes, Coining or Clipping the Coin of Great Britain, or of any Foreign Coin current in the Country or Garrison, and all other Capital Crimes, or other Offenses, and punish Offenders with Death or otherwise, as the Nature of their Crimes shall deserve." As the reasons assigned for the existence of this Article did not exist in America, that is, as the United States had no possessions beyond the seas, and as there were no portions of the territories of the United States over which the courts of some one of the States did not exercise jurisdiction in respect to the trial and punishment of criminal offenses, and, moreover, as the authority of the Continental Congress did not extend to judicial matters not arising in the land and naval forces, this provision was not embodied in the Articles of either 1776 or 1806. I^first appeared in st atutory form in the Act of^ March 3, 1863,' and is embodied in the present code as the 58th Article of War." Application of the Article. — Prior to the enactment of this Article the offenses enumerated therein would have been punishable, if at all, by mar- tial law; the effect of the enactment has therefore been to restrict the opera- tion of martial law in its application to the offenses named. The jurisdiction conferred by this Article upon military courts has been held by the highest judicial authority to be exclusive, not concurrent ' 12 Stat, at Lartre, 736. See, also, Acts of July 13, 1861, sec. 5, (12 Stat. -at Large, 257,) and July 31, 1861 (12 iUd., 284) ' The Article in its present form, however, is not directly traceable to the correspond- ing provision of the British Code which it so closely resembles, but is a " part of an Act containing numerous provisions for the enrollment of the national forces, * * * having for their object to secure a large force to curry on the then exisiing war, and to give effi- ciency to it when called into service. It was enacted not merely to insure order and discipline among the men composing those forces, but to protect citizens not in the mili- tary service from the violence of soldiers. It is a matter well known that the march even of an army not hostile is often accompanied with acts of violence and pillage by straggling parties of soldiers which tlie most rigid discipline is hardly able to prevent. The offenses mpntioiied are those of most common occurrence, and the swift and summary justice of a military court was deemed necessary to restrain their commission," Cole- man m. Tennessee, 97 U. S., 509. In the same case' it was held that the criminal courts of the loyal States had concurrent jurisdiction with military courts for the trial of the several offenses named in the Article, but that when the Federal forces were in the enemy's country military tribunals had exclusive jurisdiction for the trial of offenses committed by persons in the military service of the United States. TEE ARTICLES OF WAB. 441 merely with that of the civil tribunals.' In framing a charge ander this Article, it will not in general be essential to allege in connection with the date of the ofEense, or to show by evidence, that the act was committed at a time of war, etc. ; this being a fact of which a court will ordinarily properly take judicial notice.' Where a sentence adjudged by a court convened by the authority of this Article imposed a punishment of less severity than that provided for the same offense by the law of the State in which the ofEense was committed (as imprisonment where the law of the State required the deach-penalty), it has been held that such a sentence was unauthorized and inoperative. Biv t though the punishment must not be "less," it may legally be of I ^ greater severitv than that provided bv th e local statute.' ~~~ In imposing punishment the court should be governed by the local law (so far as is required by the Article), although the offense was committed in a state whose ordinary relations to the general government had been suspended by a state of war or insurrection.' Arson. — Arson is the malicious and willful burning of t he house of ano ther.' It was punishable capitally at common law, being an offense not " against property merely, but one affecting the security of the dwelling; and it is still so punishable when committed upon territory within the exclusive jurisdiction of the United States.' The intent, which constitutes an essen- ' Coleman vs. Tennessee, 97 U. S., 513. And see People vs. Gardiner, 6 Parker, 143; IG. 0. 29, Dept. of the Northwest, 1864 ; do. 32, Dept. of Louisiana, 1866. But see Dig. /J. A. Gen., par. 87. Dig. J. A. Gen., 49, par. S; People m. Gardiner, 6 Parker, 143. ' Ibid.i par. 3. Held (November, 1865) tliat military courts were still empowered to exercise the jurisdiction conferred by this Article, the status belli not having yet been declared to be terminated eilher by the Executive or Congress. A court-martial of course could have no authority whatever to decide whether the war was ended. It is the better practise, however, to allege in the specification the existence of a State of War at the time of the commission of the ofEense. Ibid., par. 4. See the application of this principle to tlie fact of the existence of the late War of the Rebellion, in Justice Field's charge to the grand jury in United States m. Greathouse, 4 Sawyer, 4o7. 'Dig. J. A. Gen., 49, par 5. That the Southern States during,the late war were at no time out of the Union, see While vs. Hart, 13 Wall., 646. *i Blackstone, 218; 2 East P. C.,, 1015; Coke 3, Inst., 66; I. Hawkins P. C, 137. ° This offense is defined in the Kevised Statutes in the following terms : Every person who, within any fort, dock-yard, navy-yard, arsenal, armory, or mag- azine, the site whereof is under the jurisdiction of the United Slates, or on tlie site of any lishthouse or other needful building belonging to the United States, the site wliereof is under their jurisdiction, willfully and maliciously burns any dwelling-house or man- sion-house, or any store, barn, stable, or other building, parcel of any dwelling or mansion-house, sliall suSer death.* Every person who, in any of the places mentioned in the preceding section, mali- ciously sets fire to or burns any arsenal, armory, magazine, rope-walk, ship-house, ware- house, blockhouse, or barrack, or any store-house, barn, or stable not parcel of a dwelling-house, or any other building not mentioned in such section, or any vessel built or begun to be built, or repairing, or any lighthouse or beacon, or any timber, cables, * Section 5385, Bevised Statutes. 442 MIUTABT LAW. tial element of the offense, must be positive in character, as is evidenced by the descriptive words of the definition " willf ul and malicio us," and an act of burning not accompanied by such an intent would constitute some form of criminal trespass, or a statutory offense of lesser degree than arson.' For this reason, also, the element of intent cannot be replaced by negligence or mischance." "Where, however, the burning is wilful, malice is presumed from the deliberate character of the act.' To constitute arson at common law, there must be an actual burning of some part of the house ; but it is not necessary that any part of the house be actually consumed.' It is suflS- cien t if th e wood of the house be charred in a single place, so as to destr oy — ^ its fibre.' Assault and Battery. — The offense of assault and battery is composed of the two elements named, which, taken together, constitute the complete offense. An assault is an attempt wit h forsfi_aa.d-Sid£BSe t o do corpo ral i_nmry to another, as^y striking "at him with a weapon.' " The laying of a hand upon another, or seizing his clothing, if done in friendship or for a benevolent purpose, is not an assault; but if the act is done in anger or in a rude and insolent manner or with a view to hostility, it amounts not only to an assault, but to a battery. Even striking at a person, though no blow be inflicted, or raising the arm to strike, or. holding up one's fist at him, if done U- >, / in anger or in a menacing manner, are considered by law as assaults."' V_/-- 1- — ^/ Battery is the unlawful beating or wounding of another.' A battery, from the nature of the offense, includes an assault, and is therefore charged as *' assault and battery " ; but there may be an assault without battery, which ia regarded by the law as a criminal offense. Assault and Battery with Intent to Kill. — The crime over which juris- diction is conferred upon courts-martial by this Article is not that of assault and battery simply, but an aggravated form of that offense, described in the rigging, or otlier materials for buildiag, repairing, or fitting out vessels, or any pile of wood, boards, or other lumber, or any military, naval, or victualing stores, arms, or * otlier munitions of war, shall be punished by a fine of not more than five thousand dol- lars and by imprisonment at hard labor not more than ten years.* Everv person wbo maliciously sets on fire or burns or olheiwise destroys any vessel of war of the United States afloat on the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty jurisdiction ot the United States, and out of the jurisdiction of any particular State, shall suffer death. f ' 1 Bishop C. L., § 559; 3 ibid., g 14; Coke. 23 Inst., 67: 2 East P. C, 1019. » Brown m. State, 53 Ala., 345; People va. Fanshawe, 137 N. Y , 68. ^Mary'cs. State, 24 Ark., 44; State ®s. Sandy, 3 Ind., 570; People vs. Butler, 16 Johns.. 203; Com. m. Van Scherick. 16 Mass., 105. ■• People m. Haggerty. 46 Cal , 354. ^ U. S- vs. Hand, 3 "Wash., 435; State vs. Morgan, 8 Iredell, 186; State vs. Bradley, 34 Tex 95 «U.''S. vs. Onega, 4 Wash., 531: U. S. vs. Kidman, 8 Cr. CO., 435; People va, Isla«, 27 Cal., 680; Smiih ts State, 39 Miss., 531; Lavvsou vs. State, 30 Ala., 14. '"Wharton Law. Diet.; II. Bishop, Crim. Law, 70-72. * Sec. 5386, Revised Statutes, t Sec. 5387, ibid. THE ARTICLES OF WAR. 443 statute as " assault and battery with intent to kill." The specific intent ss described may be express, as shown by the circumstances attending the commission of the assault, or, like the malicious intent in murder, " may be inferred from the character of the assault, the use of deadly weapons, and , / other attending circumstances." ' T he proof under a charge of assa ult with ///, i ntent to kill miist be such as to sho w tha t, if death had been caused by the / '^ a gsault, the assailant w ouldJiaKe J3£aa gailix_of., murder." * Wounding, by Sliooting or Stabbing, with an Intent to Commit Murder. — This offense, like that last discussed, is an aggravated form of assault and battery ; the aggravation depending upon the character of the weapoqs used and the amount of injury inflicted. To warrant a conviction of this oflense the bodily injury mast have been inflicted in one of the particular methods set forth in the statute; an injury inflicted by any other means than shooting or stabbing, or with any other instrument than a fire-arm or cutting weapon, would be chargeable as an assault and battery with intent to kill as above described. The evidence must also be such as would have warranted a conviction for murder, as distinguished from manslaughter merely, had death resulted from the assault." Burglary. — Burglary, at the common law, is the breaking and en tering of a dwelling- brni,Rft b y Tii p^ht with intent to c ommit afelony therein, w hether such feloni.QU sJja^aB.tJieL£xecated or not. Thebireakmg is either actual, as where the person makes a hole in a door or opens a window, or in law, (constractive) as where he obtains an entrance by threats, or fraud, or by collusion with some one in the hoase.* I n the United States the Unglish definition of burglary has been ^s^jarjno dified_tg^ statute as. to in- clude offenses comrnitted by day as_w_ell as by mght j^and i n other buildings tha n__ dwelling-houses ; and various degrees of the offense have also been establi.ghed^°._ To constitute burglary there must be a breaking, removing, or putting aside of some part of the dwelling-house which is relied on as a security against intrusion. A door or window left open is no such security. But if the door or window be shut, it need not be locked, bolted, or nailed; a latch to the door, or the weight of the window, being sufficient. The outer door being open, entering and unlatching, or unlocking a chamber door, is burglary.' The raising a window-sash which was down and closed, and ' Wivlls vs. State, 90 Ala.. 619. = State fs. Reed. 40 Vt., 603; Hall m. State, 9 Fla., 303. 'Meredith i>s. State, 60 Ala., 441; Stopp vs. State, 3 Tex. App., 138; People m. Devine, 59 Cal., 680. ■•Sweet Law Diet., U. S. ns. Bowen, 4 Cr. C. C, 604. Larceny may be a lesser inrluded offense where burglary with an intent to commit larceny is charged. TJ. S. vs. Dixon, 1 Cv. C. C, 414; U. S. m. Read, 3 Or. O. C, 198; State vs. Wilson, Coxe, 441; Com. vs. Newell, 7 Mass., 347; Dig. J. A. Gen., 207. ' Archbold Orim. Law, 1069. 'State vs. Bowen, 13 Ind., 244; State vs. Reid, 20 Iowa, 413; Lyons ««. People, 68 111.. 271; Com. vs. Strapney, 105 Mass., 588. 1^ 1/ 444: MILITARY LAW. whicli was the only fastening to the window, and the entry of the party through the same into the house, is such a breaking as constitutes burglary." Breaking ; Time. — The act of breaking and entering necessarily involves the use of force. Such breaking may be actual or constructive. It is actual where the offender, for the purpose of getting admission for any part of his body, or for a weapon or other instrument, in order to effect his felonious intention breaks a hole in the wall of a house, breaks a door or window, picks the lock of a door or opens it with a key, or even by lifting the latch, or unlooses any other fastenings to doors or windows which the owner has provided." Constructive breaking is where a person by the use of deceit, artifice, or fraud secures entrance to a habitation with intent to commit a felony therein.' It is also essential that the offense should have been com- mitted at night.* The Building. — Every dwelling-house is a habitation in which burglary may be committed, and also all outhouses attached .to the dwelling and' intended for the comfort and convenience of the family." A portion of a building may come under this description if such portion be used as a dwelling, the rest being appropriated to other purposes.' It is not necessary that the premises be actually occupied, that is, that a person should be; actually in the building at the time when the burglary is committed.' ' Frank m. State, 39 Miss., 48.1. "Where iia entry to a building is effected tlirough a hanging window over a shop door, designed for light and ventilation, kept down by its own weight so flrraly as to be opened only by the use of force, and so situated that a ladder or something of the kind is necessary to reach it, is a sntficient breaking to con- stitute burglary. Dennis vs. People, 27 Mich., 151. An area or excavation in front of a cellar window covered and protected by an iron grating is to be deemed a part of the cellar, and the raising of the grating is a breaking and entering within the statute of Micliigan. People vs. Nolan, 33 .Mich., 329. So, also, as to entering by getting down a chimney. Com. m. Stephenson, 8 Pick., 354; State vs. Willis, 7 Jones, 190. And so as to the removal of a plank forming part of partition-wall, the plank being loose and consti- tuting no part of the freehold. Com. vs. Trimmer, 1 Mass., 476. Burglary at common law is the breaking and entering of a dwelling in the night-time with a felonious intent. Where a soldier was brought to trial uporua charge of " bur- glary," with a specitication setting forth that he entered the quarters of an otflcer in the night through an open window with intent to steal, held that, although the offense d-scribed was not a burslary in law — the essential element of a breaking being wanting — the charge and specification, taken together, made out a sufficient pleading of a dis- order to the prejudice of good order and military discipline under the 63d Article of v:ir.* And similarly AeM of an offense charged as " burglary," but described, in the specification as consisting in the breaking and entering of a post-trader's store in the day- time Dig. J. A. Gen., 207. ' II. Kussell on Crimes, 2 ; Com. vs. Merrill, Thach. dim. Cases, 1 ; Ray vs. State, 68 Ala., 381: II. Bishop C. L., 91-100. " State vs. Johnson, Phil. (IST. C.) 186; State vs. Mordecai, 68 N. C , 307; State vs. Henry, 9 Iredell, 403; People vs. Boujt-t, 2 Parker, 11; 1 Hale P. C, 553. *In the law respecting burglary this condition is fulfilled where there is not daylight enough to discern a face; actual obscurity is not necessary. 4 Black. Com., 234. It will not avail an accused person that there was enough light from the moon, street- lamps, and buildings, aided by snow, to discern the features of another person. State vs. Morris, 47 Conn., 179; II. Bish. C. L., 101-103. 5 Russell on Crimes, 15; II. Bish. C. L., 104-108. « Ibid.; II. Bish. C. L., 104, 105. ' State vs. Reid, 80 Iowa, 518; State vs. Williams, 90 N. C, 724. • See. Gen. Ct.-niartial Orders, No. 205, A. G. O., 1876. THE ARTIOLMS OF WAR. 445 The Intent. — The intent in the breaking and enter ing^niuBt be to C^^A^&C commit felony, that is, to commit larceny, robbery ,^_ajsoiij_^or^ some other / y'' crime amounting to i'elonymthe jurisdiction within which the offense i§/24>*^/ . committed; and such intent must be alleged m the charges. It is no t ^f _ n ecessary, hoTve ver, that the_iatept-?hp4il4.jM,j;a,,,be£n_ carried into effect. JiS The intent will in general be proved from the circumstances attending the^^^iai^C commission of the offense. Whef e no such in tent can be established the act iJ^ of forcible entry constitutes a trespass. _ Murder — Degrees. — M urder \% the wi llful kill iM- of. .^,,J^u™a'P_^^ the peace of the counfry, with malice aforethought e ither express or i mpUeel.' A lthougli ihe'SeBxations of murder differ somewhat in Hie sey'eral States, there is general concurrence as to pr emeditation or mali ce afore- though t being an pssp.ntj a ] jjigr edient of the, offense — that is, that there was a deliberately cherished intention to cause death or to inflict grievous bodily harm, or such reckless disregard of the consequences of a wrongful act as to warrant the inference of such an intention. There is also some difference as to the kind or amount of evidence necessary to establish premeditation; but it may be said, in general terms, that the malice aforethought may be established by independent testimony or may be inferred when "the fact of killing is proved by satisfactory evidence, and there are no circumstances ' State ««. Eaton, 3 Harringt,on, 554; Bell M State, 48 Ala., 684; State »«. Lockhart, 34 Ga., 430: Com. m. Doliei-ty, 10 Cu.'sh., 52; Barber m. State, 78 Ala., 19. 2 U. S. TO. Outerbrldge, 5 Sawyer, 620; U. S. ns. Carr, 1 Woods, 480; U. S. m. King, 34 Fed. Rep., 302; U. S. m. Meagher, 37 ibid.. 875. Murder at common law is " the unlawful killing by a person of sound memory and discretion of any reasonable creature in being and undt-r the peace of the State, with malice aforethought either express or implied." In many of .the States t'.vo or more degrees of murder are now distinguished by the statute law; murder in the first degree — generally defined as a killing accompanied by express malice, or a deliberate unlawful intent to cause the death of the particular person killed— being ordinarily alnne made capital. Dig J. A. Gen., 524, par. 1. See, also, Coke, Inst., 47; 4 Bl. Com., 95; 1 East P. C, 214; 1 Russell Cr., 482; 1 Gabbett, 454; 2 Whiirlon Cr. L., § 930; 3 Greenl. Ev., § 130; Commonwealtb vs. Webster, 5 Cush., 304; G. O. 23, Dept. of Cnlifornia,*1865 (Remarks of Maj.-Gen. McDowell). "Murder, originally," says Foster (p. 302, citing Bracton " de murdro"), was "an insidious secret assassination; occulta occisio, nulla sciente aut mdente." Now, secrecy in the commission of the act is significant only as evidence of legal malice. Dig. J. A. Gen. 524, par. 1. Where a soldier, while a superior acting in the line of his duty was attempting to arrest him for a grave breach of discipline, discharged his loaded musket at the latter with intent to kill him, but, missing him, killed a soldier standing near, ?ield that the crime committed was clearly murder. Dig. J. A. Gen., 524, par. 3; Angell vs. State, 36 Tex., 543. The taking of the life of a prisoner of war when not concerting an escape or engag- ing in any violence or breach of discipline justifying such an extreme measure is as fully murder as could be any homicide committed with deliberate malice in time of peace* Dig, J. A. Gen., 534, par. 3. Where, in a case of an officer charged with the murder of a soldier, it appeared that the liilling was done with a sword properly worn as a side-arm, held that its employment did not justify the same presumption of deliberate intent to kill which the use of a deadly weapon authorizes in cases in general. Ibid , 535, par. 4. » While it is lawful to kill an enemy " in the heat and exercise of war," yet " to kill such an enemy after he has laid down his anus, and especially when he is confined in prison, is murder." State vs. Gat, 13 Minn., 311. 446 MILITARY LAW. disclosed tending to show Justification or excuse, and there is nothing to rebut the natural presumption of malice.' In some of the States the offense of murder is divided into degrees, depending upon the kind and amount of malice shown, as tending to aggravate the crime and to exclude considera- tions of j astifi-cation or excuse. The distinction, wherever it exists, is statutory , not being recognized at the common. l aw. I Manslaughter. — Manslaughter is the ynlawf ul killina; of a human bein g rL^— rittio^^'' nialice, exp ress or inij)lied. Tt may |;^^ YOlHTltiPi^]" "'' ^""^"Vntap; \^Z--f'^ /fi'is voluntary when committed with a design to kill, under the influence of sudden or violent passion, caused by great provocation, which the law considers such a palliative of the ofEense as to rebut the presumption of malice which would otherwise arise." It is involuntary when committed by accident or without any intention to take life." " The crime of man- slaughter is involved in that of murder; and so if a jury, in a prosecution for murder, finds that the homicide was without malice, they may find the defendant guilty of manslaughter alone." * Manslaughter, at common law, is distinguished from murder by the absence of malice aforethought. The State statutes have generally consti- tuted degrees of the offense of manslaughter as of murder, a different measure of punishment being assigned to each degree. The.law.s of-the / Unit ed States, though prescribing different punishments for manslaughter „-p' / u nder different circum stances, recognize no discriminations of "^a3ei in ' eitlmi- jnanslaughter or murder.' ' ~ This crime, when its commission by an officer or soldier affects directly f the discipline of the service (as where the person killed is another officer or ^ soldier, and the killing occurs at a military post or while the parties are on ,/^i active service), may be taken cognizance of by a court-martial, in time of .^ 'peace, under Article 63, as "conduct to the prejudice of good order and y ■ ' military discipline. ' ' ' jf ' '■ » Com. vs. Webster, 59 Mass., 306. ° Mere provocative words, however aggravating, are not sufficient to reduce a crime from murder to manslaugbter. Allen «s. IJ. S., 164 U. S., 492. 3U. S. M. Outerbridge, 5 Sawyer, 620-635. See, also, Sections 5339 and 5341, Revised Statutes, and Act of March 3, 1875 (18 Stat, at Large, 473). * U. S. vs. Carr, 1 Woods. 480, 487. ' Dig. J. A. Gen., 524, par. 1. « Ibid., 485. Where a soldier, confined with other prisoners in a guard-house in time of peace, was under the influence of liquor and noisy, and continued to be noisy and disorderly though repeatedly ordered by tbe oflicer of the day to keep quiet, and was finally struck or thrust in the breast by llie latter with his sword and mortally wounded so that he presently died ; and it did not appear that there was any danger of mutiny or serious disturbance on the part of the other prisoners present at the time, — held that the evidence established no sufficient justification for a resort by the officer to such an extreme proceeding, and that his conviction by court-martial of " manslaughter to the prejudice of good order and military discipline," and sentence of dismissal, were war- ranted and proper. An officer has no right to take the life of a soldier, nor to commit a battery upon him with a dangerous weapon, except in a most aggravated case ; as in a case of riot, rescue, or mutiny, violent resistance to superior authority, escape, or refusal to obey a lawful order requiring instant obedience — when no other but such extreme TEE ABTIGLE8 OF WAR. 447 ./ Homicide. — Homicide is a gener ic term embracing every mode by which ^ theJiEeLfli ^ne manJ§ , ):aken _bY_aaotber.'~ (Jriminal ox felomouTKomirAde', which has already been discussed under the heads of murder and man- slaughter, consist in the unlawful taking by one human being of the life of another, in^nch a matinejL lhat he dies .within the space of a Year and a day f rom thfi time of the p ;iv'"ff "^ ^'^^ mortal wound. " But there are circum- stances -in which the taking of human life is one of the high duties of persons in office ; such is the case, for example, when the life of a criminal is taken by an ofiBcer of the law, in execution of a capital sentence lawfully imposed by a competent tribunal ; or where the life of an enemy is taken, in a time of public war, by a duly authorized combatant, in the actual military seryice of a belligerent. Although this duty is not to be sought, its perform- ance, like that of all others, is truly commendabte and should never be made the ground of reproach; indeed, its performance by a soldier in the defense of his country is highly praiseworthy. Of course, in the circumstances above set forth, the force^ which caused death was not unlawful, and the taking of life is, for that reason, not punishable. So, too, as will presently be seen, it is lawful to resist, by whatever force is necessary, one who is attempting to commit a felony; and the same is true when one causes death in the exercise of his right of self-defense. The takin g of human life, j/^/ therefore, is-nQii..a1, ways a.pr^mJMlJ'g.t' ^.^^..y.^gg: '^"^^"'t^j.si'^^^ i n characte r r^ ma y be either 'fustif.abU or e.a^.r.u. U. S. m. Wiltburser, 3 Wash., 531. » U. S. vs. Lee, 13 T. R., 816 ; Allen m. U. S., 150 U. S., 551 ; Stan- m. U. S., 153 U. S., 614; Piiriish vs. Com., 81 Va., 1, 14-16 ; Logue vs. Com., 2 Wriglit (Pa.), 265. « 2 East PI. Cr., 553 ; Ransom vs. State. 22 Conn., 156 ; U. S. vs. Dufiy, 1 Cf. C. C, 164; U. S. vs. Mason, 8 Blalch., 360 ; U. S. vs. Sims, 4 Cr. C. C, 618. * State TO. "Wisdom, 8 Porter, 511 ; State vs. Jackson, 65 N. C, 305 ; Eckels vs. Stale, 20 Ohio, N. S , 508 ; Com. vs. Berry, 99 Mass., 428 ; People vs. Seklen, 37 Ciil. 51. ' Dodd vs. Hamilton, 12 Taylor, 81; State vs. Hawkins, 8 Porter, 461 ; Com. m. Low, Thach. Crim. Cases, 477; U. S. vs. Durkee, 1 Wall., 196. " Dig. J. A. Gen., 67, par. 2. A soldier, contemplating desertion, borrowed from another soldier, on the day of his absenting himself, a blouse, which be thereupon pro- ceeded wrongfully to dispose of. Held that if, as was quite evidently the ('act, he had, at the time of borrowing, the intention to appropriate, he was chargeable with larceny, since the owner, in lending, consented to part with the possession only, not the property. Ibid., 467, par. 3. A soldier was charged with the larceny of a certain sum of money in currency from the post-trader's store. At his arrest a sum in currency of about the same amount, but not capable of identification as the same money, was found on his person, and, being ■claimud by the trader was turned over to him. The soldier was then tried and acquitted. Held that the trader was legally liable to be called upon to refund the amount received. Ibid., par. 3. Where a State statute imposed the disability of loss of the right of suffrage upon persons convicted of larceny, held that the conviction intended was conviction by a civil court, and that a conviction of this crime by a court-martial (convened withiu the State) would not work such disability; or — to enable the soldier, upon his discharge, to vote in the State— require a pardon by the President. Ibid., par. 4. Held that grass cut for hay upon a military reservation was in law, at least if not at ■once removed, personal property, so that a person wrongfully cutting such grass and .allowing it to remain till it became hay, or for any material period before asportation. u 450 MILITARY LAW. Eobbery. — Rohi sn/ is the Jglpnions taking of _goods_from the person of '"~" another, or in h is jg^resence, bY.jifllence or by putting hi m in fear, an d JZ^ 1 ^.gainst t^ jp win ' Robbery is thus seen to be an aggravated form of larceny ; \ the aggravation consisting in the taking of property f rom the person of its owner by Yiolence or intim idabion. The offense, as to its essential elements, is the same as larceny ; but there must be in addition some actual violence inflicted upon the person robbed, or such demonstrations or threats, and under such circumstances, as to create in him reasonable apprehension of bodily injury. It is sufficient in this offense that instead of actual violence the wrong-doer creates in his victim a reasonable apprehension of it, and thus secures his object.' J Embezzlement. — Em bezzlement is a species of larceny in th e nature of a ' A / crimin al breash of trust, and consists in_the fraudulent conversi^n^of prop- - — --T^ /'erty to his own use by an agent, clerkj_servant, or in general by any person 9iCtingin a fiduciary capacity. In order to constitute the crime, it is neces- ^ sary that the property embezzled should have come lawfully into the hands of the embezzler, and by virtue of the position of trust he occupies in rela- tion to the person whose property he takes.' In this respect it differs from the crime of larceny, in which the property is unlawfully taken and retained.* The fiduciary relation which is essential to the offense of embezzlement is sufficiently expressed by the averment that the property was delivered to the defendant upon the trust and confidence that he would return it to the owner on demand. A fraudulent c onversion to the de fendant's own use would be an enibezzlemen t whether ■dsataad.JCexe mad e or not, and such demand therefore need neither be averred nor proved.' The charges should also set forth that the defendant was the officer or agent of the United States, or the clerk or servant of some person or corporation, and that the money or property embezzled came into his possession by virtue of such employment. As the offense involves fraudulent conversion, that is, as there must be a conversion or change from a lawful to an unlawful possession, the lawful object for which the money or property was entrusted to the defend- ant must also be set forth and described. Ownership should be averred ; such ownership being in general in the United States, or the person toward was cliaro-eatle wilh a stealing of property of the United States under the Act of March 3 187r>, c°144, which makes such stealing a felony punishable by fine and imprisonment. Dig. J.' A. Gen., 466, par. 1. ' II. Bishop, Crim. Law, g§ 1156, 1166. ' II. ibid., 8g 1166-1176 tt , ■ o td . .«, ^ ' Doiid m Hamilton, 3 Taylor, 31 ; State «s. Hawkins, 8 Porter, 461 ; Com. vs. Low, Thach. dim'. Oases, 477 ; U. S. vs. Durkee, 1 McAllister, 196. ,^ ^ ^ ^, ■> Com «s Hussey, 111 Mass., 432 ; Cora. vs. Buttenck, 100 Mass., 1 ; Com. vs. Kmg, 9 dishing 384 The offense, wherever it exists, is statutory, being unknown to the common law. The scope of the offense of embezzlement has been considerably extended, by Federal statutes, in its application to certain unlawful acts respecting the public moneyand property committed by public officers. 6 Com. vs. Hussey, 111 Mass., 433 ; Com. vs. Tuckerman, 10 Gray, 173. ^ ^ ^ THE ARTICLES OF WAB. 451 ■whom the fiduciary relation exists. Where, however, the nature of the relation is such as to have made it the duty of the accused to carry or trans- porb the property from one person to another with a view to a transfer of ownership, or where the embezzlement took place while in transit, such ownership may be alleged in either party to the transaction.' The fraud- ulent conversion may be consummated in any manner capable of efEecting it; and its commission is a matter of fact, and not of pleading, when the indictment charges that the defendant did embezzle, fraudulently misapply, and convert to his own use the property entrusted to him." Sta tutory Embezzle ments. — The Eevised Statutes of the United States contain a number of statutory embezzlements, the offense in most cases having to do with certain wrongful or prohibited acts committed by disburs- ing officers in connection with the custody or disbursement of the public funds.' The Act of March 3, 1875, contains the requirement that " p,ny person who shall.jembezzle, stealj_gr purloin any; money, property, record, voucher, or'valuable thing what ever, of the moneys, goods, chattels, records, or property of the [Jnited States, shall be deemed guilty of felony, and on con- viction thereof before the district or circuit court of the United States in the district wherein said offense may have been committed, or into which he shall carry or have in posssession said property so embezzled, stolen, or purloined, shall be punished therefor by imprisonment at hard labor in the penitentiary not_gsCfiedingfive__y2arSj or by^a fine not exceeding five thousand^ dollars, or ..both, ,at- thcdiscretion of , the court before JEhich, he shall be convicted.' The same statute also contains a provision to the e"ffecr"'tliat if any person shall receive, conceal, or aid in concealing, or have, or retain in his possession with intent to convert to his own use or gain, any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, which has theretofore been embezzled, stolen, or purloined from the United States by any other person, knowing the same to have been so embezzled, stolen, or purloined, such person shall, on conviction before the circuit or district court of the United States in the district wherein he may have such property, be punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor in the penitentiary not exceeding five years, one or both, at the discretion of the court before which he shall be convicted; and such receiver may be tried either before or after the conviction of the principal felon; but if the party has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against such ' Rile.y vs. State, 33 Texas, 763 ; Cora. m. Norton, 11 Allen, 110. ' Leonard ts. Slate, 7 Tex. App., 417. » See Sections 5488-5497, Revised Statutes ; see. also, ibid., §§ 3618-3652. * Sec. 1, Act of March 3, 1875 (18 Stat, at Large, 479). 452 MILITARY LAW. receiver that the property of the United States therein described has been embezzled, stolen, or purloined." ' The statute above cited confers upon larceny and embezzlement the quality of felony, and a person so convicted sufEers such penalties, attaching to that status, as are imposed or warranted by the laws of the United States. Receiving Stolen Goods. — This ofEense is defined in Section 5357 in the following terms: "Every person who, upon the high seas or in any place under the exclusive jurisdiction of the Unitea States, buys, receives, or con- ceals any money, goods, bank-notes, or other thing which may be the subject of larceny, and which has been feloniously taken or stolen from any other person, knowing the same to have been taken oi; s st^ yl^n. sha ll be punished by a fine of not more than one thousand dollars, and by imprisonment at hard labor not more than three years." The element of intent iu this ofEense is replaced by knowledge on the part of the accused that the goods received were stolen. The " knowing the same to have been taken or stolen " constitutes the guilty knowledge which is essential to a conviction of the crime above described. / Rape. — Rape is the violation or^ carnal knowledge of a woman, forcibly /and against'lier^wiH]^ "TSe offense must have been committed by a""ml,le 'person with requisite physical capacity ; for this reason a boy under fourteen is presumed to be incapable of its commission. In England the presumption of incapacity is conclusive; in some jurisdictions iu the United States it may be rebutted by testimony showing capacity. There must be want of consent on the part of the woman, and the ofEense may be committed upon the person of a prostitute. Girls under a certain age, which is regulated locally by statute, are held to be incapable of giving consent. The fact of penetra- tion is an essential ingredient of the ofEense, as is the use of force on the part of the ofEender. The force used may be either actual or constructive, but must be sufficient to accomplish the purpose.' Assault and. Battery with Intent to Commit Rape. — To constitute the aggravated assault here defined, the assault must be accompanied with the specific intention to rape; that is, to have carnal knowledge of the woman without her consent, and by the use of such force as should be sufficient to overcome such resistance as the woman could make.' The nature of the charge presupposes that the intent is not carried out. It is therefore necessary that the acts and conduct of the prisoner should be shown to be such that there can be no reasonable doubt as to the criminal intent. If these acts and conduct are equivocal, or equally consistent with the absence ' Sec. 2, Act of March 3, ISTi (18 Stat, at Lars^e, 474). ' Cliailes m State, 6 Eng., 389 ; Cato vs. State, 9 Fla., 163. s Cato vs. State, 9 Fla., 168 ; State m. Biirgdort, 53 Mo., 65 ; Strange vs. People, 24 Mich., 1. * Shields vs. State, 32 Tex. Crim. Rep., 502; Am. and Eng. Encyc. of Law, 2d Eu., vol. 3, pp. 973-975. TEE ARTICLES OP WAS. 453 of the felonious intent charged, then it is clear that they are insufficient to warrant a verdict of guilty.' Mayhem. — A t the coiai aoiuiaj£Jibe ofEense of mayhem consisted in the a'TJ]_gf.nTi1^,wfl]1'y "-"■^^ift1fir>tly d ^ j^ privlng another of the use of such olHis memheT^ as-m.iffh4-i:aft>ifl.iL-him„ ),eas ablflj. in. fig ti,ti,iTg, eithert o cLelend himsetf or anaoT hia-a da£raarjiL.L By statute in most of theStaJtes the scope^nhis offense has been extended sc^s to include all malicious injaries to the person, the original condition that the part injured should have been use- ful in fighting having been quite lost sight of. Before the Conquest sach offenses formed an elaborate and exbensive branch of the law, but the offenses were treated as torts rather than crimes. Some of the laws set forth with the utmost minuteness and particularity the compensation to be made for every sort of bodily inj ary. After the Conquest the offense of wounding seems to have been regarded rather as a crime tijan as a tort or civil injury, and to have been defined and punished as such." Although forgery and perjury are not enumerated in the 58th Article of War, they are defined ia connection with the offenses already described. Forgery. — J'orgen/i s the false ^ o r fraudul ent making or alt eration of an inst rument witli intent to defraud or t o prejudice the right j£„3ijj^th^. The ^ence of the offense is the intent to defraud, and to constitute forgery there must have been a person in existence at the time of the execution of the fraudulent instrument who was capable of being defrauded thereby. The offense may consist in the forgery of an instrument, as in the case of a check, note, or bill of exchange, or of a signature only, or of an instrument partly engraved and partly written, like a bank-note, or of an instrument wholly engraved, as in the case of a railroad or steamship ticket.* ^ > Com. m. Merrill, 14 Gray (Mass.), 415 ; Am. and Eng Encyc. of Law, 2d Ed., vol. 2, pp. 973-975 '' 4 Blackstone Com., 805 ; U. S. vs. Oskins, 4 Cnmch C. C, 98 ; II. Bishop Crim. Law, § 1001. ' III. Stephen's Hist. Crim Lnw, 108, and cases cired. Section 5348 of the Revised Statutes contains a statutory di-fiuition of this offense when committed on the high seas or at places within the exclusive jurisdiction of the United States. "Every person who, within any of the places upon the land under the exclusive jurisdiction of the United States, or who. upon the high seas, in any vessel belonging to the United States, or to any citizen thereof, maliciously cuts off the ear, cuts out or disables the tongue, puts out an eye, slits the no.se. cuts off the nose or lip, or cuts off or disables any limb or member of any person, with intent to maim or disfigure such person, shall be imprisoned at hard labor not more than seven years, and fined not more than one thousand dollars." ■• Stale m. Pierce. 8 Iowa, 231: State w. Tliompson, 19 ibid., 299; People rs. Brother- ton. 47 Ciil., 388; U. S. m. Jolly, 37 Fed. Rep., 108; Bi re Benson, 34 ibid., 649; U. S. vs. Moore, 60*ad!,, 738, 740. A. (lisbursins officer who pays out money of the United States upon vouchers that are forged wiil in general make himself liable for the ajnount paid. Thus where such an officer paid out public money upon tninsportalion requests addressed to a railroad company and accepted by it, which requests had been fraudulently prepared by a quartermaster's clerk who had forged the name of the quartermaster thereto, held that the disbursing officer was responsible for the amount paid. Dig. J. A. Gen., 434, par. 1. A paymaster drew his check in favor of a discharged soldier for the amount due him 454: MILITARY LAW. -^ It sometimes happens that signatures^ and, in some cases, entire instru- ments are forged to which na-^ali-tjf-of property attaches; to this class belong passes, permits in writings to_ be a^ent from a command, or other privileges of a merely personal character. Such conduct, while a serious military offense, does not conform to the definition of forgery, since the forged instrument cannot operate to defraud, or to prejudice the property rights of another. Like forg ery itself it should therefore be charged as a violation of the 62d Article of War. " Iter jury. —Perjury may be generally defined as false swearing, and includes the breach of the solemn sanction of an oath or the making of a false_Qath. Whena witness to whom a lawful oath has been administered iu a judicial proceeding swears falsely in a matter material to the issue, he is said to commit perjury. It is essential to the offense that the oath should have been duly administered by a person having authority to do so and in the course of a judicial proceeding.' In most jurisdictions there may be false swearing amounting to perjury in some forms of non-judicial proceed- ings. Such an offense, however, is strictly statutory in character, and is not included in the definition of the offense at common law. The false oath must be taken willfully, with some degree of deliberation, and with intent to impede or otherwise interfere with the due administration of justice. It must be taken positively and directly, and must in most cases relate to the existence or non-existence of a material fact; for if a man swears to what he believes or remembers, he is not in general guilty of perjury; but if he swears on finiil settlemeut. The payee indorsed tbe check in blank, and the paymaster then, according to a coininou practice, sub-iudorsed it, adding Ms official designation, merely for tbe purpose (though the indorsement did not so state) of identifying the sig- nature of the payee. The writing in the body of the check was then removed or altered and ihe check tilled in for a very much greater amount. The check thus raised was on the next day pieseuted to and paid by the Assistant Treasurer at New York. Held that while iu the hands of a borui-fide indorsee the liability of the paymaster would have been that of a regular indorser, parol evidence nut being then admissible to show that he indorsed merely for identification; * yet the loss in this case legally fell upon the Assist- ant Treasurer, whose liability was the same as that of a bank wliich pays a forged check in a case in which the forgery has not been facilitated by the negligence of the drawer. f Ibid., par. 2. ' Bishop Ciim. Law (7th ed.)/§ 1020 ; U. S vs. Ambrose, 3 YeA. Rep., 556. The offense is also defined in Section 5392 of the Revised Statutes in the following terms : " Every person who, having taken an oath before a competent tribunal, officer, or per- son, in any case in which a law of the United States authorizes an oath to be adminis- tered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribi'd is true, willfully and contrary to such oath slates or subscrilies any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dol- lars, and by iinprisonmeut, at hard labor, not more than five years ; and shall, moreover, thereafter be incapable of giving testimony in any court of Ihe United States until such time as the Judgment against him is reversed." See, also, U. S. vs. Passmore, 4 Dall., 873; U. S. vs. Bailey, 9 Pet., 238; U. S. vs. Wood, 14 Pet., 430; U. S. vs. Nickersen, 17 How., 204; U. S. vs. Clark, 1 Gallis, 497; U. S. vs. Kendrick, 2 Mass., 60. * Daniel on Negotiable Instruments, vol. i, p. 19. t Byles on Bills (Sharswood's Ed.), 337. THE ARTICLES OF WAR. 455 that he believes a fact to be true which he knows to be false, he is guilty of perjury. The fact sworn to should be material; for if such fact have no bearing upon the issue, the administration of Justice has not been affected injuriously and there has not been perjury. Subornation of 'pe rjur y is the off ense of procurin g another to take such a false oatFas constitutes perjury] Perjury in Military Practice. — Fa lse swe a ring by a witn ess before a miii tar y court is not perjury a t common^w,. nffxis it ^aie a.^pecific^ offense by"ahy of t he Articles of W^ T^But though perjury is not made a specific offense by the military code, false swearing by an officer or soldier before a court-martial is "conduct to the prejudice of good order and military disci- pline," and is cognizable and punishable as such under the general (62d) Article. And a charge of "perjary" in connectio n with a sp ecification setting forth a Ms8'^wieaifig^'''ffiolfarcourt-martial will constj , t B.te a sufficient allegattBH'of'Bn'o^^le' under this Article.' "Trwas°an"esseirEarprerequisite to a conviction of this offense at common law that the commission should have been established by the testimony of at least two competent witnesses. This to secure the preponderance necessary to overconie the reasonable doubt.* • The offense of subornation is defined in Section 5393, Revised Statutes, which pro- vides that "every person who procures another to commit any perjury isguMtyof sub- ornation of perjury, and punishable as in, the preceding section prescribed." See, also, U. S. vs. Bailey, 9 Pet., 338; U. S. vs. Moore, 2 Lowell, 233 ; U. S. m. Stanley, 6 McLean, 409 : U. S. m. Perdue, 4 Fed. Rep., 897 ; U. S. m. Mayer, Deady, 137 ; U,. S. vs. Smith, 1 Sawy., 277; U. S. vs. Coons, 1 Bond, 1. ^ Perjury as a criminal offense against the United States is defined in Section 5893, Revised Statutes. In England false swearing before a court-martial appears to be re- garded as being indictable as perjury at common law. See Queen vs. Heane, 4 B. & S. 947; also Clode, Military Forces of the Crown, vol. i. pp. 169, 552-4. A special statutory provision making a false oath before a naval court-martial indict- able as perjury was contained in the Articles for the government of the navy estab- lished by the Act of July 17, 1863, C 204, and appears still to subsist in the 41st of the present Articles and Sec. 1033, Rev. Sts. There is no statute relating specifically to false swearing before a court-martial of the army. The general provision, however, of Sec. 5392, Rev. Sts., providing for the punishment of perjury, is broad enough to in- clude a case of false swearing as to " material matter " before any court-martial equally as before a civil tribunal of the United States. Thus a military person guilty of making a false material statement under oath as a witness upon a military trial would be amen- able not only to a military charge, but apparently also to indictment in theU. S. District Court. » Dig. J. A. Gen., 585, par. 1; ibid., 407, par. 1. * Ibid., 586, par. 3. Held that a recr\iit who made a false statement as to his age, in a sworn declaration, was not indictable for perjury under Sec. 5392, Rev. Sts. There is no law requiring the recruit's declaration as to his age to be under oath. And in the usual form of the oath of enlistment prescribed by Article 3, the statement of age is not properly a part of the oath, but matter of description only. Ibid., par. 3. Where the prosecution introduced but one witness to prove the falsity of the testi- mony under the charge of perjury, and that witness was contradicted as to a material point, advised that the conviction and sentence adjudged by the court be disapproved on account of failure of proof. Ibid., 407, par. 3. Under this charge testimony which consists of answers to questions going to the credit of a particular witness, or pf other witnesses whom he corroborated, is " material to the issue." Ibid., par. 1. v 456 MILITARY LAW. False swearing before a court-martial not being perjury at common lav, the rales as to the character and amount of the evidence necessary to sustain an indictment for perjury, though they may profitably be referred to, need not govern the proof of the military oilense. Such ofEense will ordinarily be safl&ciently established by the written record (or, in its absence, by secondary proof) of the testimony as given, together with any reliable and satisfactory evidence that the same was knowingly false.' Abxicle 59. When any officer or soldier is accused of a capital crime, or of any offense against the person or property of any citizen of any of the United States which is punishable by the latvs of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detach- ment to which the person so accused belongs, are required, except in time of war, upon application duly made by or in behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending and securing him, in order to bring him to trial. If, upon such application, any officer refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in apprehending him, he shall be dismissed from the service. Article 18 of the British Code of 1717 required the commanding officer of any regiment to surrender to the civil authority for trial any officer or soldier under his command who had committed a crime punishable "by the known laws of the land." The Mutiny Act for the year 1718 contained the requirement "that any soldier accused of a criminal ofEense punishable by the known laws of the land should be given up to the civil magistrate by the commanding officer, under the penalty of his being cashiered for neglect or refusal." ' This requirement was coupled with the provision that " no person convicted by the civil magistrate should be liable to court-martial punishment, save that of cashiering, for the same offense." The provision appears in substantially its present form as Article 1, Section 2, of the British Code of 1774, as Article 1, Section 10, of the American Articles of 1776, and as No. 59 of the Articles of 1806. The clause making the piio- vision applicable in time of peace only was incorporated in the Article in 1863.= Purpose of the Enactment. — The Constitution of the United States, like those of the several States, recognizes, as a fundamental principle, that such military jurisdiction as is created by its authority is to be exercised in strict subordination to the civil powet.* The law also recognizes the fact that " Dig-. J. A. Gen., 586, par. 2. = Clode, Mil. Lnw. m, 54. ' Section 30. Act of March 3, 1863 (1 2 Stat, at Large, 736). * Dow m. Johnston, 100 U. 8., 169. This Article is a recognition of the general principle of the subordination of the military to the civil_ power, and its main purpose evidently is to facilitiite, in cases of offenders against the local civil statutes who hapneii to be connected with the army, the execution of those statutes where, as citizens, such THE ARTICLES OE WAR. 457 military persons constitute a class apart, and are subject to rules difEering in many material respects from those regulating the conduct of the general body of citizens. The military status, however, confers no special immani- ties upon members of the military establishment, who are in general subject to the laws in the same manner and to precisely the same extent as other citizens or inhabitants. Whoever, therefore, violates the criminal law of the United States or that of a State is subject to arrest, trial, and punishment therefor. If such offender be a citizen, the local law prescribes the methods of such arrest; if, on the other hand, he be a military person serving under the immediate command of a military superior, the 59 th Article of War prescribes a method of procedure in accordance with which his arrest must be effectied. In the application of this statute several questions may arise, which will be discussed in order. 1. The Article relates to a militaryperson wly,^at jhg,^time_t}ifi_ai^ sought, ^iS'sTm^i^eF^^^^^^^^^^c^^^^A^^^^jm&iieis not whether that command be stationary, as in the case of a post or camp, or movable, as would be the case of a column on the march. An isolated member of the military establishment (an officer on leave of absence, or an enlisted man on furlough, for example) who commits an offense may be arrested by the proper representative of the local authority whose law or ordinance has been violated.' 3. T he provisio ns of, the Jj;tiGle,araaMlicable to an officer or soldier who is charged vy ith a crim e or ofEeiise„j^'xbiftllhJ§JHH3Jshable TDyTEelta'ws-'of tfie land."' xh'Is term liai~¥eenheld to include not only offenses against the laws of a State, but violations of municipal by-laws and city ordinances; it does not extend, however, to offenses committed against the United States, or to offenses committed within territory over whicli the United States exer- cises exclusive jurisdiction." persons remain legally amenable to arrest and trial thereunder. Protection to military persons from civil arrest is not the object of tbe Article. Dig. J. A. Gen., 50, par. 1. ' Dig. J. A. Gen., 50, par. 1; ihid., 345. par. 3, 4. In Ex parte McRoberts, 16 Iowa, 600, 603, it was lield that the provisions of the Article apply only lo officers and soldiers while within the immediate control and jurisdiction of the military authorities, and therefore do not apply to a case of a soldier absent on furlough; but thnt such a soldier, pending his furlough, may be arrested in the same manner as any civilian. 2 0pin. Att.-Gen. of Nov. 36, 1894, ptiblished in Circular No. 15, A. G. O., Pec. 6, 1894; Dig. J. A. Gen., 50, par. 4; Ex parte Bright, 1 Utah, 145. This case, however, is regarded as going too far, in linlding that though a soldier may, without application to the military autliorities. be aro'eated and detained by the civil authorities. for the violation of a city ordinance, he may not be tried or punished bv the latter, but for that purpose must be surrendered to the military commander. Unless the offense of such a soldier directly prejudiced military discipline he could not be tried for the same at all by a military court; and if it did, he would be triable only for the breach of discipline, leaving him still amenable to the local law for the civil disorder. For exemption of enlisted men from arrest on mesne process, or in execution for debt in certain cases, in accordance with Sec. 1387, Bev. Stat., see White vs. Lowther, 3 Ga., 397; Moses vs. Willitt, 8 Strobhart(S. C), 210; Ray m. Hogeboom, 11 Johns., 433. The term "any of the United States," employed in this Article, held properly to 458 MILITARY LAW. 3. The Article requires •that^the_3P£licatioii shall be " duly made " and *'by or in~BeEaff~ol^"ffie'"p¥rfcyjnjiired..'', The cSmmanding "OfflCCTTTJefore surrendering the party, is entitled to require that the " application " shall be so specific as to identify the accused and to show that he is charged with a particular crime or offense which is within the class described in the Article. Where it is doubtful whether the application is made in good faith and in the interests of law and justice, the commander may demand that the application be especially explicit and be sworn to; and in general the preferable and indeed only satisfactory course will be to require the produc- tion, if practicable, of a due and formal warrant or writ for the arrest of the party." Procedure. — The commanding officer, before surrendering the party, is entitled to require that the " application" shall be so specific as to identify the accused and to show that he is charged with a particular crime or offense which is within the class described in the Article. Where it is doubtful whether the application is made in good faith and in the interests of law and justice, the commander may demand that the application be especially explicit and be sworn to; and in general the preferable and indeed only satisfactory course will be to require the production, if practicable, of a due and formal warrant or writ for the arrest of the party." The application required by the Article should be made in a case where the crime was com- mitted by the party hefore he entered the military service, as where it was committed by him while in the service.' In the former case a more exact identification may perhaps reasonably be required.* The provisions of the Article are applicable not only when the officer or soldier is accused of a crime or offense " which is punishable by the laws of the land," i.e., by the public law — statutes or constitution — of the particular State, but his surrender may be similarly demanded for the violation of a miunicipal ordinance.* The party should be surrendered upon proper application, though the offense be one of which a military court has jurisdiction concurrently with the civil courts; unless, indeed, the military jurisdiction has already duly attached (as by arrest, or service of charges with a view to trial) , in which oase the prisoner may be surrendered or not as the proper authority may determine. A soldier under a sentence, of CDixfinement imposed^ by iionxta- include any and all the political members of our governmental system, and to embrace an organized Territory equally with a State. Dig. J. A. Gen., 53, par. 9. See, also, par. 4, post. ' Dig. J. A. Gen., 51, par. 3 ; 2 Opin. Att.-Gen., 10. ' Ex parte McRoberts, 16 Iowa, 603-605. ' See G. O. 29, Dept. of the Northwest, 1S64, where it is remarked that there is an especial obligation to surrender the soldier where the crime was committed by him before entering the military service. •• 2 Opin. Att.-Gen.. 10. ^ Dig. J. A. Gen., 51, par. 4; Opin. of Att.-Gen. of Nov. 26, 1894. See Circular No. 15, A. G. O., of 1894. THE ARTICLES OF WAB. 459 martial cannot in general properly be surrendered nnder this Article. In ^^ '.such a cas e tlie ciyil authorities should r egularl^__^defer their application till the military punishment has been executed or remitted.' J ^^^y^„il^ I ■-■ i nln - I I m il ■ i i iii g' ii mum 11 11 1111 in m iiaii w ii 1 LU i Tm i i M Mu jiinT -r^^--'*" fciurrenders, under the Article, can lawfully be made only in accordance with its terms. " An officer or soldier accused as indicated by the Article, ihough he may be willing and may desire to surrender himself to the civil ■authorities, or to appear before the civil court, should not in general be permitted to do so, but should be required to await the formal application. " " The Article is directory, not jurisdictional. It does not limit the action io be taken by the military authorities to cases where the application is made by the party ; it may be made in his behalf. It does not place a soldier who has committed a crime and been indicted therefor beyond the reach of the ■civil power if the person injured does not apply for his surrender. In a case — one of murdei', for example — where there can be no personal application, the State properly takes the place of the individual. And so in all other •cases where an indictment has been found or a warrant of arrest has been issued the State, with which resides the jurisdiction and the power to prose- cute, may make the demand, and upon its demand it is the duty of the commanding officer to surrender the party charged.' The Article contemplates only cases in which an "officer or soldifer is accused," and has no application to civilians employed or resident at a military post.* Nor does it apply to the service by a sherifE of a subpoena on an officer or soldier to appear as^ a witness before a civil court. In such a case, indeedTlfie civil official should, as a matter of comity, apply first to the post commander"^ whether or not the post be within the exclusivejurisdiction of the United States. It will then be_for the commander, in comity, io facilitate th e service and to.i^u eJhenec_essary permit or order .iQ.£aable and cause the officer or Fijlrlipr tn nttpnd thf fonrt ' The several executive departments, and other instrumentalities of the Federal Government, being agencies of the same sovereignty, the Article is not applicable to ofEenses against the laws of the United States, or to offenses committed in places over which the United States has exclusive jurisdiction.' ' Dig. J. A. Gen., 52, par. 6. ^"Wbere a soldier, duly surrendered under this Article and allowed to go on bail, was thereupon returned to duty, field that it was within the spirit of tlie Article lor the department commander to instruct the commanding olBcer of such soldier to cause him to appear for trial at the proper time. Ibid. 2 Ibid., 53, par. 7. ' Ibid., 53, par. 10. In view of the obligation devolved by this Article upon officers of the Army, a post commander would properly be required to apprehend and hold for surrender to the civil authorities a soldier who, having been once surrendered under the Article, had escaped and returned to the post. Ibid., par. 8. See, also, for a similar case, G. O. 7, Dept. of the South, 1871. ■* Tbid., 54, par. 11. Soheld'ihat it did not apply to a case of a civilian (Chinese) laundryman employed and residing at a military post accused of a civil crime. While it would be equally desirable that the surrender should be made in such a case, such ;surrender would be a matter of comity, not of official duty under the Article. Ibid, ' IMd., 54, par. 11. " Dig. J. A. Gen., 53, par. 5. iw^^" 460 MILITARY LAW. The term "any of the United States," employed in this Article, properly includes any and all of the political members of oar governmental system, and embraces an organized Territory as well as a State. As the offenses for which surrender may be demanded are made such by the common law, or by statute in a State or Territory, the Article is not applicable to a case of an offense committed against the laws of the United States, as, for instance, the statutes prohibiting the introduction of liquor into the Indian country. Nor is it applicable to a case of an offense committed in a place over and within which the jurisdiction of the United States is exclusive.' SERVICE OF PEOCESS IN" GENERAL. The 59th Article of War provides a method of procedure in effecting the arrest of a military person charged with an offense against the law of a State or Territory; it contains no provisions respecting the general service of process, and is silent as to the service of process in civil as distinguished from criminal cases. This subject is regulated, in some cases, by the com- pact between the State and the general government, as expressed in the Act of the Legislature consenting to a particular purchase or ceding jurisdiction over a particular tract. If the right to serve process within the ceded terri- tory in civil and criminal cases arising within the State but without such ceded territory be reserved in the act of cession, then process in such cases may be served, and the service will be regulated by the laws of the State in whose name and by whose courts it is issued. It has already been seen that where there has been no cession of jurisdiction by the State its oflBcials have the same authority to serve the process and mandates of its courts, and its courts have the same jurisdiction over acts done and crimes committed within the military post as elsewhere in the State; the mere fact of owner- ship or occupation of the land by the United States having no effect to except it from the operation of the St.ite laws.' Service of Process in the Territories. — Service of process in the Terri- tories is analogous to similar procedure in the several States within lands over which exclusive jurisdiction has not been ceded to the United States. Where a military post or reservation is situated in a Territory the Territorial courts are authorized to issue process for the arrest of officers or soldiers of the command charged with crime, or to cite them to appear before them as defendants in civil actions, or to attach, replevy upon, or take in execution ' Dig. J. A. Gen., 53, par. 9. It is further lielil, in Ex parte McRoberts, 16 Iowa, 603. that the provisions of the Article apply only to officers and soldiers while within the iinmediiUe control and jurisdiction of the military authorities, and therefore do not apply to a case of a soldier absent on furlough; but that such a soldier, pending his- furlough, may be arrested in the same manner as any civilian. 2 Fort Leavenworth R R. Co. to Lowe, 114 U. S., 525, 537, 533 ; U. 8. vs. Cornell, 2 Mason, 60 ; Com ts. Clary, 8 Mass., 73 ; Mitchell vs. Tibhltts, 17 Pick., 398 ; Dig. J. A. Gen., 345, par. 3. THE ARTICLES OF WAR. 461 any property belonging to them within the posts, etc., not specially exempted from legal seizure. This for the reason that the courts in which is vested the judicial power of a Territory are not the courts of a sovereignty distinct from the United States, but are the creatures of Congress, being established by it directly, or indirectly by its authority through the Terri- torial legislature, under the provision of the Constitution ' empowering Congress "to make all needful rules and regulations respecting the terri- tory belonging to the United States." '" Thus while officials charged with the service of the process of such — as indeed ot any — courts would, in comity, properly refrain from entering a military post for the purpose of serving process therein, or at least from making the service, till formal permission for the purpose had been sought and obtained from the commanding officer, yet, on the other hand, officers commanding military posts in the Territories should certainly interpose no obstacle to the due service within their commands of the legal process of the Territorial courts.' Article 60. (1) Any person in the military service of the United States who makes or causes to be made any claim against the United States, or any officer thereof, knowing such claim to be false or fraudulent j or (2) Who presents or causes to be presented to any person in the civil or military service thereof, for approval or payment, any claim against the United States or any officer thereof, knowing such claim to be false or fraudulent ; or (3) Who enters into any agreement or conspiracy to defraud the United States by obtaining, or aiding others to obtain, the allowance or payment of any false or frauduleut claim; or (4) Who, for the purpose of obtaining, or aiding others to obtain, the approval, alloivance, or payment of any claim against the United States or against any officer thereof, makes or tises, or procures or advises the making or use of, any writing or ether paper, knowing the s tme to contain any false or fraudulent statement ; or ' Constitution of the United States, Art. IV, Sec. 3, par. 2. - i§ee Franklin m. U. S., and Rej'nolds m. People, in 1 Colorado Reports. ' " A Territory is not properly sovereign. It is an organiziition through and by means of which Congress for a time governs a particular portion of the country, lis rights are those which are set forth in the organic Act." 16 Opin. Att.-Gen,, ll.j ; Dig. J. A Gen., 739, pur. 1, 3, and 3. The power of Congress over the Territories is general and plenary, arising from the right to acquire them. It may legislate over them within the scope of its conslitu ional povifers in relation to the citizens of the United Stales, or it may confer a limited power of legislation over local subjects upon the territorial government created by its authority, but may annul such legislation at its discretion. It may create territorial courts, and may endow them with appropriate iurisdiction ; but such courts are in no .<^ense courts of the United States and form no part of its judiciil system. Mormon Church «s U.S.. 136 U. S., 1 ; Scott m. Sandford, 19 How.. 393 ; Ferris vs. Higley, 30 Wall., 375 ; Horn- buckle ts. Toombs, 18 Wall., 648 ; Davis ta. Billsland, idem; Pcott m. Jones, 5 How., 343 : Clinton cs Bnglebrecht, 13 Wall., 434: Frnnidin «s. U. S., 1 Col.; Reynolds ««. Peop'.e, md.; G. O.'SO, H Q. A., 1878 ; 7 Opin. Att.-Gen , 564. 462 MILITARY LAW. (5) Wfio, for the purpose of oMaining, or aiding others to obtain, the approval, alloiuance, 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, k?iowing such oath to be false j or (6) Who, for the purpose of obtaining, or aiding others to obtain, the approval, alloioance, or payment of any claim against the United States or any officer thereof , forges or counterfeits, or procures or advises the forging or counterfeiting of, any signature upon any writitig or other paper, or uses, or procures or advises the use of, any such signature, knowing the same to be forged or counterfeited ; or (7) Who, havhig charge, possession, custody, or control of any money or other property of the United States, furnished or intended for the military service thereof, knoivingly 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 j or (8) Who, being authorized to make or deliver any paper certifying the receipt of any jjroperty of the United States, furnished or intended for the military service thereof, makes, or delivers to any person, suck writing, without having full knowledge of the truth of the statements therein con- tained, and with intent to defraud the United States j or (9) Who steals, embezzles, knowingly and tvillfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or dis- poses of any ordnance, arms, eq^iipments, ammunitio7i, clothing, subsistence stores, money, or other property of the United States, furnished or intended for the military service thereof ; or (10) Who knowingly purchases, or receives in pledge for any obligation or indebtedness, from any soldier, officer, or other person ivho is apart of or employed in said forces or service, any ordnance, arms, equipments, ammu- nition, clothing, subsistence stores, or other property of the United States, such soldier, officer, or other person not having lawful right to sell or pledge the same, (11) Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court-martial may adjudge, or by any or all of said penalties. And if any person, being guilty of any of the offenses aforesaid, while in the military service of the United States, receives his dis- charge, or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not received such discharge nor been dismissed. Section 5, Act of March 3, 1901. (31 Statutes at Large, 951.) This Article, which was enacted during the continuance of the War of the Eebellion, creates a number of offenses against the United States, each of which involves actual fraud and an intent to defraud the public. The TEE ARTIGLES OF WAR. 463 several offenses named in the enactment are statutory in character, and each should be charged and proved in accordance with the definitions prescribed in the particular clause to which the ofEense relates. A statutory intent is alleged in several clauses, which must also be set forth in the charges, and established in evidence, in order to warrant a conviction under the terms of the Article. Fraudulent Claims. — Clauses one to six, inclusive, relate to fraudulent claims and demands against the United States and make each of the follow- ing acts an ofEense against the United States; (1) " Any person in the military service of the United States who makes or causes to be made any claim against the United States, or any officer thereof, knowing such claim to be false or fraudulent; or (2) " Who presents or causes to be presented to any person in the civil or military service thereof, for approval or payment, any claim against the United States or any officer thereof, knowing such claim to be false or fraudulent; or (3) " Who enters into any agreement or conspiracy to defraud the United States by obtaining, or aiding others to obtain, the allowance or pay- ment of any false or fraudulent claim ; or (4) " Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or against any officer thereof, makes or uses, or procures or advises the making or use of, any writing or other paper, knowing the same to contain any false or fraudulent statement; or (5) " Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, makes, or procures or advises the making of, any oath to any fact or to any writing or other paper, knowing such oath to be-false ; or (6) " Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, forges or counterfeits, or procures or advises the forging or counterfeiting of, any signature upon any writing or other paper, or uses or procures or advises the use of, any such signature, knowing the same to be forged or counterfeited." The claims referred to in the statute are " false and fraudulent," that is, they are wrongful demands for money alleged to be due for supplies furnished or for services rendered,' and are known to be such by the accused, at the time of their presentment. ' The offen-e known as the duplicating of pay-rolls, where it involves, as it generally does, a presenting or a causing to be pre-ented of a false or fraudulent claim agdiist the United States, is properly chargeable under th's Article Dig. J. A. Gen., 55, par. 1. Where an officer who had been sentenced to forfeit all pay due, but whose sentence had not yet been approved or published, presented pay accounts to the paymaster for his pay, and received the amount of the same, lield that he was not triable for the ofEense of presenting a fraudulent claim under this Article. Ibid., par. 2. The presenting of false and fraudulent claims for horses lost in battle, for recruiting 464: MILITARY LAW. Short Payments; Receipts in Blank. — Clauses seven and eight also make it a criminal offense on the part of any person (7) " Who, having charge, possession, custody, or control of any money or other property of the United States, famished or intended for the mili- tary 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 (8) " Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States, furnished or intended for the military service thereof, makes, or delivers to any person, such writing, without having full knowledge of the truth of the statements therein con- tained, and with intent to defraud the United States." The offense described in clause seven is that of " short payments," that is, payments of money less in amount than are called for in the receipts given therefor by creditors of the United States. The principle applies equally to property transactions, and impliedly prohibits the giving of blank receipts by officers of the army.' Clause eight makes a certain form of negligence in the verification of articles, or quantities, of property or stores received by an officer, in behalf of the United States, in pursaauce of a contract or agreement; such negli- gence consisting in the making or delivery of a paper certifying the receipt of property without having full knowledge of the truth of the statements .contained in such paper, and with intent to defraud the United States." Stealing, Larceny, Embezzlement, etc. — The ninth clause makes it an offense on the part of any person " 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." The offense of stealing, indicated in the 9th paragraph of this Article, expenses, and tor rewards for the arrest of deserters, held offenses within paragraphs 1, 2, and 4 of this Article. Dig. J. A. Gen., par. 3. Where a soldier, in order to procure his discharge from the service and the payment thereupon of a considerable amount not in fact due him, forged the name of his com- manding officer on a discharge-paper and a "final statement " paper, and presented the same to a pa3'master, lield that he was chargeable with offenses defined in the 2d, 4th, it of certain public funds consisting of the proceeds of a public sale of condemned quartermaster stores, an amount of 10 per cent, on the total of such proceeds, as a compensation for the services of such man as auctioneer at the sale, held that such payment was illegal and unauthor- ized and constituted an embezzlement of public money chargeable under the 60th or the 63d Article. Ibid., par. 20 Repeated false statements of the accused relative to the public moneys for which he was accountable are competent evidence going to sustain a charge of embezzlement under this Article. Ibid., 61, par. 23. ' Dig. J. A. Gen., 58, par. 13. THE ABTIOLEB OF WAR. 467 of "quartermaster's stores," "subsistence stores," "ordnance stores," etc' The application or operation of this Article is in no manner affected by the enactment of March 3, 1875, constituting embezzlement of public property a felony and making it triable by a United States court, such Act being a purely civil statute." Purchasing Articles of Equipment, etc. — Clause ten makes it a criminal offense on the part of any person " who knowingly purchases, or receives in pledge for any obligation or indebtedness, from any soldier, officer, or other person who is a part of or employed in said forces or service, any ordnance, arms, equipments, ammunition, clothing, subsistence stores, or other prop- erty of the United States, such soldier, officer, or other person not having lawful right to sell or pledge the same." ' This clause makes it unlawful to purchase, sell, or receive in pledge the articles of Government property therein named, and deprives all such trans- actions of legal validity which have not been effected in strict conformity to law. The penalty imposab le upo n conviction of a ny of the offenses named in the article is contained in clau se eleven which provides that 'such offenders shall, on conviction thereof 7 "be""pu"nisheJ T)y fine oTlmmison- ' Dig. J. A. Geii., 58, par. 14. » Ibid., 61, par. 23. Where an officer of the Quarlermaster Department used teams, tools, and other publie property, in his possession as sucli officer, in erecting buildings, etc., for the benefit of an association, composed mainly of civilians, of which lie was a member, held that he was properly chargeable with a misappropriation of property of the United States. And similarly held of a loaning by such an officer of public property (corn) to a contractor for the purpose of enabling him to fill a contract made with the United States through another officer. The fact that a practice exists in a post or other command of making a use (not authorized by regulation or order) of government property for private pur- po.ses, or of loaning it in the prospect of a prompt return, can constitute no defense to a charge for such act as an offense under this Article. Such practice, however, if sanc- tioned, though impioperlv, by superior authority, may be shown in evidence in mitiga- tion of sentence. Ibid., 59, par. 15. Where a quartermaster used temporarily with his private carriage a pair of govern- ment horses in his charge, held that he was not properly chargeable with embezzlement, but with the offense, under this Article, of "knowingly applying to his own use and benefit property of the Uniled States furnished for the military service." Ibid., 58, par. 12. 2 Held that under the concluding provision of this Article* a soldier might be brought to trial for an offen=e of the class .specified therein while held imprisoned, after dishonor- able discharge under a sentence imposed for another offense, provided, of course, the two years' limitation of Article 103 had not expired. Dig. J. A. Gen., 59. par. 17. In view of the words " in tlie same manner," employed in the last paragraiih of this Article, considered in connection with the 77th Article and Section 1658, Revised Statutes, held that a volunteer or militia officer or soldier could be tried, after his dis- charge from the service for a breach of this Article committed while in the service, only by a court composed in the one case of other than regular officers and in the other of mili- tia officers. Und., 60, par. 18. * Whether this provision, in subjectingf officers and soldiers discharged, mustered out, etc., and become civilians, to trial by court-martial in the same manner as if they were a part of the Army, is constitutional, is a question which is belicTOd not to have been judicially passed upon. Probably orig- inally inserted in tne Act of March 2, 1863, (from which the Article is repeated,) as in the nature of a Miormectsttrc, it was in fact relied upon as giving jurisdiction in but a small number of cases even during the war, and since that period no case is known in which the exceptional jurisdiction conferred has been taken advantage of. 468 MILITARY LAW. m ent, or by snch other panighineiit a i? a nOTrl:rTn'"'''i"T "'"Y atli"'^p[g And ifaay person, being guilty of any of the offenses aforesaid while in the military service of the United States^^ receives h[s_ discharge orTTidismfssed from~tTie servibe, he shall continue to be l[al?le,4o.be arres^e.d and hel d for trial and sentence by a court-martial, in the same manner and to the same extent~as if he had not received snch discharge nor been dismissed." This clause confers jurisdiction upon a general court-martial to try an offender, for an offense in violation of this Article, after his discharge or muster-out, provided the statute of limitations has not run at the date of the order for such trial. Aeticle 61. Any officer who i.i convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. This Article does not appear in any of the codes issued under the royal prerogative prior to the Mutiny Act. In its original form the Article con- tained the requirement that " in every charge against an officer for scandalous or unbecoming behavior the fact or facts whereon the same is grounded shall be clearly specified." Although the facts continued to be set forth in the specifications, the provision requiring that course had dis- appeared from the Article prior to the middle of the last century. The requirement in substantially its present form appears as Article 33, Section 15, of the British Code of 1774, as Article 31, Section 14, of the American Articles of 1776, and as No. 83 of the Articles of 1806. The words " scandalous and infamous," which had appeared in the earlier Articles and which, having been confused with the word " infamous " as used at the common law, had given rise to some conflict in interpretation, were omitted from the revision of 1806. Nature of the Offense. — This Article, like the 63d, is in form an appa- rent exception to bhe rule that offenses against the United States must be exactly described in the enactment which creates them. The effect of the Article is to establish a standard of conduct in respect to commissioned officers of the Army, and to give to material departures from such standard the character of serious military offenses. The particular acts or classes of acts which constitute such departures from the standard established in the Article are determined in part by custom of service and in part, as will presently be seen, by an application of the terms of the Article to the par- ticular acts or omissions which are set forth in the charges and specifications; if the conduct charged be found, upon inquiry, to conform to the conditions set forth in the statute, that is, to be " conduct unbecoming an officer and gentleman," the offense described in the Article has been committed and the mandatory sentence of dismissal must be imposed.' ' 111 Dynes vs. Hoover, 80 How., 83, it was held that the jurisdiction of couvts-mar- tlal under the Articles for the sovernraent of the Navy established by Congress was not limited to the crimes defined or specified in those Articles, but extended to any offense which, by fair deduction from the definition. Congress meant to subject to punishment, TEE ABTICLES OF WAR. 469 Scope of the Article. — In its original form the 'Article required the condact to be " scandalous and infamous," but these words were omitted from the revision of the Articles of War in 1806, and in an early case it was lield by tlie Secretary of War that they had been dropped intentionally, and in. a manner amounting to a declaration by Congress that it should no longer be necessary in order to bring an officer within the scope of the Article that the act charged should be "scandalous and infamous," pro- vided it were " unbecoming an officer and gentleman." ' Wli^constitutes / conduct nn beconiing an ojficer and^gentleman will therefore b,e .deteEniiflgd If/ by custom oiservice^ndsuch condj^i^tji^ajafifiltdeclaredjo^be^'sometjiiug ; i^ more than indec orum " and "sach as to disgrace the offender — to make him ali'uIlfiFaSsociate for officers andgenllemen. and to render .his exnulsion fro m the society of such nec^^rj_tojttie preservation ol the, resp£,Qtjiue to them as a c lam!. " ' !N"o r is it ess ential tliat the act should compromise the "J^^^ being one of a minor degree, of kindred character, •whicli lias already been recognized to be such by the practice of courts-martial in the army and navy services of nations, and by those functionaries in different nations to whom has been confided a revising power over the sentences of courts-martial; or which, though not included, in terms or by con- struction, within a comprehensive enactment, such as the 32d Article for the government of the Navy, which means that courts-martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offenses by the usages of the navy of all nations, and that they shall be punished accordiug to the laws and customs of the sea. Dynes vs. Hoover, 30 How., 83 ; Smith vs. Whitney, 116 U. S., 167, 183, 185. 'Dig. J. A. Gen., 61, par. l;Ives, p. 265. To constitute an offense under this Article the conduct need not be "scandalous and infamous." These words, contained in the original Article of 1775, were dropped in the form adopted in 1806. An act, how- ever, which is only slightly discreditable is not in practice made the subject of a charge under this Article. The Article, iu making the punishment of dismissal imperative in all cases, evidently contemplates that the conduct, while unfitting the party for the society of men of a scrupulous sense of decency and honor, shall exhibit him as un- worthy to hold a commission in the army. Dig. J. A. Gen., 61, par. 1. !■ G'. O. 97, Army of the Potomac, March 8, 1863; G. O. Ill, ibid., March 35, 1863. See, also. General Orders, 41, A. G. O., of 1879, in which General Sherman remarksthat " the charge of violating the 61st Article of War should only be made when the conduct of the accused is such as to unfit him to be an associate of olficers and gentlemen." Knowingly making to a superior a false olBcial report held chargeable under this Article. So of a deliberately false official certificate as to the truth or correctness of an ofHcial voucher, roll, return, etc. So of any deliberately false ofiBcial statement, written or verbal, of a material character. So where an officer caused the sergeant of the guard to enter in the guard-book a false ofHcial report that he (the officer) had duly visited the guard at certain hours as oificer of the day (when he had in fact been guilty of a neglect of duty in this particular), and thereupon himself signed such report and sub- mitted it to his post commander, held that his conduct was chargeable as an offense under this Article. Dig. J. A. Gen , 63, par. 2. The following acts committed in a particular case lield to be offenses within this Article; preferring false accusations against an officer; attempting to induce an officer to join in a fraud upon the United States; attempt at subornation of perjury. Ibid., par. 3. The use of abusive language toward a commanding oflBcer may constitute an offense ander this Article. But, both as a matter of correct pleading, and because the 20th Article authorizes a punishment less than dismissal, the language should be so particu- Jarized as to show that it constituted an offense more grave than the mere disres^pect Which is the subject of the latter Article. A specification not thus setting forth and characterizing the epithets or words employed will be subject to a motion to make defi- hitte or strike out. Ibid., 65, par. 31. Held that a surgeon who appropriated to his own personal use, and to that of his 470 MILITABT LAW. J^-^ honor of the officer.' It is only necessary that the conduct should be such as is at once disgracefuror^isrepuEaBle aniTmanifestly unbefitting both an officer oflETarmy andji^gentlenian.' "" " —»=*-«.«- Conduct Need Not Directly Affect the Military Service. — To Justify a charge under this Article, it is not necessary that the act or condiict of the officer should be inm ifijiaitely-xuMmeGtad witli or - shaold directly affect the military service! It is sufficient that it is morally wrong and of such a nature that, while dishonoring or disgracing him as a gentleman, it com- promises his character and position as an officer of the Army." private mess, food. furnished by the governmeDt for hospital patieuts was guilty of an offense under this Article. Dig. J. A. Gen., 62, par. 5. v The violation by an officer of a promise or pledge on honor given by him to a supe- rior, in consideration of the withdrawal by the latter of charges preferred for drunken- ness, that be would abstain for the future, or for a certain period, from the use of intoxicating drink, held chargeable under this Article. .Ibid., par. 6. The mere acceptance by an officer of compensation from private parties (civilians) whom, by permission of his superior, he assists in a private undertaking, though it may be an indelicate act, is not an offense under this Article. Of the propriety of such con- duct an officer must judge for himself. Ibid., 65, par. 22. The duplication of a " pay-roll," or claim for monthly pay, is always an offense under this Article. It is no defense that the transfer was made before the pay was actually due and payable, i.e., before the end of the month. While such a transfer may be inoperative in view of par. 1440, A. K., in so far as that the G-overnjnent may refuse to recognize it, it is valid as between the officer and the party, and to allow the former to shelter himself behind the regulation would be to permit him to take advantage of his own wrongful and fraudulent act. Ibid., 66, par. 23. The regulation, par. 1300, A. R. 1895, does not assume to invalidate, as between the parties, a transfer made or dated before the last day of the month, nor could it do so. Nor, though the money may not be payable thereon by the paymaster, is the oUense of the officer" under this or the 60th Article, any the less. An officer lias no right to pre- sent for payment and procure to be paid to himself a pay account of which a duplicate remains outstanding in the hands of a bona flde transferee. The latter hits an equitable, if not a legal, claim to the pay, and this claim cannot be ignored by the officer without dis- honor. Moreover an officer of the Army has no right to place the military authorities in the position of thus refusing to pay a bona fide holder of a draft upon tlie treasurer. Such an act compromises and discredits the United States and the Government, and is especially an offense in a public officer. Ibid., par. 24. It is no defense whatever to a cliarge under this Article that between the date of the refusal by the United States to pay the assignee of a duplicated voucher and the date of the arraignment of tlie officer or of the service of the charges, the money due has been paid, or someliow secured or made good to the assignee, or that he has been induced to withdraw or suspend his claim against the officer.* Ibid., 66, par. 25. lleid that a Continued neglect, without adequate excuse, to satisfy a pecuniary obli- gation long overdue, after specific assurances given of speedy payment, was a dishonor- able act constituting an offense under this Article. f Ibid., par. 26. • Ibid., 61, par. 1. See General Orders No. 25, Dept. of the Missouri, 1867. '' "An ofiicer of the army is bound by the law to be a gentlerhan." Att.-Gen. Cush- ine 6 Opins. 417. See definitions or partial definitions of the class of offenses contcm- nlated bv this Article in G. O. 45. Army of the Potomac. 1864; do. 29, Dept. of Cali- fornia, 1865; do 7, Dept. of the Lakes, 1872; G. C. M. O. 69, Dept. of the East, 1870; do. 4l! Hdqrs. of Army, 1879. ^ Dig. J. A. Gen., 63, par. 10. Thus, though a mere neglect on the part of an officer to satisfy his private pecuniary obligations will not ordinarily furnish sufficient ground for charges against him, yet where the debt has been dishonorably incurred — as where money has been borrowed under false promises or representations as to payment or * See tlie remarks of the reviewing authority in the cases published in G. C. M. O. 88 of 18f6, and + See the recent ruling to a similar effect by the Supreme Court in Fletcher vs. V. S., 148 U. S., 91, 92; also the same case in 26 Ct. CI., 641. THE ARTICLES OF WAR. 471 According to the accepted principle of interpretation by which Articles of War enjoining a specific punishment or punishments are held to be in security, or where tbe non-payment has been accompanied by such circumstances ot fraud, deceit, evasion, denial of indebtedness, etc., as to amount to dishonorable con- duct — the continued non-payment in connection with the facts or circumstances render- ing it dishonorable may properly be deemed to constitute an offense chargeable under this Article.* Dig. J. A. Gen., 63, par. 11. See, also, ibid., 63, paragraphs 4 and 5. Neglect or refusal to pay honest debts may constitute an o3ense under this Article where so repealed or persistent as to furnish reasonable ground for inferring that the officer designs or desires to avoid or indefinitely defer a settlement. This especially where the debts are due to soldiers for money boriowed from or held in trust for them. Ibid., 64, par. 13. An indifference on the part of an oflBcer to his pecuniary obligations of so marked and inexcusable a character as to induce repeated just complaints to his military com- mander or the Secretary of War by his creditors, and to bring discredit and scandal upon the military service, held to constitute an offense -within the purview of this Article, t Jbid., par. 14. Where an officer in payment of a debt gave his check upon a bank, representing at the same time that be had funds there, when in fact, as he was well aware, he had none, held that he was amenable to a charge under this Article. Ibid., par. 12. The following acts held to consiilute offenses under this Article : fraudulently pro- curing a divorce from his wife by an officer; failure on the part of an officer to support his wife and child without adequate excuse therefor ; procuring or allowing himself, by a retired officer, to be placed by legal proceedings under a conservator as a habitual drunkard. Ibid., 65, par. 20. The institution by an officer of fraudulent proceedings against his wife for divorce, and the manufacture of false testimony to be used against her in the suit in connection with an abandonment of her and neglect to provide for her support, Iield to constitute " conduct unbecoming an officer and a gentleman " in the sense of this Article. Ibid., par. 18. Where an officer stationed in Utah was married there by a Mormon official to a female with whom he lived as his wife, although having at the same time a legal wife residing in the States, held that lie might properly be brought to trial -by general court- martial for a violation of this Article. So held of an officer who committed bigamy by publicly contracting marriage in the United States while having a legal wife living in Scotland whom he had abandoned. Ibid., 64, par. 16. Abusing and assaulting his wife by an officer at a military post in so public and marked a miinner as to disturb the post and bring scandal upon the service held charge- able as an offense under this Article. Ibid., par. 17. Where certain officers of a colored regiment made a practice of loaning to men of the regiment small amounts of money, for which they charged and received in payment at the rate of two dollars for one at the next pay-day, held that they were properly con- victed of a violation of this Article. Ibid., par. 15. Engaging when intoxicated in a fight with another officer in the billiard-room at a po-t trader's establishment in the presence of other officers and of civilians held an offense within this Article. So heldoi an engaging in a disorderly and violent alterca- tion and fight with another officer in a public place at a military post in sight of officers and soldiei s. So held of an exhibition of himself by an officer in a public place in a grossly drunken condition. Ibid., 63, par. 8. Gambling per se does not constitute a military offense. If indulged in, however, to sucl) an extent or in such a manner as to give it the character of a disorder "to the prejudice of good order and military discipline" in the sense of Article 62, or under cir- ciimstunces so personally discreditable as to bring it within the description of "conduct unbecoming an officer and a gentleman," it may of course be taken cognizance of by a * Cases o( officers made amenable to trial by court-martial under this Article for the nonfulflllment of pecnniai-y obligations to other officers, enlisted men, post traders, and civilians are found in the followine General Orders of the War Dept. and Hdqrs. of Army : No. 87 of 1866; do. 3, m, M of 1869; do. 15of 18T0; do. ITof 1871f do. aa, 46 of 1878; do. 10 of 1873; do. 85,60, 68, 88 of 1874; do.Soof 1875; do. 100 of 1879; do 46 of 1877. + See, on the subject of these complaints, the Circular issued orig^inally from the War Department (A. G. O.) on Feb. 8, 1873, in which the Secretary of War "declares his intention to bring to trial by court-martial," under the 61st Article of War, " any officer who, after due notice, shall fail to quiet such claims against him." 472 MILITARY LAW. this particalar both mandatory and exclusive, no sentence other than one of simple dismissal can legally be adjudged upon a conviction under this Article. A sentence which adds to dismissal any other penalty or penalties, as disqualification for office, forfeiture of pay, imprisonment, etc., is valid and operative only as to the dismissal, and as to the rest should be formally disapproved as being unauthorized and of no efEeot.' Aeticle 62. All crimes not capital, and all disorders and neglects, which officers and soldiers may he guilty of, to the prejudice of good order and mili- tary dif:ci.2Jli7ie, though not mentioned in the foregoing Articles of War, are to ie taken cognizance of ly a general or a regimental, garrison, or field officers' court-martial, according to the nature and degree of the offense, and punished at the discretion of such court." Article 116 of the military code of Grustavus Adolphus contained the provision that " whatsoever offense, finally, shall be committed against these orders, that shall the several Commanders make good, or see severally punished, unless themselves will stand bound to give further satisfaction for it." ' In the King James Code of 1686 ' the Article assumed something of its present form, in the requirement of Article 64 that " all other faults, misdemeanours and disorders, not mentioned in these Articles, shall be punished, according to the discretion of the Court-Martial; Provided that no punishment amounting to the loss of Life or Limb, be inflicted upon any offender, in time of Peace, although the same be allotted for the said Offense by these Articles, and the Law and Customs of War." In Article 3, Section 20, of the British Code of 1774 the provision appears in the following form : ' ' All Crimes not Capital and all Disorders and Neglects, which Officers and Soldiers may be guilty of to the Prejudice of good Order court-martial. The Army Regulations (par. 590) recognize it as peculiarly objectionable when practiced by a disbursing officer.* Dig. J. A. Gen., 437. Gambling with enlisted men in a public place, held an offense within this Article. And so of frequenting in uniform a disreputable gambling bouse and gambling with gamesters. Ibid., 63, par. 9. Where au ofHcer appeared iu uniform at a theatre, drunk, and conducted himself in such a disordeily manner as to attract the attention of officers and soldiers who were present, as well as the aiidience generally, held that he was properly convicted of a vio- lation of this Article. Ibid., 63, par. 7. ^ Ibid., 65, par. 19. » Section 3 of the Act of July 27, 1892, (27 Statutes at Large, 277,) contained the requirement that " fraudulent enlistment, and the receipt of any pay or allowance there- under, is hereby declared a military offense and made punishable by court-martial, under the 62d Article of War." ^ Tlie Articles of Gustavus Adolphus, which appeared in 1621 under the title "Articles and Military Lawes to be observed in the Warres," will be found printed in full in Vol. II. of Winthrop, Military Law, p. 8 of Appendix. * For a copy of this code see II. Grose Mil. Antiquities, 139. * See in G. C. M. O. 18, War Dept., 1871, a caoe of a disbursinpr ofBcer convicted of eamhiine; as an offense under Article 62; and note the remarks of the reviewing authority upon an instance of this class in G. O. 2, Dept. ot Arizona, 1878. In an earlv case— in G. O. 104, Hdqrs. of Army, 1833— it was held that aclaim by a disbursing officer that he had played for too small stakes to endanger the safety of the public funds entrusted to bis charge was not a sufBcient excuse for his gambling, in view of the regulation. THE ARTICLES OF WAB. 473 and Military Discipline, thougli not mentioned in the above Articles of "War, are to be taken Cognizance of by a General or Regimental Oourt-Martial, and be punished at their Discretion." In this form it appeared as Article 5, Section 18, of the American Articles of 1776, in which the clause con- ferring jurisdiction to try offenses under the Article "according to the nature and degree of the offense " was added. As so modified the provision was re-enacted in the revisions of 1806 and 1874.' Nature of the OiFense. — This Article, like that last described, is an apparent exception to the rule that offenses against the United States must be exactly described in the statutes creating them, in that it establishes cer- tain conditions to which a wrongful act or omission must conform in order to give it the character of a military offense and authorize its trial by a mili- tary tribunal. The offenses over which jurisdiction is conferred must therefore conform strictly to the conditions set forth in the statute; that is, _^ they must be either "crimes not capital " or " neglects and disorders," and ^' to warrant their trial Ty'cour t-imartial must in every case operate " to the prejudice of good order and military discipline." The offense must in general be committed by a military person, and in every case by a person subject to military jurisdiction." Crimes. — The word " crimes " in this Article, distinguished as it is from " neglects " and " disorders," relates to military offenses of a more serious character than mere neglects and disorders, and includes such as are also civil crimes — as homicide, robbery, arson, larceny, etc. " Capital" crimes (i.e., crimes capitally punishable), including murder, or any grade of murder made capital by statute, cannot be taken cognizance of by courts- martial under this Article.' Neglects and Disorders. — A " neglect " is anomission^or forbearance to £^' do a th ing ,that,,fl anJ)e d one or_ that is required to be done.' In its ordinary meaning it is an omission, from carelessness, to do^ something that can be done or ought to be done. The obligation to perform the act or thing neglected is military in character, and arises in connection vvith the require- ments of military duty. Law, regulations, orders, and, where these are ' Tliis requirement was known in the English service as "The Devil's Article." 'See the chapters entitled Jukisdiction of Coukts-martial and Chabgbs and Spboificationb ^ Dig J. A. Gen., 67, par. 1. A crime which is in fact murder, and capital by statute of the United States or of the Stale in which committed, cannot be brought within the jurisdiction of a court-martial under thi-i Article, hy charging \\ as "manslaughter, to the prejudice," etc., or simply as "conduct to the prejudice," etc.* If the specification or the proof shows that the crime was murder and a capital ofiEeiise, the court should refuse to take jurisdiction or to find or sentence. If it assume to do so, the proceedings should be disapproved as unauthorized and void. Ibid. See, also, the 58th Article of War, supra. ■* Anderson Law Diet. * See this opinion, as pivpn in an important case, adopted by the Secretary of War in his action on the same published in R. C. M. O. 3. War Dept.. 1S71 ; also the similar rulings in G. C. M. O. 28, Dept. of Texas, 1875; G. 0. 14, Dept. of Dalcota, 1868; do. 104, Army of the Potomac, 1863. 4:14: MILITARY LAW. silent, the custom of service prescribe the several military duties and obliga- tions the neglect of which is chargeable under this Article ; the evidence submitted in a particular case shows the manner in which the duty was per- formed, and the particulars in respect to which there has been criminal neglect.' The term " disorder," as used in this connection, is more com- prehensive than when used in reference to civil afEairs, and includes not only disorders, in the sense of frays, quarrels, and the like, but all interruptions of the good order which should prevail in camp or garrison and willful departures from that orderly recurrence of events which constitutes military discipline and which are, as such, harmful or prejudicial to good order and military discipline.' ' To constitute negligence at criminal law the duty neglected must have been created or imposed by law or contract. Military negligence differs from this in that the duty must be created by law, orders, regulations, or by custom of service. No military duties can be created by contract or agreement, or be made the subject of a contractual rela- tion. The neglect of a duty of a personal character, created by contract, may give rise to a prosecution under this Article, as will be seen by an inspection of the cases referred to in the next note. ' The following ofiEenses have been held properly charged or chargeable under this Article as disorders or neglects " to the prejudice'of good order and military discipline :" Drunkenness or drunken and disorderly conduct, at a post or in public, comuiitied by a soldier or officer when not " on duty," and when the act (in the case of an officer) does not more properly fall within the description of Art. 61 ; escape from military confine- ment or custody {wheie not amounting to desertion, see Article 47) ; breach of arrest (where not properly chargeable under Art. 65) ; malingering ; disclosing a finding or sentence of a court-martial in contiaveniion of the oath prescribed in Art. 84 or 83; refusing to testify when duly required to attend and give evidence as a witness before a court-martial ; joining with other inferior officers of a regiment in a letter to the colo- nel asking him to resign ; neglecting, by a senior officer "present for duty" with his regiment, to assume the command of tlie same when properly devolved upon him, and allowing such command to be exercised by a junior ; culpable malpractice by a medical officer in the course of liis regular military duty; colluding with bounty brokers in procuring fraudulent enlistments to be made and bounties lo be paid thereon ; viola- tions by an officer of par. 680, Army Regulations of 1395, in bidding-in and purchasing, through another party, public property sold at auction by himself as quartermaster; also, iu purchasing subsistence stores ostensibly for domestic use, but really for purposes of traffic. Violations, indeed, of Army Regulations in general are properly chargeable under this Article; as are neglects (or disorders) to the prejudice of good order and military discipline: causing (by a quartermaster) troops to be transported upon a steamer known by him to be unsafe ; paying money due under a contract (for military supplies) to a party to whom, with the knowledge of the accused, the contract had been transferred in contravention of Sec. 3737. Rev. 8ts. ; inciting (by an officer) another officer to challenge him to fight a duel ; assuming (by a soldier) to be a corporal in the recruiting service, and as such enlisting recruits and obtaining board and lodging for himself and recruits without paying for same : procuring (by a soldier) whiskey from the post trader by forg- ing an order for the same in the name of a laundress ; breach of faitli (by a soldier) in refusing to pay the post trader for articles obtained on ciedit, upon orders on him which had been guaranteed or approved by the company commander upon tlie condition that the amounts should be paid on the next pay-day; gambling by officers or soldiers under such circumstances as to impair military discipline (where the conduct, in the case of an officer, does not rather constitute an offense under Article 61) ; striking a soldier, or using any unnecessary violence against a soldier, by an officer. Dig. J. A. Gen., 69, par. 6. The following are examples of offenses which have been held cognizable under Article 62: Neglect on the part of an officer of engineers to oversee the execution of a contract for a public work placed under his charge, the due fulfillment of such charge being a military duty; a public criticism in a newspaper b}' an officer of a case which had been investigated by a court-martial and was awaiting the action of the President ; assuming THE ABTIGLES OF WAR. 475 Prejudice of Gpod Order and Military Discipline. — The term "to the prejudice of good order and military discipline " qualifies, according to the accepted interpretation, the word " crimes " as well as the words " disorders and neglects." Thus the crime of larceny (sometimes charged as " theft " or " stealing") is held chargeable under this Article when it clearly afEects the order and discipline of the military service. Stealing, for example, from a fellow soldier or from an officer or stealing of public money or other public property (where the offense is not more properly a violation of Article 60), is generally so chargeable. And so of any other crime (not capital) the commission of which has prejudiced military discipline.' Iby an officer to copyright as owner, and thus asserting the exclusive right to publish, in an abridged form, the Infantry Drill Regulations, property of the United States, and the formal official publication of which had alicaiiy been announced in orders by the Secre- tary of War ; selling condemned military stores by an officer without due notice, and not suspending the sale when better prices could have been obtained by deferring it, in vio- lation of par. 679, A. R. 1895 ; misconduct by a soldier at target-practice, consisting of breaches of the published instructions, false statements or markings with a view fraudu- lently to increase a score, etc. ; violation by a soldier of a pledge given to his command- ing officer to abstain from intoxicating liquors, on the faith of which a previous offense was cond6ned ; bigamy by a soldier committed at a military post. Dig. J. A. Gen., 73, par. 13. The following acts held not to be cognizable as offenses under this Article : a resort to civil proceedings by suit against a superior officer on account of acts done in the per- formance of military duty (but held that if the verdict should be for the defendant, and it should appear ihat the suit was without probable cause and malicious, a charge under this Article might perhaps be sustainable); the mere loaning of mon^ at usurious or excessive rates of interest by a non-commissioned officer to privates, unless it should clearly be made to appeal' that such conduct promoted desertions or other results preju- dicial to the discipline of the command, (but as the practice in this case had been long continued, and was clearly demoralizing, advised that the non-commissioned officer be summarily discharged) ; the becom'ng infected by a soldier with a disease unfitting him for service, as tlie result of vicious conduct ; tlie living in adultery liy a soldier at Platts- burg village, where he was permitled to reside, situate about a mile from Plattsburg 'Ba,Tl■l\r^LS (advised in this case that the offender bs turned over to the civil authorities for trial under the laws of New Yorli). Ibi'L, 74. par. 13. The following acts or offenses have been held to be not properlv chargeable under this Article : a mere breach of the peace committed by a soldier (while abselit alone and at a distance from his post) in a street of a city, and in violation of a municipal ordinance; pecuniary transactions between enlisted men of a culpable character, but in their private capacity and not directly affecting the service or impairing military discipline ; speculat- ing and gambling in stocks by a disbursing officer, the proper performance of whose military duty was not affected (but recommevdrd that he be relieved from the duty of disbursing public money) ; re-enli^tini by the procurement of the recruiting officer, after having been discharged for a disability still continuing ; the act being in good faith, and the alleged offense being committed before the party could be said to have fully come into the service. Ibid., 71, par. 7. ' Dior. J. A. Gen.. 67, par. 2. As, for example, manslaughter for homicide not amounting to murder') of a soldier, as. demand to be arrested. ' " "^ "By WfiomTlmposed. — Except in the class of cases indicated in the 24th Article, only "commanding officers" can place commissioned officers in arrest." The commanding officer thus authorized is the commander of the regiment, company, detachment, post, department, etc., in which the officer is serving. Where a company is included in a post command, the com- mander of the post, rather than the company commander, is the proper officer to make the arrest of a subaltern of the company." In the majority of cases, however, arrests are originally ordered by the authority by whom the court has been or is to be convened.' An officer is not privileged from arrest by virtue of being at the time a member of a general court-martial. But an arrest of an officer while actually engaged upon court-martial duty should if possible be avoided. ' /' "A medical officer charged with the commission of an offense need not ,_/ be placed in arrest until the court-martial for his trial convenes, if the service •- — "/\ would be inconvenienced thereby, unless the charge is of a flagrant char- \ acter.'" ' Dig. J. A. Gen., 169, par. 1. "An ofHcer arrested will repair at once to his tent or quarters, and there remain until more extended limits have been granted by the com- manding olEcer. on written application. Close confinement will not be enforced except in cases of a serious nature." Par. 898, A. R. 1895. ' ■' Commanding officers only have power to place officers in arrest, except as provided in the 24th Article of War. An arrest may be ordered bv the comnsandiug officer in person or through his staff officer, orally or in writing." Par. 897, A. R. 1895. 3 Dig. J. A. Gen., 170, par. 2 ; par. 897, A. R. 1895. 4 Dig. J. A. Gen., 170, par. 2. ' Ibid. . par. 6. • Par. 900, Army Regulations of 1895. "Officers will not be placed in arrest for light offenses. For these the censure of the commanding officer will generiilly answer the purpose of discipline. Whenever a commanding officer places an officer in arrest and releases him without preferring charges, he will make a written report of his action to the department commander, stating the cause. The department commander, if he thinks the occasion requires, will call on the officer arrested for any explanation he may desire to make, and take such other action as he may think necessary, forwarding the papers to the Adjutant-General of the Army for file with the officer's record or for fur- ther action." Par. 899, ibid. The principle of the common law by which a witness is protected from arrest THE ARTICLES OF WAR. 483 The Status of Arrest ; Limits. — The status ot being in arrest is incon- sistent with the peforming of military duty. Placing an arrested^officer or sQldier on dat y terminat es his a rrest. Eeleasing a soldier from arrest and requTring him to perform military duty, after his trial and while he is await- ing the promulgation of his sentence, can be justified only by an extraor- dinary exigency of the service.' It is clearly to be inferred_from_paragraphs 897 and 898 of the Army Eegulations of "T8?5 ~that, unless other limits are sp ecially assigned him, an officeFm aTrest _nm s£conflne_Mn]^lf^tohis c[uarters. It is generally under- stood indeed that he can go to the mess-house or other place of necessary resort. It is not unusual, however, for the commander to state in the order of arrest certain limits within which the officer is to be restricted, and, except in aggravated cases, these are ordinarily the limits of the post where he is stationed or held. An officer or soldier, though retained in close arrest, should be permitted to receive such visits from his counsel, witnesses, etc., as may be necessary to enable him to prepare his defense.' 4-i j-.--Ciffi9er .]; ^nder arrest is not disq ualified to -prefer^^rges.' ^ '~" The imposition of anjTre§LafEex!±S-in no manner thj right of an officer or soldier to receive the pay and allowances of his rank. Except in a case of a deserterj^^ho legal inhibition exists to paying a soldier while in arrest, either before trial^or while awaiting sentence, his regukr pay and emolu- \ menlsl' '™-~~"~" Abticle 66. Soldiers charged with crimes shall is confined until tried by court-martial or released by proper authority. This appears as No. 78 of the Articles of 1806, as Article 15, Section 14, of those of 1776, as Article 15, Section 14, of the Eesolution of Con- gress of May .31, 1786, and as Article 17, Section 15, of the British Code of 1774. The clause relating to the confinement of enlisted men was first made a separate Article of War in the Resolution of Congress of 1786. While the power to place officers in arrest is, as has been seen, an attribute of com- mand, and is in general restricted in its exercise to the commanding officer, the corresponding power to confine enlisted men is one which may be exer- cised, Id a proper case, by any commissioned officer. It is usually exercised, however, by the. offender's immediate commander, or by the officer under whose orders he may happen to be at the time the oSense is committed. should in general be applied to military cases. If it can well be avoided, an arrest should certainly not be imposed upon an oiBcer or soldier while attending a court-mar- tial as a witness. But such an arrest would constitute an irregularity only, and would not afiect the validity of the proceedings of a trial to which the party thus arrested was subsequently subjected. Dig. J. A. Gen., 171, par. 9. 1 Dig. J. A Gen., 170, par. 4; 1 Greenleaf, 8 316. ^ Ibid.,x<»v.Z. s Ibid., 171. par 7. « See par. 139. A. R. 1895. » Dig. .T. A. Gen., 171, par. 8. 484 MILITAMT LAW. The confinement, though required by regulation and by custom of service ■yto hQjix dered by a co mmissioned ofBjB^T-mary-be-.&e£Ci^to?. by a subordinate, or by any duly authorized military person, as by a non-commissioned officer or by a sentinel.' The word " crimes," as used in this Article, is construed to mean serious military offenses. So that a soldier will not properly be confined where not charged with one of the more serious military offenses; in other words, where charged only with an offense of a minor character." Character of Restraint. — Soldiers held in confinement, while they may be subjected to such restraint as may be necessary to prevent their escaping or committing violence, cannot legally be subjected to any punishment ; the imposition of punishment upon soldiers while thus detained has been on several occasions emphatically denounced by department commanders. ° Confinement of Enlisted Men, How Executed. — It has been seen that the arrest of a non-commissioned officer or the confinement of a private soldier may be ordered by any commissioned officer of the Army.' Non-commissioned officers against whom charges may be preferred for trial will be placed in arrest in their barracks or quarters. They will not be confined in the guard-house in company with privates, except in aggra- vated cases or when escape is feared.' Soldiers "against whom charges may be preferred for trial by summary ^ court will not be confined in the guard-house, but will be placed in arrest in "' \quarters, before and during trial and while awaiting sentence, except when m particular cases restraint may be necessary." ' ^ Privates against whom charges may be preferred for trial by general / court-martial will be confined in the guard-house before and during trial. While awaiting trial and sentence, or undergoing^ sentence, they will, .if ,„^ practicable ^ be kept-apart from privates confined^ for minor offenses or by ' sen tenice_Df-an inferior court.' ^ — A soldier while confined in arrest should not be fettered or ironed except ' See Article 65, supra, and the chapter entitled Arrest and Confinement. » Dig. J. A. Gen.; 79, par. 2. ' Ibid., par. 1. See, for example, the remarks of department commanders in G. O. 23, Department of the East, 1863; do. 26, Department of California, 1866; do. 23, De- partment of the Lakes, 1870; do. 106, Department of Dakota, 1871. And compare the remarks of Justice Story in Steere m. Field, 2 Mason, 516. * See the chapter entitled Arrest and Confinement, supra. Except as provided in tlie 24th Article of "War or when restraint is necessary, no soldier will be confined without the order of an officer, who shall previously inquire into his offense. Confine- ment without trial, as a punishment for an offense, is forbidden. An officer authorizing the arrest or confinement of a soldier will, as soon as praticable, report the fact to his compnny or detachment commander. Pars. 905, 906, A. R. 1895. 5 Paragraphs 904 and 936, A. R. 1895. Enlisted men in arrest in barracks or quar- ters will be designated as " in arrest"; those confined in the guard-house awaiting trial or result of trial as "in confinement." Manual for Courts-martial, p. 6, par. 1. 6 Par. 936, ibid. ' Par. 907, Md. TBE ARTICLES OF WAS. 485 where such extreme means are necessary to restrain him from violence, or there is good reason to believe that he will attempt an escape and he cannot otherwise be securely held.' Status of Confinement. — Non-commissione 19 Statutes at Large, 97. '20 ibid., 146. 3 Dig, J. A. Gen., 99, par. 1. * Ibid., 93, par. 3 Under par. 898, Army Regulations of 1861, it devolved upon a department commander to supervise the proceedings of regimental and garrison courts- martial transmitted to his headquarters, and if he discovered any materia! error, defect, or omission in a record, or in the action taken in the case by the inferior commander, to return the proceedings 1o the latter, calling his attention to the correction deemed proper to be made. This parasraph is not contained in the Regulations of 1889 or in the existing Regulation of 1895. Ibid., par. 3. ' See the chapter entitled The Inferior Courts-martial. 2^ -v -^\ TEE ARTICLES OF WAR. 501 part of the defenses of the realm, garrisons were established, and maintained with the sanction of Parliament, at a very early period of English history ; ' and these forces, together with the personal guards of the sovereign, consti- tuted, in great part, the lawful military establishment during the sixteenth and seventeenth centuries. With a view to the maintenance of discipline in the garrisons thus authorized, the governor, or commander, was empowered by the early Articles of War " to assemble courts-martial for the trial of offenders ; and these tribunals were placed on the same footing, as respects jurisdiction, as the already existing regimental courts-martial. They were to consist of not less than five members, and their sentences were inoperative until they had been confirmed by the commanding officer. In tlie British Code of 1774 the requirement appears," as a condition precedent to their constitution, that the garrison shall " consist of detachments from different regiments, or of independent companies." This Article was embodied as Article 12, Section 14, in the American Articles of 1776, and continued in force for nearly ten years, when it was replaced by the new section in respect to the administration of military justice which is contained in the Resolution of Congress of May 31, 1786; in which enactment the authority for the con- stitution of regimental and garrison courts-martial was contained in a single Article and the number of members was fixed at three. In this form it was re-enacted as No. 66 of the Articles of 1806. Until 1880 the junior member acted as the judge-advocate of this tribunal, but, in conformity to the terms of General Orders, No. 15, of the War Department of that year, separate judge-advocates were required to be detailed to prosecute cases before these courts in behalf of the United States. The garrison or detachment court-martial in England was discontinued in 1829, its jurisdiction being merged in that of the regimental court- martial.'' Constitution and Composition.' — It is not essential, in this or the preced- ing Article, that the " officer commanding " should be of the rank of field- officer. A commanding officer, though a captain or lieutenant, may convene a court-martial, under this Article, provided he has the required command.' A_commanding officer, however, is not authorized to detail himself, with two other officers^ as a court under either Article.' " The general term " other place " is deemed to be intended to cover and include any situation or locality whatever — post, station, camp, halting- ■ I. Clode, Mil Forces, 52. « See Articles of 1666 nnd 1672. See, also, Clode, Mil. Law, 33. » Article 14, Section 15. ■•Simmons, § 110. ' See tlie clmpters entitled respectively Constitution of Courts-martial and The Composition of Courts-martial. «Dig. J. A. Gen., 93, pnr 1. ''Ibid., par. 2. An "acting assistant surgeon," not being an officer of the Army, cannot be detailed on such court. Ibid. 502 MILITAR T LA W. place, etc. — at whicli there may remain or be, however temporarily, a separate command or detachment in which different corps of the army are repre- sented, as indicated in the next paragraph. If such command, so situated, contains three officers, other than the commander, available for service on court-martial, the commander will be competent to exercise the authority conferred by this Article.' In view of the early orders ' relating to the subject, and of the practice thereunder, it has been held that the presence on duty with a garrison, detach- ment, or other separate command, at a fort, arsenal, or other post or place, and as a part of such command, of a single representative, officer or soldier, of a corps, arm, or branch of the service other than that of which the bulk of the command is composed — as an officer of the quartermaster, subsistence, or medical department, a chaplain, ati ordnance sergeant or hospital steward, an officer or soldier of artillery where the command consists of infantry or cavalry, or vice verm, etc., — might be deemed sufficient to fix upon the command the character of one "where the troops consist of different corps," in the sense of this Article, and to empower the commanding officer to order a court-martial under the same. The presence, however, with the command of a civil employee of the Army (as an "acting assistant surgeon") could haTe no such effect." Article 83. Regimental and garrison courts-martial and summary courts detailed U7ider existing laws to try enlisted men shall not have power [ to try capital cases or commissioned officers, hut shall have power to award \ punishment not to exceed confinement at hard labor for three months, or for- feiture of three months' pay, or both; and in addition thereto, in the case of non-commissioned officers, reduction to the ranks, and in the case of first- class privates rediiction to second-class privates: Provided, Tliat a summary court shall not adjudge confinement and forfeiture in excess of a period of one month, unless the accused shall before trial consent in writing to trial by said court; but in any case of refusal to so consent the trial may be had either by general, regimental, or garrison court-martial, or by said Summary Court; but in case of trial by said Summary Court, without consent as afore- said, the court shall not adjudge confinement or forfeiture of pay for more than one month. (Act of March 2, 1901. 31 Stat, at Large, 951.) The grant of jurisdiction to the regimental court-martial in Albemarle's Articles, as well as in the Prince Eupert Code and in that of James II., is 'Dig. J. A Gen., 93, par. 3. ' In order thai tlie practice tlirougliont tlie Army under the second clause of tbe 66th (present 82dl Article may be uniform, it is published for the infoimation of all, as the opinion at General Headquarters, that the presence on duty of an ordnance sergeant, like that of an officer or man of any other different corps, at any military post garrisoned with troops, gives to its commanding officer the legal power to appoint garrison courts-martial for the trial of petty military offenses committed at the same. Par. 1, General Orders, No. 5, H. Q. Army, January 18, 1843. See, also, Gen. Orders, No. 13, Fourth Mil. Dis- trict, 1867. ' Ibid. , 94, par. 4. THE ARTICLES OF WAR. 503 somewhat vague, and seems to have rested to some extent upon custom of service ; the commissioned officers of every regiment being authorized to hold a court-martial "on all necessary occasions."' In the British Codes of 1765 and 1774/ and in the American Articles of 1776/ the jurisdiction conferred is still very indefinite in character, being expressly restricted to the "inflic- tion of corporal punishment for small ofienses." In Article 4, Section 14, of the amendment of the American Articles of 1776, which is embodied in the Eesolution of Congress of May 31, 1786, the present restriction upon the power of the minor courts to punish military offenses is for the first time made the subject of legislative enactment, together with the clause with- drawing capital oases and those affecting commissioned officers from the jurisdiction of regimental and garrison courts-martial. As so modified, the requirement was embodied in the Articles of 1806 and, save for the addition of the clause extending the provisions of the Article to the newly created field-officer's court,' was re-enacted without change in the revision of the A.rticles in 1874. Extent of Jurisdiction. — The power to punish being expressly restricted to the forfeiture of three months'-3»arfr"0^~to~inTpTisoTim:ent' for^a period not longer than three months, a se ntence forfeiting pecuniary allowances in addi- tion to pay , where the^rfeiture amounts to a sum greater than tllPSS fiiontEr pay, would not be authorized 'undSr this Article.' So, also, a sentence adjudged by a gaiTison"court"of cbffflnement "till the expiration of the term of service" of a soldier would be unauthorized unless the soldier had no more thah one month left to serve.' The limitations imposed by the Article have reference of course to single sentences. For distinct offenses made the subject of different trials resulting in separate sentences, a soldier may be placed at one and the same time under several penalties of forfeiture and imprisonment, or either, exceeding together the limit fixed by the Article for a single sentence.' An inferior court is not empowered to impose a sentence of dishonorable discharge. Such a punishment is not expressly authorized by the 83d Article Of War, to be adjudged by regimental, garrison, or summary courts-martial, the power to impose it being restricted to general courts-martial by the Eourth Article of War. While inferior courts have, equally with general courts, JKriftflicMon of all military offenses not capital, yet, in view of the limitations upon their authority to sentence, it is in general inexpedient to resort to them for the ' See Articles 50 and 63, Prince Kupert Code, and Articles 47, 50, and 56 of the James II. Articles. « Article 12, Section 15. 3 Article 12, Section 14. « Section 7, Act of July 17, 1863. (13 Stat, at Large, 598.) ' Dig. J. A. Qen., 95, par. 3. See, also, the chapter entitled Punishmkntb. * Ibid., par. 4. ' Ibid., par. 6. See General Orders, No. 18, War Dept., 1859. 504 MILITARY LAW. trial of the graver ofEenses, such as larcenies, aggravated acts of dranken- ness, protracted absences without leave, etc., a proper and adequate punish- ment for which would be beyond the power of such tribunals. So, as a reviewing oflScer is never authorized to add to the punishment imposed by any court-martial, the more serious offenses should, where practicable, be referred for trial to general courts-martial, which alone are vested with a full discretion to impose punishments in proportion to the gravity of the offenses. ' Abticle 84. The judge-advocate shall administer to each member of the court, lefore they proceed upon any trial, the folloioing oath, which shall also be taken by all members of regimental and garrison courts-martial: " You, A B, do swear that you will well and truly try and determine, according to evidence, the matter now before you, between the United States of America and the prisoner to be tried, and that you will duly administer justice, with- out 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 doubts should arise, not explained by said Articles, then according to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authority, except to the judge- advocate ; neither ivill you disclose or discover the vote or opinion of any pvrticular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God.'" The 60th of the Prince Eupert Articles contains the following require- ment as to the oath of a member: " Those who are judges in Our General Court-martials * * * shall take oath for the due administration of Justice according to this Article, or (where these Articles assign no absolute punish- ment) according to their consciences, the best of their Understanding, and the cnstome of war in like cases." The Articles of 1672 and 1686 contain a similar requirement. In Article 22 of the British Code of 1717 the clause was inserted requiring the case to be tried " without partiality, favor or affection," and upon doubt arising " not explained by the said Mutiny Act and the Articles of "War," then, as before directed, "according to their consciences, the best of their understanding and the custom of war in like cases."" This oath was required to be administered to members of the inferior courts-martial by Article 6, Section l4, of the Eesolation of Congress of May 31, 1786. 'So oath was required of the members of a regimental or garrison court in England until 1805.° The oath in substantially its present form appears as Article 6, Section 15, of the British Codes of 1765 and 1774; in the American Articles of 1776 ' Dig. J. A. Gen., 95, par. 7. « Clode, Mil. Law, 113. ='2Jja.,129. THE ARTICLES OF WAB. 605 and in the revision of the section relating to the administration of military justice, by the Kesolutiou of Congress of May 31, 1786, the oath of the British Code of 1774 is replaced by two forms of oath, the first containing the clause respecting the trial, the second the undertaking to administer justice and the clauses relating to the disclosure of the finding and sentence. The single form is restored in No. 69 of the Articles of 1806, and is so re-enacted in the Articles of 1874. The clause permitting the disclosure of the finding and sentence to the judge-advocate was inserted by the Act of July 27, 1892." Procedure. — This Article m akes the admini gfif"''"g ^" ^'^° n^nrf nf ^^^^o form of oath thereby prescribedan essential preliminarv to its entering upon a tfial."^ Until the oath is taken as specified, the court is not qualified " to tpy-^UT-etermine. " The arraignment of a prisoner and reception of his plea — which is the commencement of the trial — before the court is sworn is without legal effect. The Article requires that the oath shall be taken not by the court as a whole, but by " each member." Where, therefore, all the members are sworn at the same time, the judge-advocate will preferably address each member by name, thus: " You, A. B., C. D., E. P., etc., do severally swear," etc. A member added to the court after the members originally detailed have been duly sworn should be separately sworn by the judge-advocate in the full form prescribed by the Article; otherwise he is not qualified to act as a member of the court. A member who prefers it may be affirmed instead of sworn. ° Obligation. — The members are sworn to try and determine the matter before them at the time of the administering of the oath." It is also a departure from the engagement expressed in the body of the oath — to try and determine according to evidence, and administer justice according to the ' 27 Stat, at Large, 378. In the leading case of Dawkins ts. Rokeby it was held by- Justice Willes thiit this oath "is aTjundaut to show that, with respect to all matters which come under the cognizance of the military tribunals, they are subject to a test of law which is different from that administered in a civil court, and it Is to be according to military usages and their approval; whereas here (in the Court of Common Pleas) we- have a test according to the law and custom of Engliind, that is to say, the law and custom which regulate ordinary transactions out of the Army." Dawkins ««. Rokeby, 4Fos. &Pin.. 833. 2 See, in this connection, G. O. 15. Headquarters of Army, 1880, cited under "Judge- advocate." section 1, which, in directing that judge-advocates shall be detailed for regi- mental and garrison, as well as general, courts-martial, rescinds G. O. 49 of 1871, pre- scribing a special form of oath for the former courts, and thus provides for their taking the dne and regular oath recited in Article 84. Dig. J. A. Gen., 96, par. 1, note 1. ' Dii. J. A. Gen., 96. par. 1. * Ibid., 97, par. 2. In a case, therefore, where, after the court had been sworn and the accused had been arraigned and had pleaded, an additional charge, setting forth a new and distinct offense was introduced into the case, and the accused was tried and convicted upon the same, lield that, as to this charge, the proceedings were fntnlly defective, the court not having been sworn to try and determine such charge.* Ibid. * See General Court-martial Orders, No. 39, War Dept., 1867; Gen. Orders, No. 13, Northern Dept., 1864. 506 MILITAST LAW. Articles of War, etc. — for a court-martial to determine a case either upon personal knowledge of the facts possessed by the members and not put in evidence, or according to the private views of justice of the members inde- pendently of the provisions of the code.' Where the vote of each member of the court u pon one of several specifica- tions upo n which the accjia ed. was tried was -stated in the record of trials it wSsTTeld that such statement was a clear viola^tion of the oath of the courts though it did not aft'ect tEe validity of the proceedings or sentence. A statement in the record to the effect that all the members concurred in the finding or in the sentence, while it does not vitiate the proceedings or sen- tence, is a direct violation of the oath prescribed by this Article.' The obligation in respect to secrecy arose out of the necessities of the case. In the early practice of courts-martial, subsequent to the passage of the Mutiny Act, the books of the War Office show that the finding of each member came up before the crown or general; with a view to the security of the members, the oath of secrecy was imposed as early as Queen Anne's reign and has continued to the present day." " ^The words " a court of justice " are deemed to mean a civil or criminal court of the United States, or of a State, etc.,* and not to include a court- martial.' A case can hardly be supposed iu which it would become proper or desirable for a court-martial to inquire into the votes or opinions given in closed court by the members of another similar tribunal.' "/-'^he disclosure of the finding and sentence to the judge-advocate is / expressly authorized by statute; such disclosure, however, to a clerk by / permitting him to remain with the court at the final deliberation and enter _jr>^ / the judgment in the record is a violation of the oath and a grave irregu- ^ ( larity, though one which does not affect the validity of the proceedings or V^^ sentence.' Abticle 85. When the oath has been administered to the members of a court-martial, the president of the court shall administer to the judge-advocate, or person officiating as such, an oath in the following form : " You, A B, do swear that you will not disclose or discover the vote or opinion of any particular member of the court-martial, unless required to ^ v.: ■ Dig. J. A. Gen., 97. par. 3. Compare G. O. 21, Dept. of the Ohio, 1866; G. C. M. O. 41, Dept. of Texas, 1874. ' Ihid., par. 4. = Clode. Mil. Law, 114. * The only case which has been met with in which the members of a court-martial have been required to disclose their votes by the process of a civil court is that of In re Mackenzie, 1 Pa. Law J. R., 356, in which the members of a naval court-martial were compelled, against their objections, to state their votes as given upon the findings at a particular trial. ' In the corresponding British Article the words "or a court-martial" are added after the words "a court of justice." » Dig. J. A. Gen., 98, par. 6. ' IIM., par. 5. THE ARTICLES OF WAR. 507 give evidence thereof, as a witness, ly a court of justice, in due course of law ; nor divulge the sentence of the court to any iut the proper authority until it shall ie duly disclosed by the same. So help you God." The judge-advocate's oath appears as Article 6, Section 14, of the British Code of 1774 in the following form: " I, A. B., do swear that I will not upon any account, at any time whatsoever, disclose or discover the Vote or Opinion of any Particular Member of the Court- Martial, uiiless required to give Evidence thereof as a Witness by a Court of Justice in a due course of Law." It was repeated in this form as Article 3, Section 14, of the American Articles of 1776, and was re-enacted without change in the Eeso- lution of Congress of May 31, 1786. In the Articles of 1806, the words " upon any account, at any time whatsoever " were omitted, and the Article appears as No. 69 of that code in precisely the same form in which it appears in the Articles of 1874. The member's oath imposes certain duties upon the officers to whom it is administered, in respect to the conduct of the trial, to which is added the obligation of secrecy as to the vote or opinion of any member, and the nndertaking not to disclose the sentence until it shall have been disclosed by the proper authority. The oath of the judge-advocate, on the other hand, imposes no duties save that of secrecy in respect to the findings and sen- tence, which are obtained by him, not from his own knowledge or observa- tion, but as they are disclosed to him by the president of the court with a view to their being entered upon the record. • Aeticle 86. A court-martial may punish, at discretion, any person who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings ly any riot or disorder. Article 66 of the Prince Rupert Code contains the following provision: " The Officer or Souldier, who shall presume to draw his sword in any place of Judicature while the Court is sitting, shall suffer such punishment as shall be inflicted upon him by a Court-Martial. And We do hereby autho- rize our Provost-marshal General of Our Army, by his own authority, to apprehend such offenders. " Although this offense must have related to a particular form of contempt offered to a civil court, it is not so restricted by its terms. Article 73 of the same code related to the offense of actual con- tempt of a military cX)ur't, and appeared in the following form: " No man shall presume to use any braving or menacing words, signs, or gestures, where any of the aforesaid Courts of Justice are sitting, upon pain of suffer- ing such punishment as the Court-martial shall think fit." With a slight verbal change, this provision appears as Article 16, Section 15, of the British Code of 1774, as follows: " No person whatsoever shall use menacing Words, Signs, or Gestures in the Presence of a Court Martial then sitting, or shall cause any Disorder or Riot, so as to disturb their proceedings on the Penalty of being punished at the Discretion of the said Court-Martial." With the 508 MILITARY LAW. I substitution of " whatever" for " whatsoever" in the first line, it appears as Article 14, Section 14, of the American Code of 1776, and with a rever- sion to the earlier form of " whatsoever " it appeared as Article 14, Section 14, of the Resolution of Congress of May 31, 1786, and was re-enacted with- out change as Xo. 76 of the Articles of 1806. In its present form the arrangement of clauses is not quite the same as in the corresponding Article of 1806, but its force and legal effect are unchanged. The power of a court-martial to punish, under this Article, being con- fined practically to^Trts-done in its immediate presence, such a court can have no authority to punish, as for a contempt, a neglect by an officer or soldier to attend as a witness in compliance witlTa summons.' Where a contempt within the description of this Artide has been com- mitted by a person subject to military jurisdiction and the court deems it proper thaFthe offender shall be punished, the proper, gourse is to suspe nd t he regular business, and, after giving th e party an opp ortunity to be heard in defense, to pr oceed, if the explanation is i nsufficient, to im pose a punish- ment, resumi ng there upon the original proc eedin gs. The action taken is properly summary, a formal triaT not "5eing called for. Close confine ment i n quarters or in t he guard-h ouse durin^_the trial of thfLESDding case, or fo rfeiture of a r easonab le amount o f pay, has been the more usual punish- lafijlt. Jnstead of proceeding against a military person for a contempt, in the mode^ co mem plate"5~ "By" this ^rtTcleTB] e alternative course maybe pur- sued of^Jhringiligiiim to trial before a new court on a charge for a disorder under Article 62." Refusal of a Civilian Witness to Testify. — A court-martial has none of the common-law power to punish for contempt vested in the ordinary courts of justice, but only such authority as is given it by this Article. For this reason a court-martial would not be authorized to punish, as for a contempt, under this Article (or otherwise), a civilian witness duly summoned and appearing before it, who, when put on the stand, declines (without disorder) to testify.' In such a case th e witness is prnfi g.g ded against in a ccordance with the method prescribed in the Act of March 2, 1901,* which provides that ''Every person jot belonging to the Army of the United States who, being duly subpoenaed to appear as a witness before a general court-martial of the Army, wilfully neglects or refuses to appear, or refuses to qualify aa a witness to testify or produce documentary evidence which such person may have been legally subptenaed to produce, shall be deemed guilty of a ' Dig. J. A. Gen., 98, par. 1. ' Ibid. , par. 3. Compare Samuel, 634. The latter course has not infrequently been adopted in oar service. • lUd., 99, par. 2. See, also, 18 Opin. Att.-Gen., 278. * Act of March 2, 1901 (31 Stats, at Large, 951). TBE ABTI0LE8 OF WAR. 509 mis demeanor, for w hich such person s hall be pu nished on information in '^t Ee" district court of ~the United ij tates ; "and it__shan_be, thg. duty of the United States di strict attorney, on t lie~certification of the facts to him by , / the general court-martial. ^o fil e an information against and prosecute the '^ poranri fift nfPonrliTig^ p.pH the piin ishm ent of ~such "person, on d myictioh, Rha.ll bfi a, fma-n f not, mnrfi than five hundred dollars or imprisonment not to exceed six months , or both, at the discretion of the court: Provided, That tji is shall not apply to persons residing beyond the State, Territory, or dis- t rict \yi which su , ^fh f yRnq]-;^^] r.nurt-ma rtial is held, and that the fees of such witness, and his mileage at ttie rates provided for witnesses in the United Sta tes district court fo r said Sta, te, Territory, or dMrJcl, shalLbejiuly paid o r tendered said witness, suchjmounts to be paj^. by the-^y Department of the Araiy ou j; of th e appropriation for the. ..compensation of.witnessesT^ro- vided, That no witness shall be compelled to incriminate himself or to answer any questions which may tend to incriminate or degrade him." ^ Aeticle 87. All members of a court-martial are to behave with decency and calmness. Article 60 of the Prince Eupert Code contained the requirement that " those who are judges in Our General Court-martial, or in regimental Court-martials, * * * shall demean themselves orderly in the hearing of causes (as becomes the gravity of such a court) * * * . " This provision appears as a part of Article 7, Section 15, of the British Code of 1774, in . the following form : "All the Members of a Court Martial are to behave with decency and, in the giving of their votes, are to begin with the youngest." The requirement was repeated as Article 4, Section 14, of the American Code of 1776, with the addition of the words " and calmness" after the word " decency " in the first line; with a view to remove doubt as to the meaning of the word " youngest," a legislative interpretation was placed upon it by the addition of the words " in commission." In this form the clause was re-enacted as Article 7, Section 14, of the Resolution of Con- gress of May 31, 1786, and as the first clause of No. 72 of the Articles of 1806. In the Articles of 1874 this Article was divided into two; the requirement as to the behavior of members constituting the 87th Article, while that respecting the order of voting was embodied in the 98th Article of that Code. Aeticle 88. Members of a court-martial may be challenged by a prisoner, but 'only for cause stated to the, court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one mem- ber at a time. 1 Act of Marcli 2, 1901. (31 Stats, at Larjje, 9.51.) Tbe power to proceed against a wit- ness for refusing to testify before a court-martial was conferred in England in 1830. 11 Geo. IV., ch. 7, sec. 16. 510 MILITARY LAW. The right of challenge was fii'st established, as a custom of service, bj analogy to the right of challenge which existed in behalf of an acccsed person at the common law. The privilege was recognized by statute, for the first time, in England by Section 5 of the Mutiny Act of 1847. The right first received statutory sanction in the United States by Article 71 of the Code of 1806, and was re-enacted without substantial change as No. 88 of the Articles of 1874.' Extent of the Bight. — This Article authorizes the exercise of the right of challenge before all courts except field-officers' courts and summary courts. These courts are not subject to be challenged, because, being composed of but one member, there -is no authority provided which is competent to pass upon the validity of the challenge." The Article imposes no limitation upon the exercise of the right of chal- lenge other than that " more than one member shall not be challenged at a time." Thus while the panel, or the court as a whole, is not subject to challenge, yet all the members may be challenged provided they are chal- lenged separately. Tlie Article J22Il!if-l"-" "" "'"'^■)"'l?'''ity ,'''"'' fih''^^°"gin[;; the Judge-advocate,' „^The terms of the Article also forbid what are called peremptorychallenges," that is, objections to members for which no cause is stated. Time of Making. — Where, before arraignment, the accused (an officer), without having personal knowledge of the existence of a ground of challenge to a member, had credible hearsay information of its existence, it has been held that he should properly have raised the objection before the members were sworn, and that the court was not in error in refusing to allow him to take it at a subsequent stage of the trial.' Courts sho uld be liberal in passing upon challenges, but should not entertain an objection which is not specific, or allow one'upon its mere asser- tion by the accused without proof, and in the absence of any admission on the part of the member.' ' See the title " Chiillenges " in the chapter entitled Incidents op the Triai,. 2 Dig. J. A. Gen., 99, par. 1. ^ Ibid., 102, par. 15. Challenges to the away, though expressly forbidden in the Article, seem to have been not unknown to the English practice during the period prior, to 1847, where the rinht rested upon analogy to the corresponding civil procedure. Houah, Precedents, 662, 663. See ms to tlu; iudge-advociite. Dig. J. A. Gen., 457, par 8. The practice of challenging this officer ceased, in pursuance of a War Office order, in 1830, * Dig. J. A. Gen., 102, par. 13. The fact that a sufficient cause of challenge exisis against a member hut. through ignorance of his rights, is not taken advantage of by tlie accused, or if asserted is improperly overruled by the court, can affect in no mimner the validity in law of the proceedings or sentence, though it may sometimes properly furnish occasion for a disapproval of the proceedings, etc., or a remission in whole or in part of the sentence, i'id., piv: 14. See, also, 15 Opin. Att.-Gen., 432; Keyes m. V S., 15 Ct. Cls,, 582; ibid., 109 U. S . 33fi. 5 See Dig. J. A. Gen., 101, par. 12 and note. THE AETIGLES OF WAB. 511 The Voir Dire Form of Oath. — The following is the form of oath to Tdo administered to members or witnesses: "You swear that you will true answers make to questions touching your competency as a member of the ■court (or witness) in this case. So help you God." ' Article 89. When a prisoner, arraigned iefore a general court-martial, from obstinacy and deliberate design stands miUeoransivers foreign to the u, purpose, the court may 2'>^op^^d_to trialajid P^ji'^^^t.,^^ iftKTpnsone'TKad pleaded not guilty. Under the ancient criminal practice of England, if a prisoner charged with a capital felony stood mute, it was deemed that no trial or conviction could be had, and the prisoner was obliged to undergo i\iQ peine forte and ■dure, that is, to be pressed to death in prison." This punishment is said to have been inflicted in England so late as the beginning of the last century. In 1772 an Act was passed in England, which was to extend to the colonies and plantations in America, by which if any person arraigned upon an indictment for felony or piracy should stand mute, the trial was to be pro- ceeded with, and the court was to award Judgment and execution as if such person had been convicted by verdict or upon confession.^ Such conviction, however, took place only when the refusal to plead was willful; if it was due to defect of understanding, the defendant was remanded, and the question of such defect of understanding was tried by the jury. Congress in the first •Crimes Act/ passed in 1790, adopted the humane rule that, in all capital cases defined by that Act, standing mute should be equivalent to a plea of not guilty.' Although courts-martial seem to have interpreted standing mute as a plea of not guilty from a very early period, the practice first received statutory sanction in the United States in No. 70 of the Article of 1806. Article 90. The judge-advocate, or some person deputed by him, or by the general or officer commandi^ig the Army, detachment, or garrison, shall prosecute in the name of the United States ; but when the prisoner has made his plea, he shall so far consider himself counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the ^prisoner, the answer to which might tend to criminate himself. The 64th of the Prince Rupert Articles contained the requirement that " in all criminal causes which concern Our Crown, Our Advocate-General or Judge- Advocate of Our Army, shall inform the Court and prosecute in Our behalf "; which is repeated in the 53d of the Articles of James II. in 1686. In Article 6, Section 15, of the British Codes of 1765 and 1774 it ' Manual for Courts-martial, edition of July, 1898, p. 28. - The efiect of tbis was to preserve the blood of the prisoner from taint and to per- mit his descendants to inherit. I. Stephen Hist. Crim. Law, 298, 299. 3 13 Geo. III., chap. 20. * Section 30, Act of April 30, 1790 (1 Stat, at Large, 119). » In re Smith, 13 Fed. Rep., 25. X ^12 MILITARY LAW. ^ is provided that " the Judge-Advocate -General or some person deputed by Tiim shall prosecute in His Majesty's Name," and this provision is repeated IS Article 3, Section 14, of the American Articles of 1776, the prosecution being, however, in the name of the United States of America. In the amendment of this section by the Eesolution of Congress of May 31, 1786, the above requirement appears, to which for the first time the clause is added that the judge-advocate " shall so far consider himself as counsel of the prisoner, after the said prisoner shall have made his plea, as to object to any leading question, to any of the witnesses, or any question to the prisoner, the answer to which might tend to criminate himself." In this form the requirement was embodied as No. 69 of the Articles of 1806. While, as has been seen, the American Articles have since 1786 imposed upon the judge-advocate the somewhat incompatible duties of prosecutor and counsel for the accused, a contrary tendency has manifested itself in England, where, since 1860, it has been expressly provided in the Articles of War ' that the judge-advocate shall no longer act as prosecutor, or appear, as a witness for the Government, during the progress of the trial ; ■' his duties being restricted to the summoning of witnesses, the administration of oaths, the preparation of the record of proceedings, and advising the court in matters of law. So much of the first clause of this Article as authorizes the judge-advo- cate to depute "some person" to prosecute for him is now practically obsolete. In the British Articles of 1774 the Judge- Advocate General was vested with authority to " depute " a person to represent him in the capacity of public prosecutor. In the early American Articles the principal officer of the Judge- Advocate General's Department was styled indifEerently Judge- Advocate and Judge- Advocate General, and he was similarly empowered to depute a suitable officer to conduct prosecutions in behalf of the United States. The Act of March 16, 1802/ vested the power to appoint "a fit person to act as Judge-Advocate " in the President of the United States, and in cases where the President shall not have made such appointment the Brigadier-General,' or the president of the court may make the same." This provision was not incorporated in the Articles of 1806, although the power to prosecute is there vested in " the Judge- Advocate, or some person deputed by him, or by the general or officer commanding the army, detach- ment, or garrison." The office of Judge- Advocate, or Judge- Advocate General, was not in existence between April 10, 1806, the date of the adop- tion of the Articles of that year, and March 2, 1849, the date upon which 1 Article 163, British Code of 1860. « Clode, Mil. Law, 110. » Stat, at Large, 132. The brigadier-general here referred to being the senior officer of the Army as then constituted. THE ARTIGLES OF WAR. 513 the statute reviving the office of Judge-Advocate of the Army became opera- tive;' it was therefore impossible for the judge-advocate of a general conrt- martial to have been "deputed" to act in such capacity by that officer. During that interval Judge-advocates were selected by convening officers acting under the authority conferred by the 69th of the Articles of 1806. In the Articles of 1874, although the clause is left standing as a part of the 90th Article, the power to appoint judge-advocates is held to be derived from the authority expressly conferred in the 74th Article of War. , Article 91. T he, dcpnxrf.innx nf wi.f.n g &i e i rp ii dinq hm/nnd tM Kmitx of I \/, the State, Territory, or district in which any ^nilitary court may le ordered ' to'^tt^if taken on reasonable notice to the opposite paxty and duly authenti- cated, may he read in evidence before such r.mi.ff. j.n mwa ^fi.ni r.(^.pU.nl. This provision appears for the first time in statutory form as Article 10, Section 14, of the Eesolution of Congress of May 31, 1786. It was re-enacted as No. 74 of the Articles of 1806. The present Article is an enactment oi 1863.' In the early history of court-martial procedure the evidence was in many cases (civil rather than criminal) taken by affidavit sworn before the Judge- Advocate General,' who would seem to have exercised a jurisdiction in some respects resembling that of the grand jury. As there was no express authority for the introduction of depositions in England, the conclusion is warranted that if such instruments of evidence were introduced in court- martial trials it was rather from analogy to the civil procedure, and was not regarded as a matter of absolute right, to be exercised in pursuance of authority conferred either by the Mutiny Act or by the Articles of War. At present there is in the British service no specific authority of law for the admission of depositions upon the trial of military offenses properly so called. Such right as may be said to exist is based upon an interpretation of two statutes' which permits the introduction of testimony by deposition in the trial of offenses punishable by the ordinary criminal law.' Scope of the Article. — It is the purpose of this Article, in its application to cases properly falling within its scope, to provide a means of securing the testimony of witnesses who reside at a considerable distance from the place in which the court may be ordered to sit. While the statute is in general permissive in character, there are some cases in which its operation is rather directory than affirmative or permissive merely. An accused party, therefore, cannot be deemed to be entitled to have a witness summoned from a distance whose military or administrative duties are of such a character that they cannot be left without serious prejudice to the public interests. Article VI of the Amendments to the Constitution, 1 9 Stat, at Large, 351. 2 Section 29, Act of Marcli 3, 1863 (12 Stat, at Large, 736). » Clode, Mil. Law, 137. * 11 and 12 Vict., ch. 43, sec. 17, and 30 and 31 Vict., ch. 35, 36. ' Manual of Mil. Law, 86. 514 MILITABT LAW. declaring that the accnsed shall be entitled " to be confronted with the wit- nesses against him," applies only to cases before the United States courts.' Where the evidence of high officers or pnblic officials — as a department commander, or chief of a burean of the War Department — is required before a court-martial, — especially if the court is assembled at a distant point, — it should be taken by deposition if authorized under this Article. Such officers should not be required to leave their public duties to attend as wit- nesses, except where their depositions will not be admissible, and where the case is one of special importance and their testimony is essential.' In respect to the cases brought within its operation by the Article, how- ever, its terms are mandatory, and a deposition cannot be read in evidence in a capital case — as in a case of a violation of Article 31, or a case of a spy, or one of desertion in time of war; otherwise in a case of desertion in time of peace. Xor is the deposition admissible of a witness who resid es in the State, distrtcl^, .etc. , wit'liin wtiich the court is held,_exceptby consent.*^ The deposition must also be "duly authenticated. " The ICfticle, in specifying that the deposition, to be admissible in evidence, shall be " duly authenticated," makes it essential that the same shall be sworn to before, i.e., taken under an oath administered by, an official competent to administer oaths for such pnrpose. A deposition should now be sworn to before one of the military officers specified in the Act of July 27, 1892,* or, if such an officer be not accessible, by a civil official competent to administer oaths in general. An official, empowered to administer oaths only for a certain special purpose or purposes cannot legally qualify a witness whose deposition is sought to be taken under this Article.' ' Dig. J. A. Gen.. 753, par. 10. Thus where the offense charged is not capital, and a. deposition may therefore legally be taken iinder the 91st Article of War, the Secretary of War will not in general authorize the personal attendance at the place of trial of a witness whose otfire or duty makes it necessary or most important that he should remain elsewhere. TUd. ' Ibid., 104. par. 3. The Secretary of War should not be required to attend as a wit- ness, or to give his deposition in a military case, where the chief of a stafi corps or other officer in whose bureau the evidence sought is matter of record, or who is per- sonally acquainted with the facts desired to be proved, can attend or depose in his stead. Ibid. '^ Ibid., 104. par. 1. Note the remarks of the reviewing authority in G. C. M. O. 103, Dept. of the East, 1871 ; do. 1, Division of South, 1875. ^ Sec. 4 of the Act of July 27, 1893, (27 Stat, at Large, 278,) provides that judge- advocates of departments and of courts-martial, and the trial officers of summary courts, ar(^ hereby authorized to administer oaths for the purposes of the administration of mili- tary justice and for other i^urposes of military administration. The Act of July 27, 1892, c. 373, s. 4, in authorizing certain military officers to administer certain oaths, does not, of course, affect the power of other officials lo administer such oaths who may have been authorized to administer them before the passage of the Act. Such officials may still administer the same, and, when doing so, should be paid their fees as notaries, commissioners, etc., as before. But, to avoid expense, it is desirable to resort to the officers empowered by the statute, where prac- ticable. Diir. J. A. Gen., 539, par. 4. ' Dig. J. A. Gen., 105, par. 9. THE ASTICLES OF WAR. 516 A cou rt-martial has uo power to qualify or authorize a commanding £^' o fficer, or any other officer or person, toTalce aTSepositioiror administer an oath.^ — —— , __„~....-" A deposition, iutroduced by either party, which is not "duly authenti- cated " should not be admitted in evidence by the court, although the other party may not object. A deposition would be thus irregular and inadmis- sible where it failed to show that the officer by whom it was taken was authorized to take it, or that he was qualified to administer the oath to the witness." Procedure. — The Judge-advocate, in forwarding the interrogatories for a deposition, should transmit with them a subpoena (in duplicate) requiring the witness to appear, at a stated place and date, before a certain person who is to take the deposition. Particulars not ascertained may be left blank to be supplied by the officer or person by whom the subpoena is served. When the deposition has been duly taken and returned, the judge-advocate should transmit to the wituess (or to some officer, etc., for him) the usual certificate of attendance (accompanied by a copy of the convening order), the duration of the attendance to be ascertained from the deposition.' The officer detailed to have a deposition taken, i.e., to see to its being taken, should, before serving the subpoena, complete it, if necessary, by . inserting the name and official designation of the notary (or other official having authority to administer the oath) before whom it is to be taken, and the date on which, and the place where it is proposed to take it. And when the deposition has been duly taken, he should certify it as so taken, and transmit it in a sealed package to the president of the court." Ci vilian wjt nesses_who duly give their depositions under this Article are^ j^/^ entitled t_0_thfi..sama-fees and allnwa.nf^P^-a.gaTrR-^filpfa'^gwhn rlnly pHpnrj ,|,|io court inngsse'H!^- The voucher tq enable such a witness to obtain his dues should simply set forth the facts as to his service, substituting, for the usual statement in regard to attendance before the court, a statement that he duly attended as a witness at a certain time and place, and duly gave his deposition before a certain official named." ' Diff. J. A. Gen., 106, par. 11. '^ 2 nid., 105, par. 8. ^Ibid., 463, par. 36. « Ibid., 106, par. 15. * See Manual for Courts-martial, 38, par. 1-7. See, also, Circular No. 9, H. Q. Army, 1888. ' Dig. J. A. Gen., 106, par. 16. Held that duly attending by a civilian witness before a duly authorized oflBcial to give a deposition, to be used in evidence on a military trial, was to be regarded as practically equivalent to attending a court-martial, and that the deponent was entitled to be paid the usual allowances {i.e., the same as those of wit- nesses appearing before the court) out of the regular appropriation for the "compensa- tion of witnesses attending before courts-martial." Ibid., 759, par. 36. Held that the sum of $3, disbursed by an officer ordered to procure a deposition to be / 516 MILITABY LAW. ^> .^ Admission in Evidence. — This Article, in any case within its terms and in which its conditions are complied with, entitles either party to have depositions taken and "read in evidence." The court alone has no power to decide that a deposition, where legal and material, shall not be taken." A deposition daly taken, nnder the Article, on the part of the prosecu- tion, is not subject to objection by the accused and cannot be rejected by the court merely upon the ground that it is declared in the Sixth Amendment to the Constitution that " in all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him. " This constitutional provision has no application to courts-martial; the "criminal prosecutions " referred to are prosecutions in the United States civil courts.' The party at whose instance .a. deposition has been taken can not be admitted, ag ainst the"objection of^ the jitlier..partyi, to introduce only such parts of the deposition as are favo rable toh im or as he may elecTto use ; he mnat ofFerJjis depoaitfon.in, evidence as a whole or not ofEer it at all." If the party at whose instance a deposition has been taken decides not to put it in, it may be read in ev idence by tht^ o ther party. One party cannot withhold a deposition (duly taken and admissible under this Article) against the consent of the other.* / Questions as to the c ompetenc y or credibility of the deponent are deter- / mined by the coji rt. and the deposition of an incompetent deponeni'," tTi<"igli formal and properly obtained and not subject to exception in respect to validity of execution, is not admissible in evidence at a trial by court- martial. ' Abticle 92. All persons who give evidence before a court-martial shall he examined on oath or affirmation in the following form : " Ton swear (or affirm) that the evidence you shall give, in the case now in hearing, shall he the truth, the whole truth, and nothing hut the truth. So help you God." The swearing of witnesses was first required by the Articles of 1666, which authorized the judge-advocate " to send for witnesses, and to admin- ister an oath, in order to the examination and trial of all offenses." Prince Eupert's Code and the Articles of 1673 and 1686 were silent on this subject; but those of 1717 directed "that all witnesses should be examined upon oath." In the Articles of 1748, and in those subsequently issued until the taken, hs a payment to a justice of the peace before whom the deposition was given, would legally he reimbursed, on the presentation of a proper voucher, by the Quarter- master Department, out of the appropriation for the expenses of witnesses before courts- martial. Ibid., 107, par. 17, ' Dig. J. A. Gen., 105, par. 7. ^Ibid.. 107, par. 18. Ubid.. 104, par. 3. 'Ibid., 105, par. 4. ' Where a deposition introduced by the prosecution, though legal, was incomplete. THE ARTICLES OE WAR. 617 year 1805, the oaths were imposed only in cases tried before general courts; but in the year 1805 (against the advice of many general officers, including the Duke of Wellington) Parliament for the first time imposed oaths upon the judges and witnesses in regimental courts/ Article 8, Section 15, of the British Code of 1774 contaiaed the require- ment thab "all persons who give evidence before a general court-martial are to be examined upon oath "; which is repeated in Article 5, Section 14, of the American Code of 1776, and in Article 8, Section 14, of the Eesolution of Congress of May 31, 1786; in which, also, for the first time an affirma- tion is authorized. The present form of witnesses' oath was first prescribed in No. 73 of the Articles of 1806, which was re-enacted as No. 93 of the Articles of 1874. The ancient procedure of the regimental and garrison courts-martial, being to a great extent summary in character, did not require the administration of oaths to either members or witnesses. They were first authorized as to such courts in England in 1805.' An oath was first required to be administered to all witnesses by Article 8, Section 14, of the Resolution of Congress of May 31, 1786. The Article prescribes a single form of oath or affirmation to be taken by all witnesses. Th e Consti tution, jiowever , has, provided ° that Con gress | / shall make no law-p rohibiting the free exercise sL religion. . Where^Jhsfe- \i£ fore, th e prescribed form is not in accordance with thejreligious tenets of a / witnes s, he should be permitted to be sworn according jtojhe, ceremonies of/ his own faith or as hgjmaj^deem binding on liis conscience.' The Artlc lq, d.nes-n nt prescribe by whi,om™the,.„aa4ilufesiLbe administered. / /^ By the custom of _|;hp. RAryipp , jt. .iH^.fl.iimin.kr.prMT by J^_ j adge-adTOcatel " { Whs & the judge-advocate himself t akes the witness s tand, he is properly swo rn by the president of the_cou rtT' """" " but the defect was waived by the accused, it lias been held that the prosecution was estopped from afterwards questioning it as competent evidence. Ibid., 106, par. 14. Where the judge-advocate offered in evidence, on the part of the prosecution, a deposi- tion which proved to have been given by a person other than the one to whom the inter- rogatories were addressed, and the accused objected toils introduction, but the objection was overruled by the court, held error ; the fact that the intended deponent was but the agent, in the transaction inquired about, of the person who actually furnished the deposition, not being sufHcient to make such deposition admissible except by consent of parties. Dig. J. A. Gen. , 105, par. 6. See Gen. Court-martial Order No. 9, H. Q. Army, 1879. The provisions of Sections 866-870, Revised Statutes, relate to depositions in the United States courts and have no application to courts-martial, which are no part of the United States judiciary. Held, therefore, that there was no authority whatever for pre- scribing, as was done in General Order 2, Department of Texas, 1888, that the laws of Texas in regard to the taking of depositions should govern depositions in military courts held within that State. Jbid., par. 19. 'Clode, Mil. Law, 136. '45 Geo. III., oh. 16, sec. 17. No form of oath, however, is prescribed by statute, or by the Articles of War in the British service. ' Article I of Amendments. * Dig. J. A. Gen., 107, par. 1; I. Greenleaf, § 371; O'Brien, 260. ' Ibid., 108, par. 3; see Sect, Act of July 37, 1893 (37 Stat, at Large,* 278). « Ibid., par. 3. / 618 MILITARY LAW. A witness who has once been sworn and has testified is not required to he resworn on being subsequently recalled to the stand by either party. The reswearing, however, of such a witness will not afEect the legal validity of the proceedings or sentence.' Article 93. A court-martial shall, for reasonable cause, grant a contin- uance to either party for such time, and as often as may appear to he just : provide d that if the prisoner be in clos e confin ement, the trial shall no t le delayed for a period lonqe jjJhan jsixt v d.qi{s . This provision first appeared in statutory form as Section 29 of the Act of March 3, 1863;" prior to that date the matter was regulated by custom of service. Reasonable Cause. — What constitutes " reasonable cause," within the meaning of the Article, is a matter for the determination of the court. "Where, however, such " reasonable cause " is, in the judgment of the court, exhibited, the party is entitled to some continuance under the Article." A refusal, indeed, by the court to grant such continuajjce will not invalidate the proceedings, but, if the accused has thus been prejudiced in his defense, may properly constitute good ground for disapproving the sentence,* or for mitigating or partially remitting the punishment.' Procedure. — In making an application for a continuance or postponement under this article on account of the absence of a witness, it should distinctly appear in the affidavit of the applic_ant__that the witness is material and 1 Dig. J. A. Gen., 107, par. 3. ' 12 Stat, at Large, 736. ' It would properly be so held upon common-law principles, even independently of the positive terms of the Article. In Rex vs. D'Eon, 1 W. Black. , 514, it was declared by Lord Mansfield that " no crime is so great, no proceedings so instantaneous, but that upon sufficient grounds the trial may be put off." Dig. J. A. Gen., 109, par. 2. * See G. C. M. O. 35, "War Dept., 1867; do. 128, Hdqrs. of Army, 1876; G. O. 34, 'Dept. of Arizona, 1874. ' Dig. J. A. Gen., 109, par. 2. Where an accused soldier, by reason of his regiment having been moved a long distance since his arrest, was separated at his trial from cer- tain witnesses material to his defense, Iield that he was entitled to a reasonable continu- ance for the purpose of procuring their attendance or their depositions. Ibid., par 3. That the charges and specifications upon which an accused is arraigned differ in a material particular from those contained in the copy served upon him before arraign- ment may well constitute a sufficient ground for granting him additional time for the preparation of his defense. Ibid., par. 4. Where after arraignment a material and substantial amendment is allowed by the court to be made by the judge-advocate in a specification, the effect of which amend- ment is to necessitate or make desirable a further preparation for his defense on the part of the accused, a reasonable postponement for this purpose will in general properly be granted by the court. Dig. J. A. Gen., 109, par. 5. It is in general good ground for a reasonable continuance that the accused needs time to procure the assistance of counsel if it is made to appear that such counsel can probably be obtained within the time asked, and that the accused is not chargeable with remissness in not having already provided himself with counsel, llkd., 110, par. 6. THE ARTI0LB8 OF WAR. 519 •whY, and th at the party has used due dil igence to procure h is a ttendan ce, ly^ np i l . h . nn rnn , r , nnn , m a- -g.rnnTi ( ft n helipve, and floes bfiljeye, tha t he WJll be able '^ to procure such attendance within _a_rea,soaable time s tated.' While the court may refuse the application if the conditions above set forth be not fulfilled, it may, in its discretion, refrain from insisting that the same be strictly complied with, and accept a modified form." It should, however, in all cases require that the desired evidence appear, or be shown to be, material and not merely cumulative," and that to await its production Avill not delay the trial for an unreasonable period. It should also, in general, before granting the continuance, be assured that the absence of the witness is not owing to any neglect on the part of the applicant. This feature, however, will not be so much insisted upon in military as in civil cases.* ' Dig. J. A. Gen., 108, par. 1; Manual for Courts-martial, p. 29, par. 3. 'It is not the practice of courts-manial to admit couDter-alEdavits from the opposite party as to wliat the absent witness would testify. And as to the civil practice, see Williams ««. Slate, 6 Nebraska, 334. * Compare People «s. Thoaipson, 4 Cal., 288; Parker m. State, 55 Miss., 414. ■•Dig. J. A. Gen., 108, par. 1. A raililary accused cannot be charged with laches in not procuring the attendance at his trial of a witness who is prevented from being pres- ent by superior military authority. Thus in a case in G-. O. 63, Dept. of Dakota, 1872, an accused soldier was held entitled to a continuance till the return of material witnesses then absent on an Indian expedition. Postponements. — Postponements, strictly speaking, are granted by the convening autliority in virtue of his power to constitute courts-martial ; continuances are granted by the court itself under the authority conferred by the above Article. The subject of postponements is regulated by the officer appointing the court, in accordance with the following requirements of the Manual for Courts martial : If postponement is necessary, application tljerefor should properly be made to the convening authority before the accused is arraigned.* Application for extended delay will, when practicable, be made to the authority appointing the court. When made to the court, and if in the opinion of the court it is well founded, it will be referied to the convening authority to decide whether the court shall be adjourned or dissolved. f The 94th Article of War, which was repealed by Section 2 of the (Act of March 2, 1901 (31 Stats, at Large, 951), contained the requirement that " Proceedings of trials shall be carried on only between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court, require immediate example." The hours of session were fixed at from 8 A.M. to 1 p.m. in the first Mutiny Act. In Article 9, Section 15, of the British Code of 1774 the period of each day within which courts-martial may lawfully sit is fixed at from eight in the morning to three in the after- noon "except in cases which require an immediate example." This provision was adopted as Article 7, Section 14, of the Articles of 1776, and as Article 11, Section 14, of the Resolution of Congress of May 31, 1786, in which for the first time the power to ad- judge the necessity for sitting beyond the statutory hours is vested in the convening authority. As so modified, the clause was re-enacted as No'. 75 of the Articles of 1806, and as Article 94 of the revision of 1874. There is now no requirement of law which prescribes the hours of session of courts- martial, which are regulated by the court itself, in the exercise of the general discretion in respect to matters of procedure which is vested in it, by the rules of parliamentary pro- cedure. Since the repeal of the 94th Article it is of course no longer legally necessary * Manual for Courts-martial, p. 29, par. 1. + Ibid., par. S. '/ ^ 520 MILITARY LAW. Aeticle 95. Members of a court-martial in giving their votes shall begin with the youngest in commission. This provision does not appear in the Prince Eupert Code. In the ^' English Military Discipline " of James II. it is provided that " the Cap- tains shall sit according to rank, the Liententants, Sub-Lieutenants, and Ensigns have right to enter the Eoom where the Councel of War (or Court Martial) is held. But they are to stand at the Captains backs with their hats off, and have no Vote." The same Article contained the requirement that " the youngest Officer gives his Opinion first, and the rest in order till it comes to the President, who speaks last." Article 7, Section 15, of the British Code of 1774 provides that members, " in the giving of Votes, are to begin with the youngest. " The American Articles of 1776 contain the same provision; at the end of the clause, however, the words "in commission" are added. In this form the clause appears as the last clause of No. 72 of the Articles of 1806 and as No. 95 of the Articles of 1874. Article 96. N o person sha ll he sentenced to suffer death except l y the concurrence of two-tlnrds gfthe membets of a ge?ieral court-m artia l an3, in the cases herei7i e^resslg mentioned^ ~" The (ieath-penalty, either in the form of a mandatory or discretionary sentence, appears with great frequency in the earlier codes of military law. The cases in which it is authorized to be inflicted, however, diminish in number with the advance of civilization and the improvement of military discipline. The first Mutiny Act contained the requirement that in all cases *' where the offender may be punished with death, the Judges were to be sworn upon the Holy Evangelists well and truly to try and determine, etc., * * * and nine of them at least were to concur in the sentence." Article 8, Section 15, of the British Code of 1774 contained the requirement that " no sentence of death shall be given against any offender, * * * unless Nine officers present shall concur therein." This provision was repeated in Article 5, Section 14, of the American Articles of 1776, and as Article 8, Section 14, of the Eesolution of Congress of May 31, 1786, and as No. 87 of the Articles of 1896, which contained the added requirement that no death- sentences were to be imposed "except in the cases herein expressly men- tioned." In this form it was re-enacted as No. 96 of the Articles of 1874.' that the record should show affirmatively the hours of meeting and adjournment. With a view to show the correct sequence of trials, when more than one takes place on the same day, it is proper and, indeed, the best practice that the hour of meeting and adjournment should be set forth in the record. ' Though it has sometimes been viewed otherwise, it is deemed quite clear upon the terms of the present Article that it ia not necessary tnt^a legality "^f ft |^«n.t.|i-Bnntfnr.o tbatjiwn thirds jif the court should have r.onci|rTprt in jge findTn "^" as weU"a3 tTie'sen. TEE ARTIOLES OF WAR. 521 Article 97. No person in the military service shall, under the sentence 0/ a court-martial, he -punished ly confinement in a penitentiary unless the ■offense of which he may be convicted would, by some statute of the United States, or by some statute of the State, Territory, or District in which such offense may be committed, or by the common law as the same exists in such State, Territory, or District, subject such convict to such punishment. This enactment, which is peculiar to the military jurisprudence of the United States, is in substance a legislative recognition of the principle that military ofEenses, as such, are not felonies, and that conviction of such oifenses should involve none of the disabilities which attach to the status of felony at common law. The status of felony, in the criminal practice of the United States, is either created by statute, in the enactment describing a particular offense and defining its punishment, or is determined by the place in which the sentence, if of imprisonment or confinement, is to be executed. If such sentence involves confinement in a State prison or penitentiary, the punishment is infamous and, as such, operates to confer some of the ■disabilities incident to felony. As military offenses properly so called, such as desertion , disobedience of order s, neglect of duty, and the like, jJejaot felonies, it was not the intention of Congress that any of the consequences of felony should attach to any ofiicer or soldier who was convicted of them ; as a result Congress in 1863 enacted this Article, the operation of which is to restrict sentences of imprisonment in State prisons and penitentiaries to offenses which " would, by some statute of the United States, or by some lence .* Further , ia tbe,ahsEm:e-a£..anYt;^gujjfimfiil,t,to that effect in tlm AvHplR.itisTint 1^ t wo-thirds of the cour t C0fl£Ujifid«Uiereiu7 The practice, ho weverThasbe ea to add such A statement. Ijig. J. A. Gen., 113, par. 1. "' " A sentence of death imposed by a court-martial upon a couviction of several distinct ■offenses will be authorized and legal If any one of such offenses is made capitally pun- ishable by the Articles of War, although the other offenses may not be so punishable. Ibid., par. 3. A court-martial in imposing a death-pentence should not designate a time or place for iis execution, such a designation not being within its province, but pertaining to that of the reviewing authority. If it docs so designate, this part of the sentence may be disregarded, and a different time or place fixed by the commanding general. Ibid., par. 3. Where a death-sentence imposed by a court-martial has been directed by the proper authorili^ to be executed on a particular day, and this day, owing to some exigi'Mcy of the service, has gone by without the sentence beina; executed, it is competent for Ihe same authority or his proper superior to name another day for the purpose, the time of its execution being an immaterial element of this pimishment.f Ibid., par. 4. ^ * Compare McNaghten, 120. t It was held by the Supreme Court in Coleman vs. Tennessee (7 Otto, 619. 620) that a soldier who had been convicted of murder and sentenced to death by a general court-martial in May, 1865, but the execution of whose sentence had been meanwhile deferred by reason of his escape and the penden.^v of civil proceedings in his case, might at tlie date of the ruling (October term, 1878) " be delivered un to the military authorities of the United State.s. to be d-alt-with as required by law." More recently (May, 1879; 16 Opins., 349) it lias been held in this case by the Attorney-General that the death-sentence might legally be executed notwithstanding the fact that the soldier liad meanwhile been discliarged from the service, such discharge, while formally separating the party from the Arm v being viewed as not affecting his legal. status as a military convict. But in view of all the circumstances of the case it was recommended that the sentence be commuted to imprisonment for lite or a term o£ years. / 622 MILITARY LAW. statate of the State, Territory, or District ia whicli sach offense may be committed, or by the common law as the same exists in such State, Terri- tory, or District, subject such convict to such punishment." As this Article, by necessary implication, prohibits the imposition of confinement in a penitentiary as a punishment for offenses of a purely or exclusively military character," it follows that a sentence of penitentiary confinement in a case of a purely military offense is wholly unauthorized and should be disapproved. Effect cannot be given to_suc h a sentence by com- muting it to confineme nt in a mi litary prison, or to som e other_£unishment which woul d be legal for such of fense. N or, in^c agg. of _fiu.clL>n offense, ^,.--7 can a severer penaltyj^as death, be c ommuted to confinement in a peniten- tiary.' An offense charged as "conduct to the prejudice of good order and mili- tary discipline," which, however, is in fact a larceny,^ embezzlement, violent crime, or other offense made punishable with penitentiary confinement by the law of the State, etc., may legally be visited with this punishment.* The term " penitentiary," as employed in this Article, has reference to civil prisons only — as the penitentiary of the United States or District of Columbia at Washington, the public prisons or penitentiaries of the different States, and the penitentiaries "erected by the United States" ' in most of the Territories. The military prison at Leavenworth is not a penitentiary ' Dig. J. A. Gen., 113, par. 1. ' Ibid., par. 2. Nor can peniientiary confinement be le,fi;alized as a punishment for purely military offenses by designating a penilenliary as a "military prison," and order- ing llie confinement there of soldiers sentenced to imprisonment on couvicliou of such ofien'ses. lUd , par. 3. Held Ihat penitentiary confinement could not legally be adjudged upon a conviction of a violation of the 21st Arlicle, alleged in the spedlicatioh to have consisted in the lilt- ing up of a weapon (a pistol) against a commiiudiu!; officer and discharging it at him ■wilh intent to kill. By charging the ollense under this Article, the Government elected to treat it as a purely military olfeuse subject only to a military punishment. 8o, upon a conviction of joining in u. mutiny, in violation of Article 23, Jield that a sentence of confinement in a penitentiary would not be legal although the mutiny involved a homi- cide, set forth in the specification as an incidental agi^ravating circumstance. To have warranted such a punishment in either of these cases the Government should have treated the act as a " crime," and charged and brought it to trial as such, under Article. 62. IMd., 115, par. 10. " Obtaining money under false pretenses " is punishable by confinement in a peni- tentiary bv the laws of Arizona. A sentence of court-marl ial. imposing this punishment on conviction of an offense of this description committed in this Territory', charged as a crime under Article 62, field authorized by Article 97. Ibid., par. 12. ^ In a case of larceni/ the court should inform itself as to vphellier the value of the property stolen be not too small to permit of peiiitentiarry confinement for the offense under the local law. See G. O. 44, Eighth Army Corps, 1862; G. C. M. O. 63, Dept. of the Platte, 1872. See, also. Dig. J. A. Gen., 115, par. 1-3. '' Dig. J. A. Gen., 114, par. 4. So, too, where the act is charged as a crime under- Article 62, and charge and specification taken together show an offense punishable with confinement in a penitentiary by the law of the locus of the crime, the sentence may legally adjudge such a punishment. So held in a case where charge and specificatioa together made out an allegation of perjury under Sec. 5392, Rev. Sts. Ibid. , 115, par. 11. ^ See Sec. 1892, Rev. Stat., and the Act of March 2, 1895 (27 Stat, at Large, 957). TEE ARTICLES OF WAR. 523 in the sense of the Article. The term State (or State's) prison in a sentence is equivalent to penitentiary. ' A court-martial, in imposing by its sentence the punishment of confine- ment in a penitentiary, is not required to follow the statute of the United States or of the State, etc., as to the term of the confinement. It may adjudge, at its discretion, a less or a greater term than that affixed by such statute to the particular offense. At the same time the court will often do well to consult the statute, as indicating a reasonable measure of punishment for the offense." Where a soldier is sentenced to be confined in a penitentiary, the proper reviewing authority may legally designate any State or Territorial peniten- tiary within his command for the execution of the punishment. Where there is no such penitentiary available for the purpose, or desirable to be resorted to, he will properly submit the case to the Secretary of War for the designation of a proper penitentiary.' Bat where a sentence of confinement is expressed in general terms, as where it directs that the accused shall be confined " in such place or prison as the proper authority may order," or in terms to such effect, it has been held that the same may, under this Article, legally be .executed by the com- mitment of the party to a penitentiary, to be designated by the reviewing officer or Secretary of War, provided of course the offense is of such a nature as to warrant this form of punishment." A military prisoner duly sentenced or committed to a penitentiary becomes subject to the government and rules of the iastitution.' A sentence of confinement in a penitentiary, however, where legal, may be mitigated to confinement in a military prison or at military post." Abticle 98. No person in the military service shall be ^mnished iy flog- ging, or iy iranding, marking, or tattooing on the iody. ' Dig. J. A. Gen., 114, par. 5. Wbere a court-martial specifically sentences an accused to conflnement in a "military prison," he cannot legally be commilted to a penitentiary, although such form of imprisonment would be authorized by the character of his offense. iAiif.. par. 9. 2 Ibid., 114, par. 8. ^ Ibid., par. 7. See paragraphs 910 and 941, Army Regulations of 1895. '^ Ibid,., par. 9. ^ Ibid., par. 6. A discharged soldier serving a sentence of confinement in a State or Territorial penitentiary still remains under military control, at least so far as that his sentence may, by competent military authority or by the President, be remitted, or may be mitigated — as, for example, to confinement in n military prison or nt a military post. Where the place of confinement is a State or Territorial penitentiarj' which is within a department command, the commander ma.y legally remit or mitigate theseuience. But the President may limit thisauthority by excluding such penitentiaries from the dep.irtment command. The function of remitting the sentences of discharged soldiers confined in penitentiaries is now, by regulation, restricted to the President.* Ibid., 116, par. 16. « Ibid., 116, par. 15. * The power to pardon or mitigrate punishment impospd by a court-martial, vested in the authority which confirms the proceedings, exiends arily to unexecuted portions of a sentence, and continues only while the prisoner remains under the jurisdiction of that, authority ; the fact that a soldier has been disiionorably discharged through his sentence does not alTect this power. An application for clemency in case of a general prisoner sentenced to conflnement in a penitentiary will be forwarded to the Sec- retary of War for the action of the President. Par. 916, A. E. 1895. 524 MILITARY LAW. The first limitation upon the infliction of flogging as a military punish- ment appeared in the provision of No. 87 of the Articles of 1S06 depriving general courts-martial of the power to award more than fifty lashes by way of punishment for any military offense. Flogging was discontinued as a punishment by Section 7 of the Act of May 16, 1812; ' it was revived, how- ever, as a puaishment for desertion, and continued to exist as such until 1861, when, by the Act of August 5th of that year, it was finally abolished. Article 99. No officer shall he discharged or dismissed from the service, except ly order of the President, or ly sentence of a general court-martial ; and in time of peace no officer shall ie dismissed except in pursuance of the sentence of a court-martial, or in mitigation thereof. Article 48 of the Prince Eupert Code provided that "all commissions granted by Us, or Our General, to any Ofiicer in pay, shall be brought to the Muster Master, who is to record and enter the same in a book fairly written. And no Commissioaed Ofiicer shall be allowed in musters, without a commission from Us or Our General, and the same entered with the Com- missaries-General of the musters, or their Deputies, who are required forth- with, and from time to time, to send the Ofiacers names to the Secretary and Judge Advocate of Our Forces." This seems to have been the first attempt to create and defiue the status of commissioned ofiicers in the British military establishment. Article 49 of the same code contained the requirement that " no Commissioned OSicer, after inrollment and being mustered, shall be dismiss'd or cashier'd, without order from Us or Our General, or Our General Court-Martial." This provision, however, reserved the power of dismissal to the sovereign, or to the general commanding-in-chief, unless such dismissal was in pursu- ance of the sentence of a general court-martial. The power to terminate the engagement of a commissioned ofiicer by dismissal, upon the ground that his services were no longer needed, has been recognized from the earliest times as an essential incident of the royal prerogative; the tenure of military ofiice in England being at the pleasure of the sovereign. A similar power of summary dismissal was recognized to exist in the President, as an incident of his power to make appointments to ofiice, from the foundation of the Government under the Constitution until 1866, whe nth e enactment of t his _^Article ' restricted the executive power of_sunimary jismissal to a time of ""x war. _ ™ " Dismissal by executive order is quite distinct from dismissal by sentence. The latter is a punishment; the former is removal from office.' The power ' 2 Slat, at Large, 735. ^ Act of August 5, 1861 (12 State at Large, 317). = Act of July 13, 1866 (sec. 5.), (14 Stat, at Large, 92). A similar provision is con- tained in Seciion 1229 of the Revised Statutes; see, also. Act of June 6, 1873 (17 Stat, at Large 261). * See 7 Opins. Att.-6en., 251. THE ABTICLES OF WAS. 525 to dismiss, which, as being aa incident to the power to appoint public officers, had been regarded since 1789 as vested in the President by the Con- stitution,' was for the first time in 1866 expressly divested by Congress in so far as respects its exercise in time of peace." By the statute law it is now authorized only in time of war.' Procedure. — The summary dismissal^ of an officer in time of war is effected by the issue of an order designatin g tlifj nffip.pr by na.mp.; fho r-gi-ipp may~be state d or withheld, at the discretion of the Presiden t. A summary dismissal "by order of the Secretary of War" is in law the act of the President.* A summary dismissal of an officer does not properly take effect until the order of dismissal or an official copy of the same is delivered to him, or he is otherwise officially notified of the fact of the dismissal.' In summarily dismissing an officer the Executive cannot at the same time deprive him of pay due. Nor can the right of an officer to his pay for any prior period be divested by dating back the order of dismissal. Such an order cannot be made to relate back so as to affect the status or rights of the officer as they existed before the date of the taking effect of the order of dismissal.' ' See, as among the principal authorities on this subject, Commonwealth i>s. Bussier, 5 Sergt. & Rawle, 461; Ex parte Heunen, ISPeters, 358, 209; United States m. Guthrie, 17 Howard, 307; 4 Opins. Att.-Gen., 1, C09-613; 6 id., 5, 6; 7 id., 251; 8 id., 230-233; 12 id., 424-436; Sergeant, Const. Law, 373; 3 Story's Com., § 1537, note; 1 Kent's Com., 310; 3 Marshall's Washington, 163. ' See 16 Opins. Ati.-Geu., 315. ' During the late war it was exercised in a great number of cases, sometimes for the purpose of summarily ridding the service of unworthy officers, sometimes iu the form of a discharge or muster-out of officers whose services were simply no longer required. The distinction between this species of dismissal and dismissal by sentence is illus- trated by the fact that the former has, with the sanction of legal authority, been repeatedly ordered in cases where a court-martial has previously acquitted the officer of the very oflfense; on acooimt of which the summary action has been resorted to. Dig. J. A. Gen., 369, par. 1; see, also, 13 Opiu. Att.-Gen., 421; McElrath m. U. S., 13 Ct. Cls., 201. * Ibid. . 370, par. 3. A department or army commaiuler can have, of course, no author- ity to summarily dismiss or discharge an officer from the military service. But where, in a case of a regular officer, this authority was in fact exercised, and the Preside nf, treating his oliice as vacant, proceeded to fill tlie vacancy by a new appointment, held that he had made the dismissal his own act and legalized the same.* So where (in 1863) an officer of vojuntet'rs was dismissed by the order of an army cominander, which was never ratified iii terms by the President, but a successor, appointed to the vacancy by the governor of llie State, was accepted- and mustered in by the United Siates, held {in 1880) that the dismissal was to be regarded as having been substantially ratified and legalized. So an unauthorize I dismissal, by order of a regular officer, may be in effect made operative by a subsequent appointment and confirmation of a successor — as In Blake's Case.f 5 Dig. J. A: Gen., 370, par. 5. ' Ibid., 369, par. 3. Held that it could not affect the operation of an order suminarily dismissing an officer as "second-lieutenant" that, before its being communicated to him by being promulgated to the regiment, he had become by promotion a first lieutenant. Ibid., 370, par. 6. * leOpin. Att-Gen.. 298. t Blali'i vs. V. S., 103 U. S., z V'1 626 MILITABT LAW. Effect of Dismissal. — There can b e no revocation of a duly executed order of dis missal, however unmerited or inju dicious the original act may be '"V* d eemed to h ave been. For, distinct as dismissal by order is, in its nature, from dismissal by sentence, the effect of the proceeding in divesting the oflBce is the same in each case. An officer dismissed by an order, though his dis- missal may have involved no disgrace, is assimilated to an officer dismissed by sentence, in so far that he is completely relegated to a civil status, having in law no nearer or other relation to the military service than has any civilian who has never been in the army. Thus an order assuming to revoke a legal order of dismissal is as unauthorized as it is inefEectual. The original dis- missal is an act done which cannot be undone, and the order, which is the evidence of it, is therefore incapable of revocation or recall.' Nor can that be effected indirectly which cannot legally be done directly. An officer dismissed by executive order cannot be relieved by being allowed to resign or be retired, or by being granted an honorable discharge. For, in order to be discharged, etc. , from the Army, he must first be in the Army, and there is but one mode by which an officer once legally separated from the Army can be put into it, viz., by a new appointment according to the Constitutiou.' • See40pins. Att.-Geu., 124 ; Hid., 424r-8 ; Hid., 520 ; 15id., 658. A contrary view expressed by the Court of Claims, in its earlier period, in a series of ciises, — see Smith m. United StiUes, 2 Ct. CI., 206 ; Winters vs. United States, 3 id., 136 ; Barnes to. United States, Aid., 216 ; Montgomery m. United States, 5 id., 93, — was finally practically aban- doned in McElrath vs. United Slates, 12 id , 201. » Dig. J. A. Gen.. 371, par. 8. See 8 Opins. Att.-Gen., 235; 12 id., 421 ; 13 id., 5 ; McElrath to. United States, 12 Ct. CIs., 202. That a summary dismissal is not revocable by an executive order is established Law. Where an officer duly summarily dismissed in July, 1863, and subsequently restored by au order assuming to revoke the order (if dismissal, procured to be passed by Congress in 1890 an Act recognizing his restoration as legal, which, however, was vetoed by the President, held thathis status was that of a person who had been illegally in the mili- tary service since the date of the order of so-called revocation. Ibid., par. 9. Held that the ruling in Blake's Case* was applicable, and that the office of an army officer misht legally be vacated by the appointmem and commission of a successor, although between the office of the original officer and that of the successor there may have intervened a tenure by a third officer. Thus: (1) Captain A was dismissed from his office without legal authority; (2) Captain B, an unassigned officer, was as.-^igned to the captMincyof A, and held it till his own resignation, one year and three mouths later ; (.3) Lieutenant C was then promoted aiul appointed to the office, and his appoint- ment was confirmed. Held that Lieutenant C was the legal incumbent of the office. Ibid.. 372, par. 12. Held that the ruling of the Supreme Court in the case of Blake was not applicable to volunteer officers of State organizations, and that a Governor of a Stale, who had duly appointed a certain volunteer officer in a regiment, was not empowered to dismiss him by simply appointing to the same office, commissioning, and causing to be mustered into the U. S. seivice another person. Ibid . par. 13. Held that it was quite evidently the intention of Congress in the Act of July 15, 1870, s. 12, that the commissions held by the officers who remained unassigned on January 1, 1871, should cease on that day. No action on the part of a mustering officer was required to carry the law into efiect— as is shown by G. O. 1 of January 2, 1871, in * Blake vs. U. S., 103 U. S., 231. THE ARTICLES OF WAR. 527 A dismissal of an office r by execu tive .or.der_does^iiqt operate to disqualify ji/ him for reaD.pou itmeri |:^ to militarj^fficei_OT.fOT ,,ap;^oi ntme nt to civiToffice / tiiider the United States. '^'Trial of Dismissed Officer. ^ — It is provided in Section 1230, Eevised Statutes, that when any o fficer dismissed by order of the President makes in writing an application for trial, petting forth un_der oath that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court;-martial to try such officer on the charges on which he shall have been dismissed. And if a court-martial is not so convened withinsix mouths from the presentation of such amplication f of trIaI7 "orTTsiicE court^ being convened, does not award dismissal or death asthe punishment of such pffi cgi, ..th e order of dismissal by the President s hall be vo id.' The statute does not indicate within what period after the dismissal the application for a trial should be made. It can only be said that, in submit- ting it, due diligence should be exercised — that it should be presented within a reasonable time.° Though it may be sufficient that the application made under the statute should state simply that the applicant has been " wrongfully " dismissed, the preferable form would be for the applicant to set forth in what the alleged wrong consisted." The Act of March 3, 1805,'' which first restricted the power of the Presi- dent in respect to the dismissal of officers, referring as it does to officers "hereafter dismissed," was not retroactive in its operation, and did not which the separation from tlie service, on January 1st, of the uuassigned officers was formally announced. Dig J. A. Gen., 873, par. 14. See Street ««. U. S., 133 U. S., S99. The President had not the same power of dismissal in the case of a volunteer officer as he has in that of a regular officer. This for the reason that the tenure of office of the former is for a fixed term and for a limited time only ; the power to dismiss is thus, in his case, notan incident of the appointing power.* But the President was invested with a special power of dismissal of volunteer officers by the Act of Congress of July 17, 1863. Ibid , par. 11. Where, by the direction of the President, an order was issued canceling the muster- in of a volunteer officer on account of fiicts indicating that he was not a fit person to hold a commission, Jield that this was a legal exercise of the authority of summary dis- missal for cause vested in the President by the Act of July 17, 1862. Ibid., par. 10. ' Acts of March 3, 1865, (sec. 13,) (13 Stat, at Large, 489,) June 23, 1874, (sec. 3,) (18 ibid , 192). "Dig. J. A. Gen,, 378, par. 2. To take advantage of the benefit conferred- by this section, the officer must apply for trial within a reasonable time after dismissal or acqui- escence will be presumed. A delay of nine years in a particular case held to create such presumption of acquiescence. Newton «». U. S., 18 C. Cls. R., 435; Germainetis. U. S., 26 ibid. . 383. Held that a party who (without any sufficient excuse) delayed for nine years to apply for a trial under the statute might well be regarded as having waived his rigiit thereto. It could scarcely have been contemplated by Congress thai a dismissed officer should be at liberty to defer his application for a trial till the evidence on which he was dismissed, or a material part of the same, had ceased to exist, and his restoration would thus be made certain. Ibid. 'Ibid., 874. par. 3. *Sec. 13, Act of March 8, 1865 (18 Stat, at Large, 489). * Mechem on Public Officers, S83, § 445. 528 MILITARY LAW. embrace cases of ofi&cers dismissed by order before the date of its passage. And it has been similarly held as to the provision now incorporated in Sec- tion 1230, Bevised Statutes ; the same, though somewhat differently worded from the original statute, being construed as not intended to enlarge the application of the latter.' Although the Act provides that if the sentence of the court be not one of death or dismissal the party tried shall be restored to his office, yet it has been held, in a case in which the court acquitted the accused, that the President possessed the authority, vested in reviewing officers in all other cases tried by court-martial, of returning the proceedings to the court for revision, and was therefore empowered to reassemble the court for a recon- sideration of the testimony, on the ground that the same did not, in his opinion, justify the acquittal/ Abticle 100. JMien an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name, and place of alode of the delinquetit shall be published in the nezvspapers in and about the camp, and in the State from tvhich the offender came or where he usually resides ; and after such publication it shall be scandalous for an officer to associate with him. This Article appeared for the first time in statutory form as Article 33, ' Dig. J. A. Geii., 373, par. 1. Tliis slatiite was held liy the Attorney-Geaeral (12 Opiiis. 4) not to be unconslitutioual in that it was not "obnoxious to the objection that it invades or fru.stiate3 tlie power of the President to dismiss an officer." More serious objections to its constitutionality are believed to be : (1) that it authorizes the subjecting to military trial of a civilian; (3) that in restoring an officer to the Army it substitutes the action of a court-martial for the appointing power of the President. See, also, 16 Opin. Alt.-Gen., 599. Where a trial of a volunteer officer under this statute resulted in an acquittal, and his original dismissal thus became " void," but meanwhile his regiment had been mustered out of service, held that he was properly entitled to an honorable discharge as of the date of the muster-out of the regiment, with full pay and allowances up to that time. Dig. J. A. Geu., 374, par. 4. Whatever might be the effect under existing law upon the status of a volunteer offi- cer, acquilted or not dismissed by a court-martial upon a trial under this statute, of the fact that the vacancy created by his original dismissal had been meanwhile filled, held that the effect in a similar case of an officer of the regular army would be to add him to the army as an extra officer in his previous grade. Ibid., par. 5. Under the statute of 1865 there were but few trials; this legislation having been fol- lowed in the next year by the provision of the Act of July 13, 1866, (now incorporated in the second clause of Sec. 1229, Eev. Sts., and the 99th Article of War,) prohibiting executive dismissals of officers of the Army and Navy in time of peace. Since the date of this Act thure have been no trials under the Act of 1865; the later statute indeed would aijpear to have deprived the earlier one of all present application and effect. Thus held (December, 1879) that an officer dropped for desertion under the first clause of Sec. 1229, Rev. Sts., was not entitled upon application therefor to a trial under Sec. 1230; that the provision of the former section making such an officer ineligible for reappoint- ment in the Army was incompatible with his restoration by the action of a court- martial under the latter section ; and that the latter section applied only to officers dismissed by order of the President under the general power to remove public officers appointed by him and frequently exercised in cases of army officers during the late war, but which as to its exercise in time of peace had been divested by Congress by the Act of July 13, 1866. Ibid., par. 6. ' Ibid., 375, p&v. 7. THE ARTTCLES OF WAR. 52& Section 14, of the American Code of 1776 ; it was repeated in the Eesolution of Congress of May 31, 1786, as No. 85 of the Articles of 1806, and as 'Ko. 100 of those of 1874. The terms " cowardice " and " fraud," employed in this Article, may be considered as referring mainly to the ofEenses made punishable by Articles 42 and 60. "With these, howe7er, may be regarded as included all ofEenses in which fraud or cowardice is necessarily involved, though the same be not expressed in terms in the charge or specification.' Though the injunction of the Article, as to the direction to be added in the sentence, should be regularly complied with, a failure so to comply will not affect the validity of the punishment of dismissal adjudged by the sentence." The declaration of the Article that after the publication ' ' it shall be scan dalous,Jfl£. an ..^^^L.io_agsociate with " the dis missed officer7]|Eou^li_JtJiaa„iuji^e w „Qa§gg °,been incorporated in^the__sentence, is not intended to be,, andj]iflajld^JiQtbe,__so_expressed by Jhe .court." Abticle 101. When a court-martial suspends an officer from command, it may also suspend his pay and emolume?its for the same time, according to the nature of his offense. " This provision appeared for the first time in statutory form as Article 31, Section 14, of the Resolution of Congress of 1786; it was re-enacted without change as No. 84 of the Articles of 1806, and as No. 101 of those of 1874. At the date of the legislation of 1786 suspension was already recognized by custom of service as a punishment properly to be imposed upon commissioned officers; the effect of this enactment, therefore, was to give statutory sanction to a punishment already recognized by custom of service. Form. — The punishment of suspension, as imposed by sentence, is usually in the form of a suspension from rank, or from command, for a stated term, sometimes accompanied by a suspension from pay for the same period. Sus- / 1^ pension from rank includes suspension from command." / ' Dig. J. A. Gen., 117. par. 1. ' Note the action taken in the case publlsheJ in G. C. M. O. 27, War Dept., 1872. »As in cases published in G. O. (A. & I. G. O.) of May 13, 1820; do. 168, Dept of the Missouri. 1865. "Dig. J. A. Gen., 117, par. 3. ^ See, in the chapter entitled Punishments, the title " Punishments of Officers." 'Dig. J. A. Gen., 729, par. 1. Suspension as a punishment for a noncommissioned officer is not authorized in terms in Article 101, nor is it contemplated in the Army Regulations. It has been adjudged in but rare cases,* and cannot be regarded as sanc- tioned by principle or usage. Jbid., 733, par. 15. It is not infrequently impoied, how- ever, as a punishment for cadets at the Military Academy. A sentence " to be suspended from the Military Academy" in a case of a cadet prac- tically severs him from the performance of his duties as a cadet during the terra of the suspension. It is usually added in such a sentence that at the end of such term the party is to join the next lower class. Ibid., 732, par. 18. / * See, tor a comparatively recent instance, G. C. M. O. 33, Dept. of the East, 167S. ■^ y 530 MILITARY LAW. The form of words used in a sentence of suspension should be such as to indicate clearly the scope and character of the punishment intended to be imposed, as " to be suspended from rank," or " from rank and command," or "from rank and pay," and the like. The sentence should also be explicit as to the duration of the suspension. " In rare cases the form ' to be suspended from the service ' has been employed in the sentence. Such a suspension is equivalent in substance to a suspension from rank. A still rarer form, ' to be suspended from duty,' has been deemed to be practically equivalent to a sentence of suspension from command.' These forms are now rarely resorted to." ° / Effects. — Like di smis sal ^ suspe nsion takes effect u pon and from notice of thej,pproval of the sentence officiallx_aQm manicated_toiE^a3iceri either by The promulgation of t!lie same at his station, or, where he is absent therefrom by authority, by the delivery to him of a copy of the order of approval or other form of ofiBcial personal notification of the fact of such approval.' The effect of a suspension from rank (besides detaching the officer from the perforraance of tEeduti^incident to his rank) is to de^ve him of a ny right ofprqmotion to a vacancy in a higher grade occ urrmg j^ p ding the term of suspension, and which he would Tiave been entitled to receive by virtue of seniority had he not been suspended; such ri ght ac cruing to the oflBcer next in rank. But no such loss of promotion is incident to a mere suspension from command.* " It is further the effect of a suspension from rank that the officer loses for the time the minor rights and privileges of priority and ^reced'eiice annexed to rank or command ."'"Among these is the right to select quiy;t|p;;§, relatively / to other offic ers. And where quarters are to be sele cted by several offi cers, ~^ ; one of whom is under sentence of suspension from rank, the suspended officer I necSsariTy~ESTlie last choice. Or rather he has no choice, but quarters are ! assigiiedniim by the commander; for, being still an officer of the Army, though without rank, he is entitled to some quarters. An officer sentenced to be suspended from rank could not, however, because of such suspen- sion alone, be deprived of quarters previously duly selected, and occupied at the time of the suspension ; such a sentence not affecting a right pre- viously accrued and vested." Where, however, the suspension is in terms extended by the sentence to pay, the pay is forfeited absolutely, not merely withheld. And all the pay ' Suspension /roOT duty, as distinguished from suspension from rank, is a recognized punishment in the naval service. Navy Regulations, Article 1750; Hnrwood, 13i-5. The form "to be suspended from rank and duty" occurs in G. C. M. O. 19 of 1885. « Dig. J. A. Gen., 733, par. 13. « Ibid. , 733, par. 14. *Ibid., 730, pnr. 3. » Dig. J. A. Gen., 730, par. 5. K THE ARTICLES OF WAR. 531 is forfeited unless otherwise expressly indicated in the sentence. The for- / fei ture imposed by a sentencejpf suspension from rank (or Mmmand) and I pa^, for a desig nated term, is a forf eitur e ^ of pay _for , that spejiific^^term, the suspension of the rank and that of the pay being coincident. Under such a sentence the officer cannot legally be deprived of pay due for a period prior to the suspension. ' A suspension from rank does not affect the right of the officer to his office. He retains the office, as before, and, as an officer, remains subject to military control, as well as to the jurisdiction of a court-martial for any military ofEense committed pending the term Of suspension." S aspen sion fro m-rank^.d oes not, however, dep rive the officer jjmig^ight to riaa jn files in his g r fi.fjfi^ npon the promotion, for example, of the senior officer of such grade. The number of an o fficer in the list of his grade is / 1^^ nnf fl.n i ncident of his rank, but of his appointment to o ffice as conf e rred a nd '^"^ datej^—a ndj as we have seen, s uspensLQ jft. d.Qe§._n ot affect the office/ More- over loss of files is a continuing punishment, and if held to be involved in suspension from rank the result would be that, for an indefinite period after the term of suspension had expired, the officer would remain under punish- ment, the sentence imposed by the court being thus added to in execution, contrary to a well-known principle of military law." A sentence of suspension from rank and pay does not affect the right of \ V the officer to the allowances which are no part of his pay' — as the allowance for rent of quarters, as also the allowance for fuel or, rather, the right to / purchase fuel at a reduced rate.' Under existing usage (1897) an officer suspended, by sentence, from rank and command is deemed entitled to retain his quarters. But such rule may in some cases work a considerable inconvenience as well as prejudice to discipline; as where, for example, the suspended officer is a post com- mander and continues, pending the term of his suspension and while ' Ibid., 731, par. 8. Where an ofiBcer was seutenced to suspension from rank and pay for six months, lield thaX bis eutire pay for those months was absolutely forfeited not- withstanding that the pay of oliicers of bis grade was increased by statute pending the term. Ibid. Suspension does not affect pay unless expressly forfeited in the sentence. Nor does a commutation of dismissal to suspension affect jiay. Thus where a sentence of dis- missal of a cadet was commuted to suspension for one year, held that he was entitled to full pay during suspension. See note, 5, p., 539, ante). Suspension from rank or command does not involve a loss or authorize a stoppage of pay for the period of suspension.* Pay cannot be forfeited by implication. Unless, therefore, the sentence imposes a suspension from rank (or command) "and pay,'" or in terms to that effect, the suspended officer remains as much entitled to his pay as if he had not been suspended at u,ll, and to require him to forfeit any pay would be adding to the punishment and illegal. Ibid., par. 7. '- Ibid., 739, par. 3. See, also, 5 Opin. Att.-Gen., 740; 6 idem, 715. 8 Ibid., 730, par. 4. " McNaghten, 37. " Dig. J. A. Gen., 731, par. 9. *4 Opin. Att.-Gen., 444; 6 id.. 803. 532 MILITARY LAW. another oflBcer has succeeded him as commander, to occupy the proper com- manding officer's quarters. The adoption of an army regahition prescribing that an officer in such a status shall not be entitled to retain or to select quarters by virtue of rank, but shall have any quarters assigned him that are available at his late station or elsewhere, has been advised as desirable.' Status; Termination. — Suspension not divesting the officer of bis office or commission,' but simply holding iu abeyance the rights and functions attached to his rank or command, he properly reverts, when the term of the punishment is completed, to his former rank and the command attached thereto, and continues to hold and exercise the same as before his arrest or trial.' Suspension from rank does not involve a status of confinement or arrest. In sentencing an officer to be suspended from rank, it is not unusual for the court to require that he be confined during the term of suspension to his proper station or that of his company or regiment, and that the sentence be executed there. " Where th is is not done, while the suspended officer is not entitled to a leave^jjf absence it cannot affect the execution of his sentence to grant hirn one, and leaves of absence are not unf requently granted uniJer sucE circumstances. ' The statas of an officer under suspension is the same whether such sus- pension has been imposed directly by sentence or by way of commutation for a more severe punishment. Thus where a sentence of dismissal was com- muted to suspension from rank on half-pay for one year, it has been held that the officer, while forfeiting the rights and privileges of rank and com- mand during such term, was yet amenable to trial by court-martial for a military offense committed pending the same.* Where an officer, while under a sentence of suspension, is ordered by the commander who approved the sentence, or some higher competent authority, to resume his command or the performance of his regular military duty, such order will in general operate as a constructive remission of the punish- ment and thus terminate the suspension.' Loss of Rank or Files. — A form of punishment similar in its effects to suspension has already been discussed." The effect of this punishment is to ' Ibid., 733, par. 17. Under the ruling of the Secretary of War, as published in Circ. No. 3 (H. A.), 1888. a a officer under suspensio a. but not required by his sentence to be " contined to the limits HI hitl n^s[.''''^^' noi '''entitled to forage f or his horse or borses XJf during the term ofj is s 1 1 sngn sion . IbiS^, par. 18"." ' '" ^—i- - ' ^^—ArfifJSr"' pa'i''.T6^ SullivanTwho (p. 88) traces this punishment to " the ecclesiaslical ivirisdiction which admitted suspension as a minor excommunication," adds, in regard to the officer sentenced : "At the expiration of the term of suspension he becomes a perfect man again." 2 lUd., 730, par. 6. * VM., par. 10. <■ Ibid., 732. par. 11. See McNaghten, 22. ' See the chapter entitled Punishments, ante. TEE ARTICLES OF WAR. 533 depme the oflBcer of such relative right of promotion, as well as right of command, and of precedence on courts or boards and in selecting quarters, etc., as he would have had had he remained at his original number. Such effect continues till the sentence is remitted. But this punishment cannot per SB affect the ofi&cer's right to pay.' Article 102. No person shall be tried a second time for the same offense. This requirement, as it affects the question of Jurisdiction, has formed a part of the Mutiny Act rather than of the Articles of War. The first limi- tation in the prosecution of military offenses was that contained in the Mutiny Act of 1760.' To constitute a bar to trial, the proceedings must (in England as well as in the United States) have been carried to a conviction or acquittal, that is, there must have been a trial, not a mere placing in jeopardy, as is required in the corresponding constitutional limitation. The provision appeared for the first time in the American Articles as the last clause of the Articles of 1806; it appeared as a separate Article as No. 103 of the Articles of 1874. The Constitution declares that " no person shall be subjected for the same offense to be twice put in jeopardy of life or limb." ' The United States courts, in treating the term "put in jeopardy " as meaning practically tried, hold that the ''jeo£ard2_^JadJ,^jtedJ_S3§j5^^ nothing short of the a cc^uittal or conyi cti on of the pr isoner and the judg-/ meni oi the court therean. ' ' * S o it Jia s been heldjihaj^the^term "tried, ' ' ^mploye'dlh this Article^ meaiLt_^?j^ jP?]OggcMfo<^, before a court-martial, to a finaTconvichonjor acquittal j and therefore that an officer or soldier, after having been duly convicted or acquitted by such a coart, could not be sub- jected to a second military trial for the same offense, except by and upon his own waiver and consent. For that the accused may waive objection to a second trial was held by Attorney-General Wirt in 1818,' and has since been regarded as settled law.° Where the accused has been once duly convicted or acquitted he has been " tried " in the sense of the Article, and' cannot be tried again, against his will, though no action whatever be taken upon the proceedings by the reviewing authority, or though the proceedings, findings (and sentence, if any) be wholly disapproved by him.' Tt is_immateria,1 whfifb p.r i^hfi fnrm Ar co nvictioTi.or acquittal is approved or disapproved.' ' Dig. J. A. Gen., 483, par. 3. ' 1 Geo I.,ch. 6, sec. 71. ' Article V of Amenrlments. * United States vs. HasUell, 4 Wash. C. C, 409. And see United States vs. Stioe- makei-, 2 McLean, 114; United States vs. Gilbert, 8 Sumner, 19; United States V8. Perez, 9 Wheaton, 579; 1 Onins. Att.-Gen., 294. But for a difEerent view see Cooley, Consti- tutional Law, 308, and cases cited. " 1 Opins. Att.-Gen., 283. And see, also, 6 id., 205. • Dig; J. A. Gen., 118, par. 1. ' Compare Macomb, § 159, O Brien, 277; Rules for the Bombay Army, 45. » Dig. J. A. Gen., 119, par. 5. 534 MILITAR T LA W. -9' Where an officer or soldier has been duly acquitted or convicted of a specific offense, he cannot, against his consent, be brought to trial for a ( minor oJBense included therein, and an acquittal or conyiction of which was 1 necessarily involved in the finding upon the original charge. Thus a party convicted or acquitted of a desertion cannot afterwards be brought to trial for an absence without leave committed in and by the same act.' Where an officer or soldier, having been acquitted or convicted of a criminaL]^ense_bi[^at£iBL,court,Xs^ brought to Eal by a court:^ artial fo r a military oSense i nvolved in his crimmal^acti_he_cannot ple ad "a fo rmer trial "In the sense~orThis~5jticie. So where the trial for the military offense has preceded, he cannot plead autrefois acquit or convict to an indictment for the civil crime committed in and by the same act." There cannot, in view of this Article, be a second trial where the offense is really the same, though it may be charged under a different description and under a different Article of War. Thus where the Government elects to try a soldier under the 3M Article for "absence wibhout leave," or under the 42d for " lying out of quarters," and the testimony introduced develops the fact that the offense was desertion, the accused, after an acquittal or conviction, cannot legally be brought a second time to trial for the same absence charged as a desertion.' That an accused has been, in the opinion of the reviewing authority, inadequately sentenced, either by a general or an inferior court, cannot ' Dig. J. A. Gea., 118, pnr. 2. Held that there was no " second " trial, in the sense of the Article, in the following cases, viz : where the party, afti-r being arraigned or tried before a court which was illegally constituted or composed, or wns without jurisdiction, was again brought to trial before a competent tribunal; where the accused, having been arr'iigned upon and having pleaded to certain charges, was rearraigned upon a new set of charges substituted for the others, which were wilhdrawn; where one of several distinct charges upon which the accused had been arraigned was withdrawn pending the trial, and the accused, after a trial and finding by the court upon the other charges, was brought to trial anew upon tCe charge thus withdrawn ; where, after proceedings commenced but discontinued without a finding, the accused was brought to trial anew upon the same charge; where, after having been acquitted or convicted upon a certain charge which did not in fact state the real ofilense committed, the accused was brought to trial foi- the same act, but upon a charge setting forth the true ofEense; where the accused was brought to trial after having hatl his case fully investigated by a different court, which, however, failed to agree in a finding and was consequently dissolved ;* where the first court was dissolved because reduced below five members by the casualties of the service pending the trial ; where, foi aray cause, there was a " mistrial, ".or the trial first entered upon was terminated, or the court dissolved, at any stage of the proceedings before a final acquittal or conviction. Ibid., par. 3. 2 Dig. J. A. Gen., 119, par. 4. See, also, 6 Opin. Att.-Gen., 413, .506. Where an officer who had killed a superior officer in an altercation at a military post was brought to trial before a civil court on. a charge of murder and acquitted, and was subse- quently arraigned before a court-martial for the offense against military discipline involved in his criminal act, luW, that a plea of former trial interposed by him was properly overruled by the court. Ibid., par. 7. » lua., 120, par. 9. • See U. S. IIS. Perez, 9 Wheaton, 679. THE ARTICLES OF WAR. 636 except his case from the application of this Article; though insaflBciently punished, he cannot be tried again for the same offense.' Article 103. No person shall be liable to be tried and punished by a general court-martial for any offense which appears to have been committed wore than two years before the i sAuim o f the order for such trial, unless, ty V' reason of having absented himself, or of_spme other rnanifest impediment, he sha lfnoi h ave been amenable to justice within that period. "The first statute of limitation upon the prosecution of military offenses appeared in the Mutiny Act for the year 1760." The period of limitation was fixed at three years, and the statute applied to all military offenses except desertion. The first statutory limitation upon the prosecution of military offenses in the United States appeared as No. 88 of the Articles of 180(5. The time within which a prosecution could be brought was fixed at two years, instead of three as in the corresponding British statute, possibly from analogy to the similar limitation in the practice of the criminal courts of the United States. By the Act of April 11, 1890,' it was provided that " no person shall be tried or punished by a court-martial for desertion in time of peace and not in the face of an enemy, committed more than two years before the arraign- ment of such person for such offense, unless he shall meanwhile have absented himself from the United States, in which case the time of his absence shall be excluded in computing the period of the limitation, pro- vided that such limitation shall not begin until the end of the term for which said person was mustered into the service." In view of this Article it is the duty of the Government to prosecute an / offender within a reasonable time after the commission of the offense.* J ^he ' limitation, however, is -properly a matter of defense to be spe cially pleaded and proved. 1- By pleading th.e general^ issue ihe accused isj,ssumed to waive the I'ight to plead th^lirnitation by a special plea in bar. B jit under a pleai of_not..gmLt^ihe__liaitation may be taken advanta ge of by evjden ce showing t hat it has take n^effect. The prohibition of the Article relates only to prosecutions before general ' Dig. J. A. Geu , 120, ^nr. 6. A soldier wns convicted of " mansliiugliter," but the findings iind sciiience werr disapproved. He was tlien brought lo trial on a oliarge of mutiny, as committed on the occas'ou of the homicide, the latter being alluded to in the speoil5cation as an incidental circumstance of aggravation, and was found guilty and sen- tenced. Beld that llie accused was not, in the sense of this Article, "tried a second lime for the same offense," the mutiny not consisting in the act of homicide, but consliluting a distinct offense. * 1 Geo. I,, ch, 6, sec 71, For a discu-sion of statutes of limitation see the title Pleas in the chapter entitled Thk Incidents of the Trial. ' 26 Statutes at Large, 54. * Dig. J. A. Gen , 124, par. 11. 5 I?i re Bogart, 2 Sawyer. 397; In re White, 17 Fed., 723; In re Davison, 21 Fed., 618; In re Zimmerman, 30 Fed., 176; G. O. 22 of 1893. And compare U. S. vs. Cooke, 17 Wallace, 168. « Dig. J. A. Gen., 124, par. 12. 536 MILITARY LAW. courts-martial; it does not apply to trials by inferior courts. So courts of inquiry may Ije convened without regard to th e period which has elapsed since tiie clateT5TTtetes~of^ffie act or acts to be investigated.' Nor does the rule of limitation apply to the hearing of complaints by regimental courts under Article 30." The liability to trial after discharge, imposed by the last clause of Article 60, has been held subject to the limitation prescribed in Article 103.' And so held as to the liability to trial after the expiration of the term of enlist- ment, under Article 48." By the absence referred to in the original Article, in the clause " unless by reason of having absented himself," is believed to be intended, not neces- sarily an absence from the United States, but an absence by reason of a *' fleeing from justice," analogous to that specified in Section 1045, Eevised Statutes, which has been held to mean leaving one's home, residence, or known abode within the district, or concealing one's self therein, with intent to avoid detection or punishment for the offense against the United States.' Thus it has been held that, in a case other than desertion, it was not essen- tial for the prosecution to be prepared to prove that the accused had been beyond the territorial jurisdiction of the United States in order to save the case from the operation of the limitation.' = 6 0pin. Att.-Gen., 239. ' Dig. J. A. Gen., 134, piir. 10. See Article 30, supra. For application of the terms of the Article to arrests, see Dig. J. A. Geu., 123, par. 7. " See Article 60, supra. - Dig. J. A. Gen., 124, par. 9; 14 Opin. Att.-Gen., 52. ' U. S. vs. O'Brien, 2 Dillon, 381; U. S. vs. White, 5 Cr. C. C, 38, 73; Gould & Tucker, Rev. Stat., 349. 'Dig. -J. A. Gen., 125, par. 14. It is quite cle:ir that any person who takes himself out of the jurisdiction with the intention of avoiding being brought to justice for a particular offense can have no benefit of the limitation, at least when prosecuted for that oSense in a court of the United States. * * * A person fleeing from the justice of his country is not supposed to have in mind the object of avoiding the process of a particular court, or the question whether he is amenable to the justice of a nation, or of the State, or of both. Proof of a specific intent to avoid either could seldom be had, and to make it an essential requisite would defeat the whole object of the provision in question. Sireet m. United States, 160 U. S., 128; United States vs. Smith, 4 Day, 121, 125; Roberts vs. Reilly, 116 U. S., 80, 97. The mere fact that the offense was concealed by the accused and remained unknown to the military authorities for more than two years constitute^ no "impediment" in the sense of the Article. Dig. Opin. J. A. Gen., 123, par. 5. A mere allegation in a specification to the effect that the whereabouts of the offender was unknown to the military authorities during the interval of more than two years which had elapsed since the offense is not a good averment of a " manifest impediment " in the sense of the Article. Ibid., par. 6. A court-martial, in a case of an offense other than desertion, sustained a plea of the statute of limitations in bar of trial for the reason that the jndge-advocale could produce no evidence to show that the accused was not within the territorial jurisdiction of the United States during his absence. Held that such showing was not necessary, and that it was sufiicient that the absence should be any unauthorized absence from the miliiary service whereby the absentee evades and for the time escapes trial. This Qonstructitm of the term "absented himself" in the Article corresponds to that placed on the words " fleeing from justice" as used in the statutes of the United States to designate those whom the statutes of limitation for the piosecution of crimes do not protect. Ibid., 125, par. 15. THE ARTICLES OF WAS. 537 Abticle 104. No sentence of a court-martial shall be carried into execu- tion mitil the same shall have been approved by the officer ordering the court, or by the officer commanding for the time being. The requirement that a court-martial sentence shall be made operative by the approval or confirmation of a reviewing authority is relatively recent in the procedure of military tribunals. The 60th of the Prince Eupert Articles contained the requirement that " when sentence is to be given, the President shall pronounce it; and after that the sentence is pronounced, the Provost-marshal shall have warrant to cause execution to be done according the sentence." Later Articles vest the power to review and confirm proceedings, find- ings, and sentences in the sovereign, or the officer commanding-in-chief, or in certain cases in some person duly authorized by the sovereign under his sign manual; such delegation of authority being in some cases final, and in others provisional only, until the directions of the sovereign could be known.' This is the case in the British Articles of 1765 and 1774, which contain the requirement that " no sentence of a general Court Martial shall be put in execution till after a report shall be made of the whole proceedings to Us, or to Our Commander in Chief, or some other Person duly authorized by Us, under Our Sign Manual to confirm the same; and Our or his Direc- tions shall be signified thereupon," etc. Article 8, Section 14, of the American Code of 1776 required the proceedings to be reported " to Con- gress, or to the general or commander-in-chief of the forces of the United States, and their or his directions be signified thereupon." Article 2, Sec- tion 14, of the Resolution of Congress of May 31, 1786, required the sen- tences involving death or the dismissal of a commissioned officer to be laid " before Congress for their confirmation or disapproval, and their orders in the case." All other sentences were to "be confirmed by the officer order- ing the court to assemble, or the commanding officer for the time being, as the case may be." ' Article 65 of the Code of 1806 vested the power of review in the officer appointing the court except in the cases specified in the last clause of the Article which now constitutes the 105th Article of War. The first clause of Xo. 65 of the Articles of 1806 forms the 104th Article of the Code of 1874; the second clause having been re-enacted as Article 105 of the same Code. The Reviewing Authority. — This term is employed in military parlance ' to designate the officer whose province and duty it is to take action upon — approve or disapprove, etc. — the proceedings of a court-martial after the ' Tlie practice of such delegation seems to have originated with William III. on account of his occasional absences from the kingdom. See I. Clode, Mil. Forces, Appendix, pp. 502, 503. ' There are instance'! in which this power was exercised hy Congress. See 3 Jour- nals of Cong., 37, 144, 158, 386, 714 ; 4 i'M.. 268. 367, 368 ; "Winthrop, 632, note 4. ' The term is also employed iu Section 1228, Revised Statutes. ■528 MILITARY LAW. same are terminated, and when the record is transmitted to him for such action. This officer is ordinarily the commander who has convened the court. In his absence, however, or where the command has been otherwise changed, his successor in command or, in the language of Articles 104 and 109, "the officer commanding for the time being," is invested (by those Articles) with the same authority to pass upon the proceedings and order the execution of the sentence in a case of conviction.' In cases, however, of sentences of dismissal and of death imposed in time of peace, and of some death-sentences adjudged in time of war, as also of all sentences " respecting general officers," while the convening officer (or his successor) is the original reviewing authority, with the same power to approve or disapprove as in other cases, yet, inasmuch as it is prescribed by Articles 105, 106, 108, and 109 that the sentence shall not he executed -with- out the confirmation of the President, the latter becomes in these cases the final reviewing officer, when, the sentence having been approved by the commander (for, if disapproved by him, there is nothing left to be acted upon by the superior), the record is transmitted to' him for his action.' A similar division of the reviewing function exists in cases in which sen- tences are approved, but the execution of the same is suspended, and the question of their execution referred to the President, under Article 111. The same function is also shared between inferior and superior commanders, under Article 107, in cases in which sentences are imposed by division or separate brigade courts; so, under Article 110, in cases of sentences adjudged by field-officers' courts in time of war.' Where a general court-martial is convened directly by the President as Commander-in-Chief, he is of course both the original and final reviewing authority.' Action on Proceedings. — This Article is properly to be complied with by an approval of the sentence (where the same is approved in fact) by " the officer ordering the court," etc., although, as in a case of a sentence of dis- missal in time of peace, he may not be empowered finally to confirm and give effect to the sentence. His approval is required as showing affirmatively that he does not disapprove the sentence, as he is authorized to do.' While approval gives life and operation to proceedings or sentence, dis- approval, on the other hand, quite nullifies the same. A disapproval of the proceedings of a court-martial by the legal reviewing authority is not a mere expression of disapprobation, but a final determinate act putting an end "to such proceedings in the particular case, and rendering them entirely nuga- tory and inoperative; and the legal effect of a disapproval is the same ' Dig. J. A. Gen., 670, par. 1. See, also, the chapter entitled The Reviewing AUTHOKITY. » Ibid., 126, par. 1. TEE ARTICLES OF WAR. 539 whether or not the officer disapproving is aathorized finally to confirm the sentence. Bat to be thus operatiye, a di sapproral. sb.O!,ild...b,e e:yjJ?'^£; ^As , f reque ntly remarked in the opi nions of j:he|iidge-adyocate^general,^the mere y absence of an appro val is "not a disapproYal, nor can a mere reference of the proceeamgs to a sup.e riQr.withQnt words of approval operate as a disapproval of the proceedings or sentence.' The effect of the entire disapproval of a conviction or sentence is not merely to annul the same as such, but also to prevent the accraing of any disability, forfeiture, etc., which would have been incidental upon an approval. A disapproval of a conviction of a par- ticular offense also operates to nullify the conviction of any lesser included offense involved in the conviction of the specific offense charged.^ The "Officer Commanding for the Time Being." — The "officer com- manding for the time being," indicated in this Article, is an officer who has permanently or temporarily succeeded to the command of the officer who convened the court; as where the latter has been regularly relieved and another officer assigned to the command, or where the command of the con- vening officer has been discontinued, and merged in a larger or other com- mand, at some time before the proceedings of the court are completed and required to be acted upon. Thus where, under these circumstances, r separate" brigade has ceased to exist as a distinctive organization and beeL. merged ia a division, or a division has been similarly merged in an army or department, the commander of the division in the one case and of the army or department in tlie other is "the officer commanding for the time being," in the sense of the Article.' The " officer commanding for the time being " must, to legally act, have the necessary qualifications. Thus where the sentence is one of a general court-martial, this officer must have the same rank and status as the conven- ing officer must have had under the 72d Article, i.e., he must be either a ' See 16 Opius. Att.-Gen., 312, wheie it is remarked that it is not a legal disapproval of a conviction or sentence for the original reviewing officer, in forwarding the proceed- ings for the action of superior authority, to indorse upon the same an opinion to the eflect that the finding is not sustained by the evidence. ^ Dig. J. A. Gen , 671, par. 3. A reviewing officer cannot disapprove a sentence and then proceed to mitigate or commute the punishment, since, upon the disapproval, there is nothing left in the case upon whicli any such action can be based. It is quite immaterial to the legal effect of a disapproval wiiether any reasons are given therefor, or whether the reasons given are well foimded in fact or sufficient in law. Ibid. A disapproval of a sentenre by the proper reviewing authority is "tantamount to an acquittal by the court." 13 Opius Att.-Gen., 460. A disapproval of a flndini^ by the proper reviewing authority has the same legal eflect as an acquittal, and the soldier cannot be made to suffer any of the legal conse- quences of a conviction. Ibid., 675, par. 9. ' Dig. J. A. Gen., 127, par. 5. So where, before tlie proceedings of a garrison court convened by a post commander were compleled, Ihe post command had ceased to exist, and the command become distributed in the department, held that the department com- mander, as the legal successor of the post commander, was the proper authority to ap. prove the sentence under this Article. Ibid. 540 MILITARY LAW. general officer commanding the army, division, or separate department, or a colonel commanding a department.' Record of Action in Review. — The approval of the sentence indicated by this Article should properly be of a formal character. An indorsement, signed by the commander, of the single word " Approved," — a form not unfrequently employed during the late war, — though strictly sufficient in law, is irregular and objectionable.' Limits of Reviewing Authority. — The authority of a military commander as reviewing officer is limited to taking action upon the proceedings and sen- tence (if any) by approving or disapproving the same (wholly or in part), and directing the execution of the sentence; and to the incidental function, as conferred by Article 112, of pardoning or mitigating the punishments which have been approved by him. Action not included within these powers he is not authorized to take. Thus he cannot himself correct the record of the court, by striking out any part of the finding or sentence or otherwise, nor can he in general change the order in which different penal- ties are adjudged by the court to be suffered, nor can he add to the punish- ment imposed by the court though deemed by him quite inadequate to the offense.' It is equally beyond the power of the reviewing officer to change a find- ing by his own action. Thus where, in a case of conviction of desertion, the reviewing authority approved "so much only of the finding of guilty of desertion as convicted the accused of absence without leave," it has been held that he had thus substituted a finding of his own for that of the court, and that his action was unauthorized.' Reasons for Disapproval. — While it is not legally essential to a dis- approval that t he reas ons therefor should be stated, a reviewiDg officer may ' in " general ^ specify the reasons for the action taken by him without transcending his authority. Thus where a department commander dis- approved a sentence as inadequate, and in stating his grounds for so doing commented unfavorably upon the conduct of the accused as indicated by the ' Dig. J. A. Grec, 127, par. 7. Where a departmeut command was fiiscontiuued with- out being transferred to or included in any other specific command, held that the gen- eral in command of the Army was "the officer commanding for the time being," and the proper authority to act. under this Article and the 109th, upon the proceedings and sen- tence of a court which had been ordered by the department commander, but whose iuds^ment had not beeu completed at the time of the discontinuance of the command. Ibid., par. 6 ^ Ihid., 12(1, pfir. 3. So lield that a mere statement, written in or upon the proceed- ings, in transmitting them to the President, that the record was "forwarded" for the action of superior autliority, was insufficient as not Implying the requisite approval according to the Article ; and held similarly of a mere recommendation that the pro- ceedings be approved by such authority. Ibid. = Dig. J. A. Gen., 673, par. 3. *Ibid., 675, par. 11. As has been seen, it is within the authority of a department commander, as reviewing officer, in a case in wliich a soldier of his command has been sentenced to confinement in a penitentiary, to designate a particular penitentiary within such command as the place of confinement. Ibid., par. 13. TEE ARTICLES OF WAR. 541 evidence, it was held that such comments were a legitimate explanation of the action taken, and did not constitute an adding to the punishment.' The reviewing authorit^^_^£uld properly authenticate the action taken j^ by him in any_caafij3jL,aubss ribi.ng irT" his jwETEtinT (adding his rank and command, as indicating his legal authority to act) the official statement of the same as written in or upon the record. Impressing the signature by means of a stamp is not favored. = Revision of Proceedings, Finding, or Sentence by the Court.' — Wliere the reviewing officer deems that the proceedings of the court are in any material particular erroneous or ill advised, his proper course in general will be to reconvene the court for the purpose of having the defect corrected, at the same time furnishing it with the grounds of his opinion. Thus if he regards the sentence inadequate, he should, in reassembling the court for a revision of the same, state the reasons why he considers it to be dispropor- tionate to the amount of criminality involved in the offense. But although he cannot compel the court to adopt his views in regard to the supposed defect, he may, in a proper case, express his formal disapprobation of their neglect to do so.* Reconsideration of Action by Reviewing Officer. — A ction taken b^ a ) y reviewing officer upon the •proceedings and sent ence of a court-mart ial may l/ be jecalled and modLh^iQ&lirfm^e^jAa^'^^^^^dL and the party to be affected is ' duly notified of the same. Aft&r_sa^^ot\c(i the action is beyond recall. The power of remissio;)}. irflpg rl, iT^^yJie ^xercised so l ong as any part of the punishment imposed remains unexecuted. But when tbe final approval of the sentence (or other action taken) has been once officially communicated to the accused, the function and authority of the reviewing authority as such, over and respecting the same, is exhausted and cannot be revived. An ' Dig. J. A. Gen., 672, par. 3. 'Dig. J. A. Gen., 674, par. 6. ' See tlie title " Proceedings in Revision" in tlie chapter entitled The Ikcidents op THE Trial. * Ibid., 673, par. 4. Tlius where a court-martial, on being reconvened with a view of giving it an opportunity to modify a sentence manifestly too lenient for the offense found, (iecided to adhere to the sentence as iidjudged, and, on being again reassembled to consider further grounds presented hj' the reviewing comniaiider for tlie infliction of a seven r iiena'ty, again declined to increase the punishment, 7ieW that il whs within the autliority of the reviewing officer, and would be no more than proper niul dignified for him, in taking final action upon the ciise, to reflect upon tlie refusal of the eon it as ill judged and as having the effect to impair the discipline and prejudice the iniere.-ta of the military service. Ibid. In passing upon tlie findings and sentence of a court-innniMl, the reviewing officer will properly attach special weight to its conclusions where the tesiiniony Iims been of a conflicting character. This for the reason that, having the witnesses before i: in person, the court was qualified to judge, from their manner in connect'on with their statements, as to the proper measure of credibility to be attached to them individually.* Ibid., 674, par. 5. * See the early case of Ca.pt. Weisner. Am. Arcliiv.. 5th Series, vol. ii.. p. R9.'). So civil courts will rarely interfere, except in cases of cleat- in]"nstice, with verdicts of juries which have turned upon th< credibility of witnesses. Wright vs. State, 34 Ga., 110; Whitteii vs. State, 47 id., S9". 542 MILITABT LAW. approval cannot tlien be sabstituted for a disapproval or vice versa, nor can an ap proved p unishment be m itigated o r commu ted.' it is an established principle that when the final action of the revievring officer has been published in orders to the command and notified to the accused, his power of approval and disapproval in the case is exhausted, and his action cannot be recalled or modified. Where a department commander applied to the "War Department for the return of the proceedings of a case in order that he might modify his action thereon, it was held that, as the same had been formally promulgated in orders and had duly taken effect, the power of the reviewing officer over the case was exhausted, and the application could not legally be complied with." Power to Review Not Subject to Delegation. — A jmUiaj:ji_£Qffiaiaader canmit_oi_cauj,-afi.. delegate to an inferior., or other offioR|-. Iiis Ijun ctinn as rejiewin g authori ty _of t he proceedings or sentence of a court-martial, as conferred by the 104th or 109th Article of AVar or other statute. Nor can he regularly authorize a staff or other officer to write and subscribe for him the action by way of approval, disapproval, etc., which he has decided to take upon such proceedings. Au approval purporting to be sub- scribed by the commander "by" his staff judge-advocate or assistant adjutant-general would be open to question and quite irregular; as would also be any action subscribed by such an officer purporting to be taken " in the absence and by the direction of " the commander.' Power to Review Not Subject to Revision by Higher Authority. — In act- ing upon the proceedings of a court-martial, the legal reviewing officer acts partly in a judicial and partly in a ministerial capacity. He " decides " and " orders," and the due exercise of his proper functions cannot be revised by superior military authority. It has been held that a reviewing officer who had duly acted upon a sentence and promulgated his action in orders could not be required by a higher commander, or by the Secretary of War, to revoke 'Dig. J. A. Gen., 674, par. 8. But ivhere, after tlie reviewing commander had approved a sentence in general orders and the com t liad been dissolved, it was discovered that there was a fatal defect in tlie proceedings in tliat tbey did not show that the court or judge-advocate had been sworn in tbe case, Iield that the commander would properly issue a supplemental order declaring tbe proceedings a nullity and tbe original order inoperative and withdrawn on account of the defect. Ibid., 676, ]iar. 15. 'Ibid , 67n, par. 13. Wbere Ihe convening commander dissolves a court pending a trial, bis power as to that court is exhausted and be cannot revive it as such. He may reconvene tbe same niemb rs as a court martial, but it will be another and distinct tri- bunal. Ibid., 676, par. 16. A sentence to forfeit certain pay was approved, and such approval promulgated in orders of Feb. 18, 1865. On JIarch 10th following tbe reviewing officer "reconsid- ered " his action, and by another order disapproved the sentence, and this order was also promulgiited. Held that the latter order was of no effect. Tbe first order executed the forfeiture, making tbe amount forfeited public money, and exhausted the power of the reviewing authority. Ibid., par. 14. » Ibid., 674, par. 7. THE ARTICLES OF WAR. 5i3 sach action. If the sentence be deemed unwarranted or excessive, relief may be extended through the power of pardon or remission.' Abticli: 105. No s entence of a court- martial, inflicting the punishment of death, sha ll be carried into execution until~iI'^?tuU~Kdve been confirmed by t he Presi dent ; except ip the cases of persons convicted, in time of war, as ^pies, mutineers, deserters, or murderers, and in the cases of guerrilla maraud- .ers convicted, in time of war, of robbery, burglary, arson, rape, assault with intent to commit rape, or of violation of the laws and customs of war ; und i n such e xcepted c ases the sentence of d eath may be carried into execution ■ upon confirmation, by the c oming nding gen eraT_^^^£ji eld o r the commander of the department, as the case may'W. 'The history of the first clause of this Article has already been explained.' The excepting clause is a modification of the 65th and 89th of the Articles ■of 1806, ia respect to tlieir application to sentences of death and dismissal of officers in ti-me of war. Article 65 of the Code of 1806 conferred authority upon an army or departmeut commander, in time of war, to execute sentences of death or dismissal; Article 89 of the same code conferred authority to "pardon or mitigate" sentences imposed by courts-martial 'Constituted by them, except sentences of death and dismissal, which were authorized to be suspended " until the pleasure of the President " could be known; and such " suspension, together with copies of the proceedings of the court-martial," were to be immediately transmitted to the President for his determination. The authority thus conferred was restricted in 1863 by the requirement that " no sentence of death or imprisonment in the penitentiary shall be carried into effect until it shall have been approved by the President." ' By the Act of March 3, 1863, however, so much of the enactment of 1862 as required "the approval of the President to carry into execution the sen- tence of a court-martial " was repealed in so far as it related to "carrying into execution the sentence of any court-martial against any person convicted as a spy or deserter, or of mutiny or murder." Sentences for these offenses could be carried into effect by the commanding generals of armies in the field.'' The power thus conferred upon commanding generals of armies in the field was, by the Act of July 3, 1864, conferred upon department com- manders, and was extended to sentences imposed by military commissions, as well as by courts-martial, for robbery, arson, burglary, rape, assault with intent to commit rape, and for violations of the laws and customs of war, as well as sentences against spies, mutineers, deserters, and murderers, together with all sentences against guerrilla marauders." 'Dig. J. A. Gen., 676, par. 17. ' See Ai-ticle 104, supra. 'Sec. 5, Act of July 17, 1862 (13 Stat, at Large, 598). ■•Sec. 31, Act of March 3, 1863 (12 ibid., 735). ' Act of July 3, 186i (13 ibid., 356). 5i4: MILITARY LAW. ' It has tlins been seen that the Articles of 1806 and subsequent enact- ments of similar character conferred authority upon the commanding general of a department, or army in the field, in time of war, to execute a sentence of death or dismissal, but 7iot to exercise the power of pardon or mitigation. This principle was recognized in the enactment of 1864 by a clause confer- ring upon the officers above named the power to " remit or mitigate " sen- tences of death or dismissal " during the continuance of the present rebellion." At the close of hostilities, therefore, such power ceased to exist. The present Article confers express authority upon the " commanding general in the field or the commander of the department, as the case may "be," to confirm capital sentences and to carry them into execution in the cases of persons convicted, in time of war, as spies, mutineers, deserters, or murderers, and in the cases of guerrilla marauders convicted, in time of war, of robbery, burglary, arson, rape, assault with intent to commit rape, or of violation of the laws and customs of war. But the corresponding authority to remit or mitigate is not expressly conferred by the terms of the lOoth Article. It would thus seem to have been the intention of Congress, in this enactment, to confer upon commanding generals, in time of war, a power to approve and execute such sentences adequate to the strict necessities of discipline and no more. It is clearly essential to discipline and to the maintenance of order in the theatre of active military operations that com- manders in the field should have power to carry such sentences into effect. If, however, an occasion arises for clemency, or for an exercise of the pardon- ing power, it was evidently deemed best by Congress — no urgent question of discipline being involved — to leave the matter in the hands of the Executive, in whom the power to grant pardons is vested by the Consti- tution; and such power of pardon or mitigation was therefore expressly reserved to the President in the enactment of 1862 above cited, which is now embodied in the first clause of the 112th Article of War.' Article 106. In time of peace no sentence of a court-martial directing the dismissal of an officer sImII be carried into execution until it shall have been confirmed by the President.^ Article 8, Section 11, of the American Articles of 1776 contained the requirement, derived from the corresponding provision of the British Code of 1774/ that "no sentence of a general court-martial shall be put in execu- tion till after a report shall be made of the whole proceedings to Congress, or to the general or commander-in-chief of the forces of the United States, and their or his directions be signified thereupon." Article 2, Section 14, of the Resolution of Congress of May 31, 1786, contained the provision that '- Sec. 7, Act of July 17, 1863 (13 Stat, at Large, 598). ' See Articles 104, 105, and 106, and the chapter entitled Thb Ebviewing Author- ity. 'Article 10, Section 15. TEE AllTIOLES OP WAR. 545 " no sentence of a general court-martial, in time of peace, extending to the loss of life, the dismission of a commissioned officer, or ^hich §hall, either in time of peace or war, respect a general officer, be carried into execution until after the whole proceedings shall have been transmitted to the Secre- tary at War, to be laid before Congress for their confirmation or disapproval and their orders in tlie case." This requirement was embodied in the Articles of 1806,' substituting the President of the United States for the Congress as the final reviewing authority. The word " approved " employed by the President in passing upon a sentence of dismissal has been held to be substantially equivalent to"" con- firmed," the word used in the Article. In practice the two words are used indiffer ently in this connection.' The Article does not expressly require that the confirmation of the sen- tence shall be signed by the President, nor does it prescribe any form in which the confirmation shall be declared. A written approval, therefore, of a sentence of dismissal authenticated by the signature of the Secretary of "War or expressed to be by his order is a sufficient confirmation within the Article ; the case being deemed to be governed by the well-established prin- ciple that where, to give effect to an executive proceeding, the personal signature of the President is not made essential by law, that of the head of the department to which the subject belongs shall be sufficient for the pur- pose ; the assent of the President to his order or direction being presumed, and his act being deemed in law the act of the President whom he repre- sents." Abticle 107. No sentejice of a court-martial appointed ly the commander of a division or of a separate Irigade of troops, directing fhe dismissal of an officer, shall be carried into execution until it shall have been confirmed by the general c ommandin^ the army in the field to tuhich the division or brigade belongs. * ' As Article 65. 2 Dig. J. A. Gen., 128, par. 1. ' Ibid , par. 3. This view has been sustained by an opinion of the Attorney-General of June 6, 1877, (15 Opina.. 390.) and by a Report of the Judiciary Committee of the Sena e of March 3. 1879,— Rep. No. 868, 45th Cong., 3d Ses. (From this report, indeed, two members of the Comniitlee di,ssented in a subsequent report of April 7, 1879, — Mis. Doc. No. 31, 46t,h Cong., 1st Ses.) This subj.ct has been more recently considered by ihe U. S. Supreme Court in a sue- cefsiou of cases (Runkle «s. U. S , 128" U. S., 543; U. S. m. Page, 137 U. S., 673; U. S. TO. Ple'cber, 148 U. S,, 84), tlie eifect of which is that a statement of approval of a sen- tence of dismissal authenticated by the Secretary of War is legally sufficient provided that it appear, by clear presumption therefrom, that the proceedings have actually been submitted to the President In an opinion of the Attorney General of April 1, 1879, (16 Opin.o., 398,) it washeld that a conflrraation of a sentence of dismissal of an officer, though irregularly and unduly authenticated, vpould be ratified by an appointment by the President of another officer to fill the supposed vacancy, and that the appointment thus made would be valid and operative. * See Articles 104, 105, and 106, supra. 54:6 MILITARY LAW. Aeticle 108. No sentence of a court-martial, either in time of peace or in time of imr, respecting a general officer sImII be carried into execution until it shall have been confirmed by the President.^ Abticle 109. All sentences of a court-martial may be confirmed and car- ried into execution by the officer ordering the court, or by the officer command- ing for the time being, where confirmation by the President, or by the com- manding general in the field, or commander of the department, is not required by these articles.' Abticle 110. iVb sentence adjudged by a field-officer detailed to try soldiers of his regiment shall be carried into execution until the same shall have been approved by the brigade commander, or, in case there be no brigade commander, by the commanding officer of the post or camp.' This appeared for the first time ia statutory form as Section 7 of the Act of Jaly 17, 1802;' its purpose being to provide for the review and approval or confirmation and execution of sentences imposed by the newly constituted field-ofiicer's court. The words " or camp " were added after " post," in the last line of the Article, by the Act of July 27, 1833.* Abticle 111. Any officer tvho has authority to carry into execution the sentence of death or of dismissal of an officer 7nay suspend the same until the pleasure of the President shall be known; and in such case he shall immediately transmit to the President a copy of the order of suspension, together with a copy of the proceedings of the court. ^ An officer suspending the execution of a sentence for the action of the President under this Article should first formally approve the same. Simply to forward the proceedings stating that the sentence has been suspended is incomplete and irregular. If the commander disapproves the sentence, he cannot of course suspend and transmit under this Article, since there remains nothing for the President to act upon.' Where a case is submitted to the President for his action under this Article, he may approve or disapprove the sentence wholly or in part, and, if approving, may exercise the power of remission or mitigation.' Abticle 112. Every officer who is authorized to order a general court- martial shall have power to pardon or mitigate any punishment adjudged by it, except the punishment of death or of dismissal of an officer. Every officer commanding a regiment or garrison in which a regimental or garrison court- martial may be held, shall have poiuer to pardon or mitigate any punishment which such court may adjudge. ' See Articles 104, 105, and 106. supra. ' See Artifles 104, 105, and 106 for a history of this provision. See, also, the chapter enlilled The Retiewin-g AuTHOiirTV. 5 Sec. 7, Act of Jiilv 17. 1862 (12 Sfat. at Large, 598). * Act of July 27, 1898 (27 Slat, at Large. 278). = For a history of this Article see the 104th and 106th Articles of War. «Dig. J. A. Gen., 129, par. 1. ''Ibid., par. 2. THE ARTICLES OF WAR. 547 The pardoning power in respect to criminal offenses, military as well as civil, and the authority to remit, mitigate, and commute punishments imposed by military tribunals, which are but incidents of the general power to pardon, are by the English Constitution vested in the sovereign. The early Articles of War requiring the sentences of general courts-martial to be submitted to the sovereign prior to execution ' were adopted with a view to enable this power to be exercised in cases in which, in the opinion of the sovereign or his constitutional advisers, an act of clemency or mercy was deemed appropriate." This power has been and may still be exercised directly by the crown, or may be conferred upon generals commanding-in- chief by letters under the royal sign manual. Prior to the adoption of the Federal Constitution, the power to confirm the more important sentences — death and the dismissal of commissioned officers, for example — was vested in the Congress," and was from time to time exercised by that body. There being no executive head to the Govern- ment under the Articles of Confederation, the power to pardon was vested in the general or commander-in-chief for the time being, who was authorized to pardon or mitigate "any of the punishments order to be inflicted for any of the offenses mentioned in the foregoing Articles." * The corresponding power of pardon and mitigation in respect to regimental courts-martial was by the same Article conferred upon the regimental commander.'' By a resolution of Congress of April 14, 1777, the Articles above cited were repealed and replaced by two new Articles, one of which required sen- tences of general courts-martial to be reported to Congress," as before; the other, however, conferred authority upon Continental general officers to appoint general courts-martial and to "pardon or mitigate all punishments authorized except the sentence of death,'" which they were authorized to suspend and report the proceedings in the case to the Congress for its action. ° By a Resolution of May 27, 1777, the power of pardon and mitiga- tion which had been vested in the "general or commander-in-chief " by the ' See Article 10, Section 15, of the Britisli Codes of 1765 and 1774. ' Clode, Mil. L'lw, 145. The power of commutation, inasmuch as it substituted another and different judgment for that pronounced by ihe courts, was held in 1727 to be beyond the authority of the sovereign, as an unwarranted exercise of the pardoning power. Authority to con)mute was therefore conferred upon the crown by the Mutiny Act. 1 Oloile, Mil. Forces. 509, 510. ' By Article 8, Section 14, of the American Articles of 1776. ♦ See Article 2, Section 18, ibid. 5 Ibid ' Article 3, Resolution of Congress of April 14, 1877. ■■ Article 4, ibid. 8 That ti'e authority to commute was not conferred by this enactment or by that of May 27, 1777, is evidenced by the following extract from a letter from Washington to Gates under date of February 14, 1778. "The right of mitigating only extends, in my opinion, to lowering tlie degree of punishment, in the same species prescribed, and does not imply any authoiily to change the nature or quality of it altogether." VI. Writings of Washington, 374. 548 MILITARY LAW. Articles of 1776, but which had been withdrawn Ly the Eesolution of April 14th above cited, was restored; and the power "to execute sentences and to grant pardons therefor, by way of mitigation or remission," was conferred upon " general ofl&cers commanding departments " " without being obliged to report the matter to Congress or the commander-in-chief." The sub- ject of approval and confirmation, as well as of pardon and mitigation, in respect to general courts-martial having been thus made the subject of exhaustive legislative regulation, was not mentioned in the Resolutions of Congress of 1786. In the Articles of 1806 the power of confirmation is regulated by the 6oth Article; while the power of pardon and mitigation in respect to both general and inferior courts-martial is regulated by the pro- visions of the 89th Article.' Nature of the Power ; Effects of its Exercise. — The President is em- powered by the Constitution " " to grant pardons for ofEenses against the United States "; and a pardon, like a deed, must, in order to take effect, be delivered to and accepted by the party to whom it is granted." It is the effect of the exercise of the pardoning power by the President to relieve the party from all punishment remaining to be suffered. Where, therefore, he remits the unexecuted portion of a term of imprisonment, an additional penalty, which, by the express terms of the sentence, was to be incurred at the end of the adjudged term, (as a dishonorable discharge from the service), cannot be enforced. The pardon having intervened, the sen- tence ceases to have any effect whatever in law, and the soldier — the remainder of his service being regular — must be honorably discharged.' ' Article 60 of the Prince Rupert Code provided that "when senteDCe is to be given the President shall pronounce it; and, after that the sentence is pronounced, the Provost- Martial shall have warrant to cause execution to be done according to the sentence." Article 59 of the same code contained provision for a regimental provost-marshal who was to "have the same priviledge in his own regiment as the Provost-Martial General hath in the Army or Camp." The King James Articles of 1686 contained similar pro- visions. Article 13, Section 15, of the British Codes of 1765 and 1774 contains the requirement that no sentence of a regimental or garrison court-mariial shall "be executed until the Commanding officer (not being a member of the Court-Martial), or the Governor of the Garrison shall have confirmed the same." This was adopted with- out change as Article 10, Section 14, of the American Articles of 1776, and as Article 3, Section 14, of the Resolution of Congress of May 31, 1786. In the Articles of 1806 the power to approve and confirm is conveyed by Article 65, the power to pardon and mitigate being conferred by Article 89. = Article 2, Secticm 2, par. 1. ' Dig. J. A. Gen., 551, par. 1. Thus there can be no pardon of a deceased officer or soldier; and that the pardon is asked by the party's widow or heir, who is to be pecun- iarily lienefited thereby, cannot affect the principle. So where, in a case of an officer who had died while under a sentence of suspension from rank, a pardon was asked for the purpose of having the stigma removed fiom his record in the service, 7ield that the case was not one in which the pardoning power could be exercised. Ibid. See, also, U. S. vs. Wilson, 7 Pet., 150; In matter of DePuy, 3 Benedict, 307; 6 Opin. Att.-Gen 403. * Ibid., 553, par. 5. It is the effect of a full pardon (otherwise of a mere remission of the punishment) to remove all penal consequence (except of course executed penalties) and all disabilities attached by U. S. statute (or army regulation) to the offense or TEE ARTICLES OF WAB. 549 A pardon is not retroactive. It cannot remit an execated punishment, or restore an executed forfeiture resulting either by operation of law or sen- tence. It cannot, therefore, restore the forfeitures incident upon desertion. Further, it cannot modify past history or reverse or alter the facts of a com- pleted record. Prom and after the taking effect of a pardon the recipient is innocent in law as to any subsequent contingencies, but the pardon does not anuihilate the fact that he was guilty of the offense. The pardon indeed proceeds upon the theory that the party was guilty in fact. The asking for it is an admission of guilt, and the granting of it is a recognition of the fact of guilt.' to the conviction or sentence.* Thus the pardon of a convicted deserter will relieve Lim from the loss of the rights of citizenship attached by the Act of March 3, 1865, Sees 1996, 1998, Rev. Sis., to a conviction ol desertion. f But a pardon by the President will be ineffectual of course to remove a disqualification incurred by the offender under a State statute J Dig. J. A. Gen., 551, par. 3. Held that a pardon extended to an enetuy for his offense or offenses as such, com- mitted during tlie war. did not entitle him to be paid rent for the occupation of his real estate by the U. S. military autlior.ties while occupying by the right of conquest the region of country in which such estate was situated. Ibid., par. 3 ' Dig. J. A Gen., 5.J6, par. 15. Thus held that the President could not by a pardon remove the cliarge of desertion from the record of a former soldier, who had long since become a civilian by reason of the muster-out and non-existence of the volunteer army to which he had belonged in the late war; and that the effect of his pardon would not be to give him an honorable discbarge. A pardon would not only not remove a charge of desertion, but would in fact confirm it, and constitute an additional reason for retaining it on the lecord. And a party cannot by an executive act be discharged from the service unless he is m the service. Ibid. A pardon by the President will reach and remove a continuing disqualification or disability incident upon the commission of an offense against the United States, or upon a conviction by a United States court or a, court-martial, but not a disquiilification incurred (as upon conviction of grand lai'ceny) under the laws of a State. Ibid,, 555, par. 17. A pardon cannot reach or remit !i fully executed sentence, though the same may have been unjustly imposed. A pardon cannot of course undo a corporal punishment fully inflicted: g nor can it avail to restore to the army nn officer or soldier legally separated therefrom and made a civilian by a duly approved sentence of dismissal, 1 or hjf a dis- honorable discliargc. ISTor can it restore a fine pnid, or pay forfeited, when the amount of the same has one cone beyond the rontrol of the Executive and been covered into the U. S treasury and become public funds, If whatever may have been the merits of the case. Otherwise, liowever, where the monev still remains in the hands of a military disbursing officer or other intermediate official ** Where, however, any portion of a punishment remains vnexeeuted, that portion may be remitted by the pardoning power, ft Congress alone can restore pay fullv forfeited to the United States, or otherwise pecu- niarily indemnif V an officer or soldier for the consequences of a legally executed sen- tence. Ibid , 553, par. 4. * KrprtWe Garland. 4 Wall.. 310: 18 Onin. At, -Opn..8t. _„, ,„„ _,,..,. t S Onins. At.-Gen.. aR4; s id 47fl: 14 id.. 121. And sep People vs. Bowen, 43 Cat., 439. That tins disability can attncti only unoii a conviction, see the 47th Article, title Statutory Consequences of Desn-tinn, iinrt authoritips cited in note. t 7 Onins. At.-GtPn.. 760 § Spe fi Opins. At.-Gpn. 284 II 12 Opins., .^4«: Ex pnHe Garland, 4 Wallace. 381. ., „.„„ t 2 Opins. At.-Gen.. 3.30; IB Id 1 This heeanse the same Oonstitntion which conveys the paraon- ing power contains a provision of "equal effleiencv " (Article 1, Sec. 9. § 6) to the pfEect that nioney in the public trpasury shall not be withdrawn pxcpot by an appropriation bv Act of Congress. 8 id., -ai. Comparp, in this connection, Knote vs. United States, 6 Otto, 149, where it was held that an executive pardon would not entitle a party to the proceeds of certain personal effects conflscated and sold Dy the United States as the property of an enetny after such proceeds had been duly paid into cne treasury. ** 14 Opins. At.-Gen.. BOl. tt And the ExpcuMvp, in the exercise of thp pardoning power, " may pardon or remit a portion of the sentence at one time and a different portion at another." 3 Opins. At.-Gen., 418. 550 MILITARY LAW. Continuing Punishments. — The pardoning power extends to continuing pumshments, or punishments which are never fully executed, — remitting in each case the punishment from and after the taking effect of the pardon. Of this class is the punishment of disqualification to hold military or public office, as also that of the losing of or reduction in " files " (or relative rank) in the list of officers of the offender's grade ; these, being continuing punish- ments, may be put an end to at any time by a remission by the pardoning power. ' Conditional Pardons. — It is settled that a pardon may be conditional — may be granted upon a condition precedent or subsequent." Thus where the President, by his proclamation of March 11, 1865, granted a pardon to all deserters "on condition that they duly returned (within a certain time stated) to their regiments, etc., and served the remainder of their original terms and, in addition, a period equal to the time lost by desertion," a soldier who duly returned under this proclamation but, after remaining with his regiment a portion of the period indicated, abandoned the service and went to his home, was held liable (the legal period of limitation fixed by the 103d Article of War not having expired) to be brought to trial for his original desertion; the condition suisequent upon which his pardon for the same had been extended not having been performed.' Constructive Pardons. — While to restore to or place upon duty an officer or soldier when under arrest or charges on account of an alleged offense would not probably in this country, to the same extent as in England,' be regarded as operating as a condonation of the offense, the promotion of an officer while in arrest under charges has been viewed as a constructive pardon of the offense or offenses on account of which he has been arrested.' Such a promotion, however, could not operate as a pardon of other offenses committed by him, of the commission of which no knowledge was had by the Executive at the date of the promotion.' While ordering or authorizing an officer or soldier when under sentence to exercise a command, or perform any other duty inconsistent with the con- tinued execution of his sentence, has been viewed as a constructive pardon,' ' Dig. J. A. Gen., 553. par. 6; 12 Opin. Att.-Gen., 547. = Ex parte Wells, 18 How., 307 ; Com. vs. Haggerty, 4 Brewster, 326 ; 6 Opin. Att.- Gen., 405. ' Dig. J. A. Gen., 554, par. 9. In certain cases of military offenders convicted of lar- ceny of public property or conversion of public funds (or who had escaped from mili- tary custody while under charges for such oflEenses), and applying for pardon, advised that, even if otherwise thought worthy of pardon, no pardon should be extended to them except upon the condition precedent of their making good the funds appropriated or the property stolen or its value. Ibid., par. 10. * See Clode, Mil. Forces of the Crown, vol. 1, p. 173; Prendergast, 244-5, in connec- tion with the cases cited of Sir Walter Raleigh, Lord Lucan, Capt. Achison, etc. « See 8 Opins. Att.-Gen., 237. « Dig. J. A. Gen., 553, par. 7. ' 6 Opin. Att.-Gen., 714. THE ARTICLES OF WAR. 551 it has been held that, to allow an officer while under a sentence of suspension from rank to perform certain slight duties in closing his accounts with the United States could not be regarded as having any such effect.' Procedure. — The pardoning power here given is not limited in its exer- cise to the moment of the approving of the sentence, but may be employed as long as there remains any material for its exercise. Under this Article, as interpreted by the usage of the service, a department (of arniy) com- \ maffder may"ia"hisjIiscretion, remit atl any -iime,^n,d lor any cause deemed j by fiTin to be sufificient, the unexecuted portion of the sentence of any I soldier'BMfined~Tn''Eis'command under a sentence imposed by a court-mar- / tial conveneiS by him or by a predecessor in the command.' A military commander vested with the power of pardon or mitigation under this Article is not authorized to delegate the same to an inferior. Thus a department commander cannot legally authorize a post commander to remit in part, upon good behavior, the punishment of a soldier, under sentence at the post commanded by the latter, who has been con victed by a general court the proceedings of which have been acted upon by the former.' Remission. — Remission is apa£tjalexerase.^, Uie._ pardoning j^o^ relieving the person Jrojn^a.punishnxent, or,,.th^,,unexe of a pMilsEmentT^FMtpardoning the offense as such, or removing the disaBui- ties or penal consequences attaching thereto or to the conviction.' The pardoning of " punishment," authority for which is vested in certain com- manders by the 113th Article of "War, is remission. An offender can be completely rehabilitated only by a full pardon granted under the pardoning power of the Constitution.' Mitigation. — The reviewmgauthority in approving the punishment adjudged by the court and ordering its enforcement, is authorized, if he deems it too severe, to graduate it to the proper measure by reducing it in ' Dig. J. A. Gen., 553, pav. 8. Held that a -withdrawal by a department commander of ii pending charge against a soldier, upon liis giving a pledge to abstain in the future from the conduct which was the subject of the charge, did not operate as a pardon and could not be pkaded as such. Had it been done by an order of the President, it could have had no further operation tlian as a gKasiconditioiial pardon, leaving the charge legally renewable upon a repetilion of the offense. Ibid., 557, par. 18.' Held that an order issued by competent authority at about the close of the war (Decem- ber, 1865), by which a military prisoner convicted of larceny by courl-marlial was simply released before the end of his term, from a Stale penitentiaiy, was an act of constructive pardon, operating to remit the unexecuted portion of the sentence : and tliat a formal pardon by the President was not essential to enable the party to exercise the right of suffrage in a State where a conviction of larceny, unpardoned, was a disqualification. Ibid., par. 19. = Dig. J. A. Gen., 130, par. 4. ' Ibid. , par. 8. * Compare Perkins «s. Stevens, 34 Pick., 277; Lee m. Murphy, 23 Grat., 799; 1 Bish. Cr. L., § 763; 2 Opins. Att.-Gen., 329; 5 id.. 588; 8 id., 383-4. s Ibid., 657, par. 1; Ex parte Garland, 4 Wall., 880. ■i ^ 552 MILITARY LAW. quantity or quality, without^changing its species; this is mitigation.^ Imprt30Bmentf~fifie7 forfeiture of pay, and suspension are puiiisBiiients capable of mitigation. As an instance of a mitigation both in quantity and quality, a sentence of imprisonment for three years in a penitentiary was held to be mitigable to an imprisonment for two years in a military prison." - — ^ A punis hment in itself i llggal is not capable of mitigation. Thus where a sentence of imprisonment in a penitentiafyTs not legally authorized, it cannot be made valid by mitigating this imprisonment to confinement in a military prison. In such case the latter will be equally invalid and inopera- tive with the original punishment.' A panishment cannot be pardoned or mitigated under this Article where it has been once duly executed. Where, however, a sentence has been executed only in part, it may be remitted as to the portion remaining anexecuted.* Where a sentence consists of several punishments, the reviewing oflficer cannot so exercise the power of mitigation as to exceed in any instance the maximum punishment established by law and orders. Thus he would not be authorized by way of mitigation to reduce a confinement, while at the same time adding to a forfeiture so as to make it in excess of the maximum forfeiture legally allowable for the offense.' Commutation — Where, as in the case of a sentence of death, dismissal, or dishonorable discharge, there is no lesser form or degree of the same punishment to which a sentence can be reduced by way of mitigation, mercy or clemency can only be shown by way of commutation, th&t iSj hj ajubsti- jtution of soeie^fliher_panish.ment for that named in the sentence. The '' f power to commute (or remit) sentences of death or dismissal is, by this I Article,~reserved to the President, and a military commander cannot e xercise such power eveh'where, in time of war, he is authorized Jo approve such a I sentence and carry it into eflEect." T?he substitution of the punishment of confinement for that of dishonor- able discharge, imposed by sentence of court-martial, would not of course be authorized by way of mitigation (which cannot change the nature of the punishment) , but may be effected by a commutation of the sentence by the President accepted by the soldier.' I See opinion of Judge-Advocate General published ih G. 0. 71, War Department, 1875; 1 Opins. Att.-Gen., 327; 4 id., 444. It may be noted that these early opinions of the Attorney-General inaccurately describe the substitution of a lesser punishment for a deat?i- sentence, as a mitigation ; the proceeding being properly commutation. " Di?. J. A. Gen , 131, par. 5. ' Ibid , 132, par. 11. * Ibid.. 130, par. 3. 5 Ibid., 133, p^r. 19 See, also, ibid., par. aO. « Dig. J. A. Gen., 129, par. 1. See. also, Washington to Gates, Feb. 14, 1778, Vol. VI. ; Writings of Washington, 374. ' Ibid., 131, par. 8. See, also, par. 7, ibid. So held that a reviewing commander wa3 not authorized to commute the punishment of dishonorable discharge, and that, as THE ARTICLES OF WAR. 553 Aeticle 113. Every judge-a^Qcate, or person acting as such, at any ■qeMroL^ ourt -martia l, s hall, wi th as much expedition as the opportunity of time and distance of place may admit, forward the original proceedings and >^ t, sentence of such court to the J udge- Advocate G eiieral of the Army, in ivhose ~S office they shall be carefuUy preserved. This reqairement originated in a provision of the Mutiny Act of 1750,' which required that "every acting judge-advooate should send up the pro- ceedings, with as much expedition as possible, to the Judge-Advocate ■General in London, to be kept and preserved in his office, to the end that persons entitled thereto might obtain copies thereof, as provided for in the Act." ' As this requirement formed a part of the Mutiny Act, and so did not appear in the Articles of 1774, it was not embodied in the American Articles of 1776, bnt appeared for the first time in statutory form, as the last clause of Article 24 of Section 14 as amended by the Resolution of Con- gress of May 31, 1786. In this form it was re-enacted as the first clause of No. 90 of the Articles of 1806. The Judge-Advocate General of the Army is, by another statute,' made the legal custodian of the records of general courts-martial; the Congress, in this respect, having adhered to a practice Tvell established in the British service at the time of the adoption of the Pederal Constitution." . Aeticle 114. Every party tried by a general court-martial shall, upon ^. demand thereof, made by himself, or by any person in his behalf, be entitled to a copy of the proceedings and sentence of such court. The right of an accused person to have a copy of the proceedings in his case was first recognized by statute in England in 1748, in which year a clause was added to the Mutiny Act requiring such a copy to be furnished " to any person tried by the same, at any time not sooner than three nor later than twelve months after the sentence given, and whether such sen- tence be approved or not." ' For a reason above stated,' this requirement was not embodied in the American Articles of 1776, and appeared first in statutory form as the third clause of Article 34, Section 14, as amended by the Resolution of May 31, 1786. It was re-enacted without change as the last clause of No. 90 of the Articles of 1806. Procedure under the Article. — Applications for copies under this Article may be and in practice_commonly arg^ addressed in_ th e first inst ance to the Judge- Advocate Gene ral, who thereupon furnishes the copy, certified^by him such punisliment was not susceptible of mitigation, it could not legally be reduced under tliis Article. Dig. J. A. Gen , 131, par. 7. Dishonorable discharge cannot legally be mitigated to " discharge without a charac- ter." The latter is not a recognized punishment. Ibid., 132, par. 14. ' 24 Geo. II.. ch. 6, sec. 8. ' Section 1 199, Revised Statutes. » Clode. Mil. Law, 152; In re Mansergh, 1 B. & S., 406. ••32 Geo. II., ch. 5, sec. 9. * See Article 113, supra. 554 MILITARY LAW. aa Correct, at the expense of the United States, provided the application is Hiade~ByTBe^ccused or in hisbehalf.- If not, he can furnish the copy only by the'^special authority of the Secretary of War. Any person desiring a, cegyoftherecord of a court-martial, or of any portion of a record^ w ho is not entitled to be furnished with the same by the ternis_Qf .this Article, should apply Jiherefor^toT the Secretary of War, stating the reason for his application, in order that it may appear that he makes the same in good faith and for a proper porpose. If the application is approved by the Secre- taryTit will be referred to the Judge- Advocate General, who will then have the copy prepared and transmitted.' A person applying for the copy " in behalf " of the accused should exhibit some satisfactory evidence that he duly represents the accused, as his agent, attorney, or otherwise. Where it does not satisfactorily appear that the party is applying for and on behalf of the accused, he cannot be furnished with the copy, as of right, under the Article. A pel'son other than the accused, applying on his own account, is not entitled to the copy." A copy of the ^proceedings and sentence cannot_ properly be furnished ) under this Article until the same have been finally acted upon and such "" / i action has been promulgated in the usual manner.' The accused or other person entitled under this Article to be furnished with a copy of a record of trial is not entitled to be famished with a copy of a report of the Judge-Advocate General made upon the case. To receive this, special authority must be obtained from the Secretary of War.' The copy of the " proceedings and sentence " of the court, with which the accused is entitled to be furnished under this Article, does not include the action of the reviewing authority as indorsed upon or attached to the record of trial, and it is not the usage to include this in the copy.' The furnishing of a copy of a record of a general court-martial to a ' Dig. J. A. Gen., 134, par. 3. It is an established general rule that a head of a departuientof the Government will not make public orfurnisli copies of confidential oflS. cial reports or papers the disclosure of which will rather prejudice than promote the public interests. lu a case of an officer of i he Army who having been dismissed the service by sentence of court-martial, applied to be furnished with copies of, or to be allowed to e.\amine, the report of the Jud.a;e-Advocate General and the remarks of the -J. General commanding the Army, in his case admsed that tlie application be not acceded ' .' to by the Secretary of War, the same being no part of the record of trial of the officer, ' but confidential communications addressed to the President through the Secretary of ' War. Ibid., 691. par. 5 ^ Dig. J. A. Gen., 134, par. 3. The fact that the applicant is a member of the family of the accused does not entitle him to the copy in the absence of evidence that he aiiplies at the instance or in behalf of the accused. A party applying in behalf of " friends and creditors" of the accused held not entitled to a copy of the record of his trial. So heli of one who subscribed his application merely as "attorney at law," without showing' that he was authorized to act for the accused. Ibid. , ' This Article does not authorize tlie furnishing of a copy of the record of trial to the ^ ( widow of the accused or other person applying after his decease. Ibid., 185, par. 7. _,^ / V »iiid., 133, par. 1. * Ibid., 184, par. 4; see, also, note 1, supra. "Ibid., 135, par. 8. THE ARTICLES OF WAR. 555 person other thaa the accused and not applying in his behalf will, as a general rule, be authorized by the Secretary of War where the application is evidently made in the interest of justice and the copy furnished will clearly subserve a good and desirable purpose. But this must be made cer- tainly to appear.' It is only a party " tried by a general court-martial " who is entitled by , the Article to the copy. Parties desiring copies of records of courts of /^ inquiry, for use in evidence under Article 131, or for any other purpose, / must apply to the Secretary of War, as above indicated. Such copies, how- ever, are rarely accorded, except for use under Article 131." Abticie 115. A court of inquiry to examine into the nature of any transaction of, or accusation or imputation against, any officer or soldier ma y be ordered 5^ the President or by any conwiaudinQ officer ij)ut, as courts of inquiry may be perverted to dishonorable purposes, and may be employed, in the hands of tueak and envious commandants, as engines for the destruc- tion of military merit, they shall never be ordered by any commanding officer except upon a demand by the officer or soldier whose conduct Ts to be inquir^dj^- In the early history of courts-martial, not only during the period prior to their statutory recognition by the passage of the Mutiny Act, but for more than a century subsequent to that enactment, the functions of the court-martial and court of inquiry differed so little that they were often combined in the same tribunal for the purpose of prosecuting an investiga- tion which would now be committed to a court of inquiry." Although recognized at an earlier date by custom of service, the first authentic in- stance of the appointment of a court of inquiry in the English service seems to have been that appointed by the king in 1746 to investigate the disaster to Sir John Cope's command at the battle of Prestonpans during the Rebellion of 1745.* Clode, in his Military Law, cites an instance in 1708 in which a court-martial was convened for the purpose of investigating the conduct of an officer of Lord Mark Kerr's Regiment.' The order authorizing the appointment of the court in this case was signed by Secretary Walpole, and the report of its proceedings was to be submitted to the Duke of Marlborough as Commander-in-Chief. It is believei that courts-martial retained this jurisdiction, and were empowered to conduct investigations, to detect guilty parties, and to recommend punishments, for a long time after these tribunals had received statutory recognition and had begun to exercise specific juris- diction as such. This is evidenced by Article 3, Section 16, of the American Articles of 1776, which authorizes courts-martial to be convened in the 'Dig. J. A. Gen., 135, par. 5; see, also, note 1, page 55i^ante. ' l}>id., piir. 6. » Clode, Mil. Law, 171. See, also, the chapter entitled Courts or Inquiry. 'Ibid.. 172. ^Ibid., 171, ^^6 MILITABT LAW. artillery to take jurisdiction over "differences arising amongst themselves, or in matters relating solely to their own corps." Early in the present century a doubt having arisen in England as to the authority to convene courts-martial for the sole purpose of conducting investigations, the question was referred to the Attorney-General in 1803, and his opinion, based largely upon the requirements of the oath prescribed for members of courts-martial in the Mutiny Act, was adverse to their legality.' The first statutory recognition of these tribunals in the United States service was that contained in Articles 25, 26, and 27 of Section 14 of the Articles' of War as amended by the Eesolution of Congress of May 31, 1786. These provisions were embodied in the revision of 1806 as Articles 91, 93, find 93. Under the authoi-ity thus conferred, however, courts of inquiry could only be convened upon the application of the officer or soldier whose conduct was to be investigated by them; with a view to confer upon the President power to convene such courts at his discretion, an authority which in England had already been recognized as belonging to the crown," a clause to that efEect was embodied in the 92d of the Articles of 1806. Article 115 authorizes the institution of a court of inquiry only in a case of an " officer or soldier," and the word " officer " as employed in the Articles is defined in Section 1342, Eevised Statutes, to mean a commissioned officer. A court of inquiry cannot, therefore, be convened on the applica- tion, or in the case, of a person who is not an officer (or soldier) of the Army at the time. Such a court cannot be ordered to investigate transactions of, or charges against, a party who, by dismissal, discharge, resignation, etc., has become separated from the military service, although such transactions or charges relate altogether to his acts or conduct while in th,euarmy. A court of inquiry cannot be ordered in a case of an " acting assistant sur- geon," who is not an officer of the Army, but only a civil employee.' ' I. Clode, Mil. Forces, 541. 'Prior to the emictraent of the Army Act of 1881, courts of inquiry as such were neither authorized nor provided for in the annual Mutiny Acts. They had long been recognized by custom of service, and had been convened from time to time by letters under the royal sign manual with a view to the prosecution of investigations such as are now inquired into l)y ihese tribunals. Courts of inquiry were first expressly authorized in tlie English Articles of 1829. 2 Dig. J. A. Gen.. 135, par. 1. A court of inquiry is not a court in the legal sense of the term. .b\it rather a council, commission, or board of investigation. It does not administer justice; no plea or specific issue is presented to it for trial; its proceedings are not a. trial of guilt or innocence; it does not come to a verdict or pass a sentence. For purposes of invcstiffatiou, however, a court of inquiry in this country is clothed with ample powers, and in an important case its opinion may be scarcely less significant or even final than that of a court-martial. Winthrop, Mil. Law, ch. 84. Though a court of inquiry has sometimes been compared to a grand jury, there is little substantial resemblance between the two bodies. The accused appears and exam- ines witnesses before such a court as freely as before a court-martial, and its proceed- ings are not required to be kept secret, but may be open at the discretion of the court. Dig. J. A. Gen., 136, par. 3. THE ARTICLES OF WAR. 557 A court of inquiry should not in general be ordered by an inferior com7~\ mander — a post or regimental commander, for example — where the charges 1 ^^ required to be investigated are not such as an inferior court-martial could legally take cognizance of. Courts of inquiry convened by such commanders \ are, however, of rare occurrence in our service. ' Although nejther Article 88 nor other provision of the code specifically / . authorizes the challenging_Qf_thejneinbers of aj;our£_of inquiry yet, in the /^!l interests of jusE5LanjLbj_theusage of the service in this country, this pro- / ceeding is permi tted in the same manner as before courts-martial. Article 117 requires fliat members oi cdUftS" of inquiry,_shaill,be_sworn " well and truly to examine and inquire, according to the evidence, without partiality, / - prejudice, " etc.. ; and" it is the sense of the service that their competency / to do so should be determined by the same tests as in the case of a court- martial.'' ^ A court of ^nq uiry has no po wer_t,o _ punish for ^^cajpjfimjt. Such *-• power of this nature as is conferred by Article 86 is restricted in terms to courts-martial. Moreover a court of inquiry, not being in a proper sense a court, cannot exercise the strictly judicial function of punishing contempts.' Aeticle 116. ^ court of inquiry shall consist of one or more officers, not j// exceeding three, and a recorder, to reduce the proceedings and evidence to writing.* Aeticle 117. The recorder of a court of inquiry shall administer to the members the following oatli : "You shall well and truly examine and inquire, according to the evidence, into the matter noio before you, without partiality, favor, affection, prejudice, or hope of reward: so help you God." After which the president of the court shall administer to the recorder the following oath : " You, A B, do stoear 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. " ' Aeticle 118. 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-advocates thereof. Such witnesses shall take the same oath which is talcen by witnesses before courts-martial, and the party accused shall 'Dig. J. A. Gen., 136, par. 2. ' Dig. .T. A. Gen., 136. piir. 4. See Macomb, § 204; O'Brien, 293; De Plait, 278. In the Joint Resolution of Congress of Feb. 13, 1874, aiitborizing llie President to convene a certain special court of inquiry, it was " iirovided that the; accused mny be allowed the same right of challenge as allowed by law in trials by court-martial." It appears, however, to have been regarded in the debate on this Resolution (see Cong Rec , vol. 2, Nos. 38, 40) Ihit this provision was nnnecessary to entitle the partj' to the privilege. 'Dig. J. A. Gen., 137, par. 5. A loose observalion of Hough (Authorities, 10) that "contempts before courts of inquiry are as much punishable as before courts-martial " has been carelessly repeated by several American writers. The recent English writer, Clode, correctly states the law (as to witnesses) in saying (Mil. and Mar. Law, 198) that a court of inquiry " has no power to punish them for contumacy or silence." * See Art. 115, supra. 558 MILITARY LAW. •P ...^ ie 'permitted to examine- and cross-examine them, so as fully to investigate the circumstances in question. The first clause of this Article was made the sabject of Congressional enactment in 1863,' prior to which date the court had power to summon witnesses only. The requirements of the Article in respect to the oaths to be administered to witnesses and the right of parties to cross-examine them were drawn from the 91st and 93d of the Articles of 1806. Article 119. A court of inquiry shall not give an opinion on the merits of the case inqtdred of unless specially ordered to do so. An opinion given by a court of inquiry is not in the nature of a sentence or adjudication pronounced upon a trial. The accused, upon a subsequent trial, by court-martial, of charges investigated by a court of inquiry, cannot plead the proceedings or opinion of the latter as a former trial, acquittal, or conviction.'' While it is of course desirable that the members of a court of inquiry, directed to express an opinion, should concur in their conclusions, they are not required to-do so by law or regulation.' The majority does not govern the minority as in the case of a finding or sentence by court-martial. If a ; member or a minority of members cannot conscientiously . and without a weak yielding of independent convictions agree with the majority, ijt js_better that such member or members should formally disagree and present a sepa- rate, report (or reports) accordingly. The very disagreement indeed of intelligent minds is a material and important fact in the case, and one of which the reviewing authority is entitled to have the advantage in his con- sideration of and action upon the same.' Where, as in the majority of cases, the inquiry is instituted with a view of assisting the determination, by the President or a military commander, of the question whether the party should be brought to trial, the opinion of the court will properly be as to whether further proceedings before a court- martial are called for in the case, with the reasons for the conclusions reached. Where no such view enters into the inquiry, but the court is con- vened to investigate a question of military right, responsibility, conduct, etc. , the opinion will properly confine itself to the special question proposed and its legitimate military relations. A court of inquiry, composed as it is 1 Section 25, Act of March 3. 1863 (12 Stat, at Large, 754). 5^ Dig. J A. Gea., 137, par. 1. 2 In the case of the court of inquiry (composed of seven general officers) on the Cintra Conveiuion, in 1808, the members who dissented from the majority-were required by the convening authority to put on record their opinions, and three dissenting opinions -were accordingly given. A f :irtlier instance, in -which two of the five members of the court gave each a separate dissenting opinion, is cited by Hough, Precedents, 642. Mainly upon the authority of the former case both Hough (Precedents, 642) and Simmons (g 339) liold that members non-concurring with the majority are entitled to have their opinions reported in tlie record. "Dig. J. A. Gen., 137, par. 2. THE ART10LE8 OF WAB. 559 of military men, will rarely find itself called upon to express an opinion upon questions of a purely legal character.' It is not irregular, but authorized, for a court of inquiry, in a proper case, to reflect, in connection with its opinion, upon any improper language \'' or conduct of the accused, prosecuting witness, or other person appearing j before it duriog the investigation." Article 120. The proceedings of a court of inquiry mtist be authenti- « cated by tlie signatures of the. recorder and the president thereof, and deliv- ered to the commanding officer.' Article 121. T]i,e pj-oceedings qfaj:ourt_ of inquiry may le admitted as evidence by a cow^iTMr/ial^ri_CMes mL cajntal nor extm^ to the dis- "- missal of aji^ officer, provided that the circumstances arc such that oral tesfvmony cannot^be. obtained.' While the proceediags of a court of inquiry cannot be admitted as evi- dence on the merits upon a trial before a court-martial of an offense for which the sentence of dismissal will be mandatory upon conviction,* it has been held that upon the trial of such offense, as upon any other, such proceedings, prop- erly authenticated, would be admissible in evidence for the purpose of im- peaching the statements of a witness upon the trial who, it was proposed to show, had made quite different statements upon the hearing before the court of inquiry." Article 122. If, upon marches, guards, or in quarters, different corps jof the Army happen to join or do duty together, the officer highest in rank of the line of the Army, Marine Corps, or militia, by commission, there on duty or in quarters, shall command the ivhole, and give orders for what is needful to the service, unless otherwise specially directed by the President, according to the nature of the case.' Articles 25, 26, and 27, Section 14, of the British Code of 1774 contain provisions respecting the relative rank of officers of the Household Troops, or personal guards of the sovereign, when serving in conjunction with offi- cers of other regiments of the British military establishment. The principle in respect to the right of command therein prescribed, "that the senior offi- cer present for duty shall command the whole," was embodied in Articles ' Dig. J. A. Gen , 138, par. 3. In an exceptional case, that of the special court of inquiry authorizeil by Congress in the Joint Resolution of Feb. 13, 1874, the court was required to express an opinion not only upon the " moral " but upon the "technical and legal responsibility " of thp officer for the " nflenses " charired. ^ Ibid , nar. 4. Thus the court of inquiry on the conduct of the Seminole War adverted in its opinion unfavorably upon certain oilensive and reprehensible language employed against each other by tlJe two general ofHcers concerned, the one in liis slate- ment to the court and the other in his official communications which were put in evidence. See G. O. 13, Hdqrs. of Army, 1837. ' See Article 115, supra. * Compare G. O. 33, Dept. of Arizona, 1871. •^Dig. J. A. Gen., 189. See this ruling published, as adopted by the President, in G. C. M. O. 40, Hdqrs. of Army, 1880. .1 560 MILITARY LAW. 25 and 26, Section 13, of the American Code of 1776, and was there applied to the case of troops of the United States serving in connection with those belonging to the several States. In the Articles of 1806, Article 25, Section 13, of the Code of 1776 appears as Article 62 (Article 26 being omitted), to which the provision which is embodied in the last clause of Article 122 was added; the added clause^ being jn substance an express recognition of the constitutional jpowers of the President as commander-in- chief7but in form an excepting clause containing a direction that the' rule of command therein prescribed should not apply "when otherwise specially directed by the President of the United States, according to the nature of the case." ' ' The terras "rank" aud "command" have received executive interpretation in para- graphs 7 and 13 of ihe Army Regulations of 189o Military rank is that character or quality bestowed on military persons which marks- their station, aud confers eligibility to exercise command or authority in the military ^^\ service wilhln the limits prescribed by law. It is divided into degrees or grades, which \ mark the relative positions aud powers of the different classes of persons possessing it. V Par7, A. K. 1895. ^-' Rank is generally held by virtue of office in a regiment, corps, or department, but may be conferred independently of office, as in the case of retired officers and of those hold- ing it by brevet. Par. 8, A. R. 1895. The following are the grades of rank of officers and non-commissioned officers : 1. Major-seueral. 11. Quartermaster-sergeant (regimental). 2. Brigadier-general. 13. Ordnance, commissary, and post quar- 3. Colonel. terrnasler-sergeant, hospital stew- 4. Lieutenant-colonel. ard, first-class sergeant of the Signal 5. Major. Corps, chief musician, principal 6. Captain. musician, chief trumpeter, and sad- 7. First lieutenant. dler-sergeant. 8. Second lieutenant. 13. First sergeant. 9. Cadet. 14. Sergeant and acting hospital steward. 10. Sergeant-major (regimental). 15. Corporal. In each grade date of commission, appointment, or warrant determines the order of precedence. Par 9, A. R. 1895. A determination by the legislative and executive branches of the Government as to the relation or superior authority among military officers is conclusive upon the judiciary. De Cells m. U. S.. 13 C. Cls. R., 117. / Command is exercised by virtue of office and the special assignment of officers hold- ( ing mi!i;:iry rank who are eligible by law to exercise command. Without orders from ^^i competent authority an officer cannot put himself on duty by virtue of his commission --•"V^V alone, except as contemplated in the 24th and 122d Articles of War. Par. 13, A. R. 1895. The following are the commands appropriate to each grade : 1. For a captain, a company. 2. For a major or lieutenant-colonel, a battalion or squadron. 3. For a colonel, a regiment. 4. For a brigadier-general, two regiments. 5. For a major-general, four regiments. Par. 14, A. R. 1895. The functions assigned to any officer in these regulations by title of office devolve lyjon the officer acting in his place, except when otherwise specified An officer in tem- porary command shall not, except in urgent cases, alter or annul tlie standing orders of the permanent commander without authority from the next higher commander. Par. 15, A. R. 1895. An officer who succeeds to any command or duty stands in regard to his duties in the same situation as his predecessor. The officer relieved will turn over to his .successor all orders in force at the time and all the public property and funds pertaining to his com- mand or duty, and will receive therefor duplicate receipts showing the condition of each article. Par. 16, A. R. 1895. THE ARTICLES OF WAR 561 Article 123. In all matters relating to the rank, duties, and rights of officers the same rules and regulations shall apply to officers of the Regular Army and to volunteers commissioned in or mustered into said service, under the laws of the United States, for a limited period.' . This provision first appeared in statutory form as Section 2 of the Act of March 2, 1867." It was embodied without change as Article 123 of the revision of 1874. Article 124. Officers of the militia of the several States when called into the service of the United States shall, on all detachments, courts-martial, and other duty wherein they may be employed in conjunction with the regular or volunteer forces of the United States, take rank next after all officers of the like grade in said regular or volunteer forces, notwithstanding the com- missions of such militia officers may be older than the commissions of the said officers of the regular or volunteer forces of the United States. The provision embodied in this Article, though derived in its present form from an enactment of relatively recent date," is in substance a re-enactment of a principle well known to British military practice, which regulates the relative rank of officers of the regular establishment when serving with detachments of colonial forces. The provision in question will be found in Section 19 of the British Code of 1774, which relates to the relative rank of the officers of the British troops serving in America in con- junction with the several contingents of troops furnished by the colonies in the wars prior to the outbreak of the Revolution. ~-^ Aeticle 125. In case of the death of any officer, the major of his regi- \ / / ment, or the officer doing the major's duty, or the second officer in command 4^ ' at any post or garrison, as the case may be, shall i7nmediately secure all his / effects then i n caj jip-w-efiMixtazSj and shall make, and transmit to the office I of the Department of War, an inventory thereof. This provision appeared as the first clause of Article 1, Section 17, of the British Code of 1774, as Article 1, Section 15, of the American Code of 1776, and as Tio. 94 of the Articles of 1806. This Article, in connection with the two preceding Articles, provides for the securing of the effects of deceased officers and soldiers, making inventory of the same, and accounting for them to the proper legal representative, etc. These Articles have special reference to cases of military persons who die while in active service in the field or at remote military posts, and their provisions apply only to such effects as are left by the deceased " in camp or quarters." An attempt by the commander, etc., to secure effects left elsewhere would not be within ' For a discussion of this subject in its application to court-raartial procedure, see the cliapters entitled respectively The Constitution op Courts-martial, The Compo- sition OF OouRTS-MABTiAL, and Thb Incidents of the Trial. See, also, notes to Article 122, supra. « 14 Stat, at Large, 435. » Section 2, Act of March 2, 1862 (14 Stat, at Large, 430). 562 MILITARY LAW. the authority here given, and might subject the oflScer to the liability of an administrator; such a proceeding would not, therefore, be advisable.' Upon accounting to the duly qualified legal representative, as directed in the Article, the responsibility of the oflBcer is discharged, and it remains for the representative of the deceased to dispose of the property according to the law applicable to the case.' ^ Akticle 126. In case of the death of any soldier, the commanding officer / of his troop, battery, or company shall immediately secure all his effects then ^ : in camp or quarters, and shall, in the presence of two other officers, 7nake an ' inventory thereof, which he shall transmit to the office of the Department of \ War. This appeared as Article 3, Section 17, of the British Code of 1774, as Article 3, Section 15, of the American Code of 1776, and as No. 95 of the Articles of 1806." Article 127. Officers charged with the care of the effects of deceased \ officers or soldiers shall account for and deliver the sams, or the proceeds . thereof, to the legal representatives of such deceased officers or soldiers. ' , And no officer so charged shall ie permitted to quit the regiment or post until he has deposited in the hands of the commanding officer all tlie effects of such deceased officers or soldiers not so accounted for and delivered.* Article 128. The foregoing articles shall be j:£ad-tmi_mblished once in_everji^ixjnonths to every garrison, regiment, troop, or conipany in fh'e service of the United States, and shall be duly observed and obeyed by all officers and soldiers in said service. Article 1, Section 30, of the British Code of 1774 contained the require- ment that the Articles of War should be read to the troops once in two months, and this provision was embodied as Article 1, Section 19, in the American Code of 1776. The clause requiring the Articles to be read every two months was, in Article 101 of the Code of 1806, modified so as to require such reading once in six months; in this form the Article was embodied in the revison of 1874. Section 1343. All persons who, in time of war, or of rebellion against the supreme authority of the United States, shall be found lurking or acting as spies in or about any of the fortifications, posts, quarters, or encamp- ' Compare Samuel, 6.59 ; Hough (Practice), 558. ' Dig. J. A. G-en.. 139, par. 1. A military employee of the United States service havins died in the service, his remains, at the request of his relatives, were sent to them on a Mississippi steamboat. Wages being due to the employee at the time of his death, the disbursing officer paid out of these the charges of the transportation, and turned over the balance to the man's heir.«. Held, in view of the tenor and effect of this Arti- cle, that the disposition of the funds in this case was erroneous, and that the full wages due (without deduction) should have been accounted for to the " legal representatives" of the deceased. Ibid., par. 2. ' See Article 125, supra. * See Articles 125 and 136, supra. TEE ARTICLES OF WAB. 563 ments of any of the armies of the United States, or elsewhere, shall be triable by a general court-martial or by a military commission, and shall, on conviction thereof, safEer death. , Section 1343 Js joi^jgfJit'Le few provisions of onr law authorizing the trjal,_ia.,time ofjvarj of civilians by military cgnrts. The majority, how- ever, of the persons brought to trial as spies during the late war were mem- bers of the army of the enemy. The gravamen of the offense of the spy is the treachery or deception practiced — the being in disguise or acting under false pretenses.' An ofi&cer or soldier of the enemy discovered "lurking" in or near a camp or post of our army disguised in the uniform or overcoat of a United States soldier is prima facie a spy, and liable to trial as such. So an officer or soldier of the enemy who without authority and covertly penetrates within our lines, disguised in the dress of a civilian, may ordinarily be presumed to have come in J;he character of a spy, unless by satisfactory evideuce that he came for some comparatively venial purpose, as to visit his family, and not for the purpose of obtaining information, he may rebnt the presumption against him and show that his offense was a simple violation of the laws of war.' Where an officer of the enemy's army, arrested while lurking in the State of New York in the disguise of citizen's dress, was shown to have been iu the habit of passing, for hostile purposes, to and from Canada, where he held communication with agents of the enemy and conveyed intelligence to them, held that he was amenable to trial as a spy before a military court under the statute.' An officer of the enemy's army, having come secretly within our lines, ' proceeded from Baltimore through a part of the country containing numerous military posts, etc., to Detroit, where he entered Canada, com- municated with the enemy's agents there and received from them letters to be conveyed to Richmond. On his return, while traveling under an assumed name, and disguised by citizen's dress and an artificial coloring of the hair, he was recognized and arrested, and upon his arrest destroyed at once his papers. It was held that he might properly be brought to trial and his offense investigated under a charge of being a spy, and that his claim that he was merely a bearer of official dispatches was entitled to but slight con- sideration in view of the fact that he had taken the first opportunity to destroy the evidence on which such claim was based.' Where a soldier of the enemy's army, separated from it on its retreat from Maryland in 1864, was arrested, after wandering about in disguise within our lines for a month, seeking for an opportunity to make his way to ' HfiUeck, Int. Law, 406-7. «Dlg. J. A. Gen., 708, par. 1. ' Ihid., par. 2. * Ibid., 709, par. 3. 564 MILITAET LAW. the enemy's forces and join his regiment, it was held that he was not prop- erly chargeable with the offense of being a spy, but shoald be treated as a prisoner of war.' A mere violation of the law of war prohibiting intercourse between belligerents, committed by a civilian in coming withoub authority within our lines from the enemy's country, cannot properly be regarded as attach- ing to him the character of a spy.' The spy mustjDe takeo, injlagrante delicto. If he succeeds in making ,' his return to his own army or country, the crime, according to a well-settled ^ I principle of public law, does not follow him ; and if subsequently captured ^V"''" I in battle or otherwise, he cannot properly be brought to trial as a spy.' ' Dig. J. A. Gen., 709, par. 4. « Ibid., 710, par. 5. ., ' Ibid., par. 6. The leading case on this point in this country is In the Matter of Martin, reported in 45 Barb., 143, and 31 How. Pr., 228. APPEKDIOES. A. THE PEINCE RUPERT ARTICLES. B. THE BRITISH ARTICLES OF 1874. C. THE AMERICAN ARTICLES OP 1776. D. THE AMENDMENTS OF 1786. E. THE ARTICLES OF 1806. V. FORMS OP CHARGES. Q. FORMS OP PLEAS, ETC. H. FORM OF RECORD: GENERAL COURT-MARTIAL. I. FORM OF RECORD: SUMMARY COURT. J. FORM OF RECORD: FIELD-OFFICER'S COURT. K. FORM OF RECORD : GARRISON AND REGIMENTAL COURTS. L. FORM OP RECORD; RETIRING BOARD. M. FORM OF RECORD : BOARD OF EXAMINATION. N. FORM OF RETURN TO THE WRIT OP HABEAS CORPUS. O. MISCELLANEOUS FORMS. P. MAXIMUM PUNISHMENT ORDER. 565 APPENDIX A. TRE PRINCE RUPEET ARTICLES^ ARTICLES AND EULES EOR THE BETTER GOVERNMENT' OP HIS MAJESTIES FORCES BY LAND DURING THIS PRESENT WAR.= PUBLISHED BY HIS MAJESTIES COMMAND. MDCLXXIII. DUTIES TO ALMIGHTY GOD. Article 1. All Officers and Soaldiers (not having just impediment) shall diligently frequent divine service and sermon, on Sundays, and other days, ' These Articles appear in Volume XV of the Parliamentary Papers, 1867, p. 338, accompanied by the following note, presumably by Mr. Clode, the author of the " Military Forces of the Ciowu ": '■ These Articles, at the time of their promulgation, gave rise to much controversy in the House of Commons. In tlie debate on the resolution of the standing army being a grievance, Mr. Secretary Coventry explained the origin of these Articles. ' Martial law,' he said, ' then was the same as it had ever been.' " 'In Lord Stafford's command, and the Earl of Holland's, where he disbanded the northern army and that of Lord Essex's army (we may learn of our enemies), these were compared with all Articles, and the best were extracted, and you will find there no French Articles.' They were only to be executed when the army was abroad, and then the king's name was used.* They were issued by Prince Rupert's authority, and would determine with his commission. f The fact that they were issued by Prince Rupert, and not by the king, received a singular confirmation, from the Articles not lieiug found in the State Paper Otfice, though I have searched for them in the year 1673. The copy printed here is from what purports to be an oriainnl print of the Articles on ihirty- fine folio pages, and which was brought to the War Oiiice in 1859 by one of the poor brethren of the Charter Hou.se. " These Articles must be distinsfuished from a ' Proclamation issued by Charles II. by Order in Council of the 6th of December, 1672,' and whicli was presented ns a griev- ance by the House of Commons. The proclamation was fur. preventing of disorders that may be committed by soldiers, and is to be found as No. 305 of State Papers Proc- lamations, 1672 " The Council Books contain the following entry: " ' At the Court of Whitehall, this 6th Dec. 1672. "'Pre.'^ent ; " ' The King's Most Excellent Mat'" &c. &c. ■" ' This day his Ma""" Prnclamation fnr preventing of disorders that may be committed by soldiers being read at the Board, was approved and signed by his Ma"", and acoordinsly ordered to be printed and published.' " X ' The "present war "here referred to is that between England and Holland, which began on March 17, 1672, and was terminated by the Treaty of Westminster on February 9, 1674. * 4 Parliamentary History, 605. + Ibid.. 619. tSee, also, Manual of Military Law, p. 8; Clode, Mihtary Law, p. 15. 567 568 APPENDIX A. especially festivals, or days set apart for pnblick fasting and humiliation, in each places as shall be appointed for the Eegiment wherein they serve. And for those who either wilfully or negligently absent themselves from divine service or sermon, or else, being present, do behave themselves undecently or irreverently during the same; if they be Officers, they shall be severely reprehended at a Court-martial ; bat if Souldiers, they shall for every such first offence, forfeit each man 12 pence, to be deducted out of his next pay ; and for the second offence, shall forfeit 12 pence, and be laid in Irons for 12 hours. And'for every like offence afterwards, shall suffer and pay in like manner. Article 2. During the time of divine service, publick prayer,, and sermon, as aforesaid, if any sutler, or seller of ale, beer, wine or any other drinks, bread, victuals, or other Commodities or merchandize whatsoever, attending the Army, shall put or set any such thing to sale, he shall forfeit the full value thereof, for the use of the poor. Article 3. "Whosoever shall use any unlawful Oath or Execration (whether Officer or Souldier) shall incur the same penalty as is exprest in the 1st Article. Article 4. If any Officer or Souldier, shall presume to blaspheme the holy and undivided Trinity, or the Persons of God the Father, God the Son, or God the Holy Ghost, or shall presume to speak against any known Article of the Christian Faith, he sliall have his tongue burned through with a red hot Iron. Article 5. If any Officer or Souldier shall abuse or prophane any place dedicated to the Worship of God, or shall offer violence to any Chaplain of the Army, or any other Minister of God's "Word, he shall suffer such punishment, as shall be inflicted on him by a Court-martial. But whoever shall take any of the IJtensils, or Ornaments, belonging, or dedicated to God's Worship in any Church or Chappel, shall suffer death for the fact. Article 6. After the service of God Almighty, all Officers and Souldiers shall serve Us faithfully to the best of their skill, power, and understanding. And to that purpose, every one of them, of what quality or condition soever, shall for himself take the following Oath, which shall be administered by such person or persons,. and in such places, as Our Self or Our General shall appoint. DUTIES TO HIS SACEED MAJESTY, AND KINGLY GOTEENMENT. The Oath of Fidelity, to be taken by every Officer and Souldier in the Army: I, A. B., do Swear to be true and faithful to my Soveraign Lord King Chables, and to His Heibs and lawful Successors ; And to be obedient in THE PBINCE RUPERT ARTICLES. 569 all things to his General or Lieutenant General, for the time being; And will behave myself obediently towards my Saperiour Officers, in all they shall commai;d me for His Majesties Service. And I do farther Swear, That I will be 1 true, faithful, and obedient Servant and Souldier, every way per- forming my best endeavours for His Majesties Service, obeying all Orders, and submitting to all such Rules and Articles of War, as are, or shall be, established by His Majesty. So help me God, etc. Article 7. No Officer or Souldier shall use any traiterous words against the sacred Person of the King's most Excellent Majesty, upon pain of death. Article 8. Whosoever shall hold correspondence with any of Our Enemies, or shall give them advice or intelligence, either by letters, messages, signs, or tokens, or any manner of way whatsoever, shall suffer death for it. And whatever Regiment, Troop, or Company shall treat with the Enemy, or enter into any condition with them, without Our leave, or leave of Our General, or of the chief Commander in his absence ; the Officers of such Regiment, Troop, or Company, who are found guilty, shall dye for it ; and of the Souldiers who shall consent thereunto, every tenth man by lot shall be hanged, and the rest shall be punished at the discretion of Our General Court-martial. But whatever Officers or Souldiers can prove, that they did their utmost to resist and avoid such a treaty, and were no way partakers of the crime, they shall not only go free, but shall also be rewarded for their constancy and fidelity. Article 9. Whoever shall go about to entice or perswade, either Officer or Souldier, to joyn or engage in any traiterous or rebellious act, either against Our Royal Person or Kingly Government, shall suffer death for it: And whoever shall not reveal to his superiour Officer such a conspiracy or intended rebellion, so soon as ever it shall come to his knowledge, shall be judged equally guilty with the contrivers of such a plot or conspiracy, and consequently shall suffer the same penalty. Article 10. Whoever shall presume to violate Our Safe-guard, Safe- conduct, or Protection (knowing the same) shall suffer death or such other punishment as shall be inflicted upon him by Our General Court-martial. DUTIES TOWARDS SUPERIOUE OFFICERS MST) COMMANDERS. Article 11. If any Officer or Souldier shall behave himself disrespectfully towards Oar General, Lieutenant General, or other Chief Commander of the Army, or speak words tending to his harm or dishonour, he shall be punished according to the nature and quality of the offence, by the Judg- ment of Our General Court-martial. Article 12. He, who in the presence of Our General, Lieutenant 570 APPENDIX A. General, or other Commander in Chief, shall draw his Sword, with a pur- pose to do any OflBcer, or any of his fellow Sonldiers, a mischief, shall suffer such punishment as a Court-martial shall think fit to inflict upon him for the same offense. Article 13. Whoever shall presume to violate any Safe-conduct or Pro- tection, given by Our General, Lieutenant General, or other Commander in Chief of Our Forces (knowing the same) shall suffer death, or such other punishment as shall be inflicted upon him by Our General Court-martial. Article 14. If any number of Souldiers shall presume to assemble to take council amongst themselves for the demanding their pay, any inferiour Officers accessary thereunto shall suffer death for it, as the heads and ring- leaders of such mutinous and seditious meetings; and the Souldiers shall be punished, either with death or otherwise, at the discretion of Our General Court-martial. And if any Captain, being privy thereunto, shall not sup- press the same, or complain of it, he shall likewise be punished with death or otherwise, as Our General Court-martial shall think fit. Article 15. No officer or Souldier shall use any words tending to sedition, mutiny, or uproar, upon pain of suffering such punishment as shall be inflicted on him by a Court-martial. And whoever shall hear any mutinous or seditious words spoken, and shall not with all possible speed reveal the same to his superiour Officers or Commanders, shall be punished as a Court-martial shall think fit. Article 16. If any inferiour Officer or Souldier, shall refuse to obey his superiour Officer, or shall quarrel with him, he shall be cashier'd, or suffer such punishment as a Court-martial shall think fit. But if any Souldier shall presume to resist any Officer in the execution of his Office, or shall strike, or lift up his hand to strike, or shall draw, or offer to draw, or lift up any weapon against his superiour Officer, upon any pretense whatsoever, he shall suffer death, or other condign punishment, as our General Court- martial shall think fit. DUTIES IJT MARCHIN-G OE IN" ACTIOlfr. Article 17. Every Souldier shall keep silence when the Army is march- ing, embattelling, or taking up their quarters (to the end that their Officers may be heard, and their Orders executed) upon pain of imprisonment, or such other punishment as a Court-martial shall think fit, according to the circumstances and aggravation of the fact. Article 18. He who shall in anger draw his sword, whilst his Colours are flying, either in battel, or upon the march, unless it be against the Enemy, shall suffer such punishment as a Court-martial shall think fit. Article 19. When any march is to be made, every man who is sworn, shall follow his Colours, and whoever shall (without leave) stay behind, or TEE PRINCE RUPERT ARTICLES. 571 depart above a mile from the Camp, or out of the Army, without license, shall suffer such puaishment as shall be inflicted upon him by a Court- martial. Article 20. "When the Army, or any part of them, shall march through or lodge in the country, none of them shall extort free quarter or money from them, or shall commit any waste or spoil, or cut down fruit-trees, deface walks of trees, parks, warrens, fish-ponds, houses or gardens, tread down or otherwise destroy standing corn in the ear, neither shall they put their horses into meadows without leave from their chief OfiScer, upon pain of severe punishment. But if any Officer or Souldier shall wilfully burn any house, barn, stack of corn, hay, or straw, or any ship, boat, or carriage, or anything which may serve for the provisioa of the Army, without order from the Commanding Chief, he shall sufEer death for it. Article 21. When the army, or any part thereof, shall come to engage the Enemy in fight, whoever shall run from his Colours (be he native or stranger) or doth not defend them to the utmost of his power, so long as they are in any danger, shall suffer death for it. And whatsoever Souldiers shall at any other time run away from his Colours, shall sufEer death, or such other punishment as Our General Court-martial shall think fit. OKDBES AND KULES WHEK AST ENEMY IS SUBDUED, ETC. Article 22. If any Eegiment or commanded party, shall not behave themselves in fight against an Enemy as they ought to do, they shall answer for it before Our General Court-martial; and the Officer or Souldier, who shall be found faulty therein, shall suffer such punishment as shall be thought fit to be inflicted on them by Our General Court-martial. Article 23. "When it shall please God that Our forces shall beat the Enemy, every man shall follow his Officer in the chase; but whoever shall presume to pillage or plunder till the Enemy be entirely beaten, and if mis- fortune happen, he shall suffer death, or such other punishment as shall be pronounced against him by Our General Court-martial, and the pillage so gotten shall be forfeited to the use of the sick and maimed Souldiers. Article 24. "When any Town or place shall be taken (though by assault) no man shall presume to pillage any Church or Hospital (without leave or necessary reason) much less to set fire to any Church Hospital, School, or Mill; neither shall they offer violence to any Churchmen, aged men or women, maids or children, unless they be found actually in arms against them, upon pain of death, or other punishment at the discretion of Our General Court-martial; but whoever shall force a woman to abuse her (whether belonging to the Enemy or not) and the fact be sufficiently proved against him, he shall certainly suffer death for it. 572 APPENDIX A. Article 25. In what place soever it shall please God that the Enemy shall be subdued and overcome, all the Ordnance, Ammunition, and Victuals, that shall be there found, shall be secured for Oar use, and for the better relief of the Army ; and one-tenth part of all the spoil shall be laid apart towards the relief of the sick and maimed Souldiers. Article 26. Whosoever shall take any General Officers as prisoners, shall present them to Us, or Our General, who will reward them. And they who shall take other prisoners, may keep to themselves the Officers and Volnntiers, giving their names to the Martial General; but shall not put them to ransome, without Our, or Our General's leave. And they are immediately to send all private Souldiers so taken to the Martial General, who is to take them into custody. DUTIES liJ^ CAMP, OE IN GAEEISON. Article 27. If "any Souldiers shall be drunk in the Enemies quarters, before they have wholly laid down their arms and yielded to mercy, and any hurt or mischief ensue thereon, such drunken Souldier shall suffer death for it, or such other punishment as Our General Court-martial shall think fit ; but if no damage ensue thereby, they shall be laid in Irons, and live on bread and water for the space of three days. Article 28. All Officers, whose charge it is, shall see the quarters kept clean and neat, upon pain of severe punishment. Article 29. No Officer shall lye out all night from the Camp or Garrison, without his superiour Officer's leave obtained for the same, upon pain of being punished for it as a Court-martial shall think fit. Neither shall any Souldier or Officer go any by-way to the Camp, other than the common way laid out for all, upon pain of being punished as aforesaid. But if any Officer shall without leave, be absent from bis quarters a week, he shall lose one month's pay; and if longer, he shall be discharged of his Command, or place, as a man unfit to bear Office in the Army. Article 30. No Souldier shall presume to make any alarm in the quarter, by shooting off his musquet in the night, after the watch is set, unless it be at an Enemy, upon pain of suffering such punishment as a Court-martial shall think fit. Article 31. No Souldier shall in anger draw his sword in any Camp, Post, or Garrison, upon pain of suffering such punishment as a Court-mar- tial shall think fit to inflict upon him for the same. Article 32. "When warning is given for setting the watch, by beat of drum, or the sound of trumpet or fife, if any Souldier shall absent himself without reasonable cause, he shall be punished by riding a wooden horse, or otherwise, at the discretion of the Commander. And whatever Souldier shall fail at the beating of a drum, or the sound THE PBINGE RUPERT ARTICLES. 573 of a trumpet or fife, or upon an alarm given, to repair to his Oolonrs, with his arms decently kept and well fix'd (unless there be an evident necessity to hinder him from the same) he shall either be clap'd in Irons for it, or suffer such other punishment as a Court-martial shall think fit. Article 33. "Whoever makes known the Watch-word without order, or gives any other Word but what is given by the Officer, shall suffer death, or such other punishment as Our General Court-martial shall think fit. Article 34. A Oentinel, who is found sleeping in any Post, Garrison, Trench, or the fike (while he should be upon his duty) shall suffer death, or such other punishment as Our General Court-martial shall by their sen- tence inflict for the same. And if a Centinel or Perdue shall forsake his place, before he be relieved or drawn off, or upon discovery of an Enemy shall not give warning to his quarters according to direction, he shall suffer death, or such other punish- ment as Our General Court-martial shall think fit. As likewise, if any Souldier imployed as a Scout, shall not go upon that service so far as he is commanded, or having discovered an ambush or approach of the Enemy, shall not return forthwith to give notice or warning to his quarters, or if he enter into any house, and there or elsewhere be found sleeping or drunk, whilst he should have been upon the service, he shall suffer death, or such other punishment as shall be inflicted upon him by the sentence of Our General Court-martial. Article 35. Whoever shall do violence to any who shall bring victuals to the Camp or Garrison, or shall take his horse or goods, shall suffer death, or such other punishment as he shall be sentenced to by Our General Court- martial. If any shall presume to beat or abuse his host, or the wife, child, or servant of his host, where he is quartered or billetted, he shall be put in Irons for it: And if he do it a second time, he shall be further punished, and the party wrong'd shall have amends made him: And if any presume to exact free quarter, without leave of the chief Officer upon the place, they shall be severely punish'd at the discretion of a Court-martial. Article 36. No Souldier or Officer shall use any reproachful or provok- ing speech or act to another, upon pain of Imprisonment, and such further punishment as a Court-martial shall think fit. Neither shall any Officer or Souldier presume to send a challenge to any other Officer or Souldier, to fight a duel : Neither shall any Souldier or Officer presume to upbraid another for refusing a challenge : for, whoever shall offend in either of these cases, if he be an Officer, he shall lose his place and command, whatever it be; and if a private Souldier, he shall ride the wooden horse, and be further punished as a Court-martial shall think fit. And if any Corporal, or other Officer, commanding a guard, shall will- 574 APPENDIX A. ingly or knowingly, sufEer either Souldiers or Officers, to go forth to a duel, or private fight, he shall be punished for it by the sentence of a Court- martial. Forasmuch as all Officers, of what condition soever, shall have power to part and quell all quarrels, frays, or sudden disorders between Souldiers and Officers, though of another Company, Troop, or Eegimenf, and to commit the disorder'd persons to prison, until their proper Officers be acquainted therewith: And whoever shall resist such an Officer (though of another Company, Troop, or Eegiment) or draw his sword upon him, shall be severely punish'd as Our General Court-martial shall appoint. But if two or more going into the field to fight a duel, shall draw their swords, or other weapons, and fight, though neither of them fall upon the spot, nor dye afterwards of any wound there received, yet if they be Officers, they shall lose their places; and if common Souldiers, they shall be punish'd with riding the wooden horse, or otherwise as a Court-martial sliall direct. And lastly, in all cases of duels, the seconds shall be taken as principals and punish'd accordingly. ORDERS AXD RULES FOR THE REGDLATIOIf OF MUSTERS. Article 37. None shall be mustered, but such as are completely armed, viz., each horseman to have for his defensive arms, back, breast, and pott, and for his ofEensive arms, a sword, not under three foot long in the blade, and a case of pistols, the barrels whereof not to be under fourteen inches in length, and each trooper of Our Guards to have a carbine, besides the afore- said arms ; and the foot to have each souldier a sword, or dagger for their musquets, and each pikeman a pike of sixteen foot long and not under; and each musquettier a musquet (with a collar of bandaliers) the barrel of which musquet to be about four foot long, and to contain a bullet, fourteen of which shall make a pound, running into the barrel. If any borrow arms of another to pass the muster withall, the lender, if he be a souldier, shall forfeit the value of the arms so lent, to be taken out of his pay, and the borrower shall be severely punish'd. Article 38. None shall be allowed upon any muster, who, by loss of limbs, or otherwise, is unable for Our service, but by order from Us, or Our General. Article 39. No house-keeper or inhabitant in the usual quarters of Our guards of horse or foot, or in the usual quarters of any other regiment or garrison, shall be received or entertained with Our service and pay, and mustered as a private souldier, without order from Us, or Our General; nor shall any Officer demand or receive directly or indirectly any sum of money whatever, from any under his command, for admitting and entertaining him THE PRINCE SUPEBT ARTIGLES. 6Y5 into his troop, company, or garrison, upon pain of being cashier'd, and rendered uncapable of ever being imployed again in the Army. Article 40. No Captain of a troop or company shall, upon pain of being rendered uncapable of ever serving in Our Army any more, be allowed to muster any servant in his troop or company, but those who are not only fit and able for Our service, but also are bound by oath and pay to follow the troop or company, and who duly and constantly appear at every muster in proper arms, uuless they have leave to be absent, which is not to be granted, but upon a real and good occasion. And whatever other person shall present himself or his horse in the muster to mislead the Muster-master, or defraud Us, shall suffer such punishment as Our General Oourt-mart'al shall think fit. Article 41. No man shall presume to present himself to the muster, to be inrolled in the muster-rolls, by a counterfeit or wrong name, or sirname, or place of birth or habitation, upon pain of such punishment as Our 'General Court-martial shall think fit. Article 42. No Officer or Souldier shall be allowed or passed the muster, who does not diligently attend his duty, and appear at the muster, unless he be absent by Our permission, or leave from Our General, or the chief Ofiicer commanding the regiment, troop, or company, to which he belongs. And no Officer or Souldier is to be absent as aforesaid (without leave from Us or Our General) for above two months in a year. And there are to be always two Commission Officers at least with every troop or company, save only in the troops of horse and companies of foot •which are in garrison, of which field-Officers or Captains, in which troops and companies respectively one Commission- Officer (at least) is to be present with them. Article 43. All passes and licenses for being absent shall be brought to the Muster-master, who is required to enter the same in a book fairly written, to prevent collusion; and whoever is absent longer than the time limited in his pass for his absence, shall be respited and not allowed the muster, with- out order from Us or Our General. But if the Commissaries-General, shall upon the muster find too many absent from any troop or company at a time, they are to complain to Us, or Our General. Article 44. No muster-master shall knowingly let any pass the musters, but such as are qualified according to the precedent articles, upon the penalty of losing his place. Article 45. Whatever Lieutenant, Cornet, or Ensign, shall discover and make proof, to the General Officer or Colonel, that his Captain hath made false musters, the said Captain shall be cashier'd, and the Lieutenant, or JBnsign discovering as aforesaid, shall have the place of his Captain. And whatever Serjeant or Corporal shall discover and make proof of false 576 APPENDIX A. musters as aforesaid, the said Serjeant or Corporal shall have for each time the sum of fifty pounds, payable by the Pay-master at the first muster immediately following the discovery so made. But if the accusation shall upon examination be found false or malicious, in that case, he shall be immediately cashier'd, and suffer such further punishment as shall be judged fit by Our General Court-martial. Article 46. If any Souldier shall be sick, wounded, or maimed in Our service, he shall be sent out of the camp to some fit place for his recovery, where he shall be provided for by the Ofl&cer appointed to take care of sick and wounded Souldiers, and his wages or pay shall go on, and be duly paid, till it does appear that he can be no longer serviceable in Our Army, and then he shall be sent by pass to the countrey, and the money to bear his charges in his travel. Article 47. All Captains shall use their utmost endeavours to have their troops and companies compleat and full, and within two days after each general muster, bpth the Captain and Our Muster-master shall send to the Geueral (if he require it) and to the Treasurer or Pay-master of the Army, a perfect list or roll of all the Officers, Troopers, and Souldiers, or their troops and companies, that are in actual service, punctually expressing at the foot of the rolls, what new Officers, Troopers, and Souldiers have been entertained since the preceding muster, in lieu of such as have been cashier'd or are deceased, with the day when the one dyed or went off, and the other was entertained in his place. Article 48. All commissions granted by Us, or Our General, to any OfScer in pay, shall be brought to the Muster-master, who is to record and enter the same in a book fairly written. And no Commissioned-Officer shall be allowed in musters, without a commission from Us or Our General, and the same entered with the Com- missaries General of the musters, or their JDeputies, who are hereby required forthwith, and from time to time, to send the Officers names to the Secre- tary and Judge Advocate of Our Forces. Article 49. No Commission Officer after inrollment and being mustered, shall be dismiss'd or cashier'd, without order from Us, or Our General, or Our General Court-martial. But for Non-commission-Officers, or private Souldiers, their captains, with the approbation of their Colonels, or of the Governour of the Garrison where they are, may discharge them when they find cause, taking other Non-commission-Officer or Souldier in their places. Provided that such Colonel or Governour shall forthwith certifie the Commissaries General of the Musters, that (by their approbation) such ISTon-commission-Officers or Souldiers were discharged, and others taken in their places respectively. And in quarters and garrisons, where there are only single troops or companies, the captains certificates are forthwith to be sent and accepted by THE PBINOE RUPERT ABTI0LE8. 577 the Commissaries General, expressing the day of each Non-commission- Officer or Souldiers discharge, or death, and who was entertained in his place. Article 50. We do not expressly forbid any Souldier's duty, either of horse or foot, to be done by any other than the Souldier himself; but in case of sickness and disability, or other necessary cause, his Captain may dispence^ with his absence without causing him to find another to serve in his stead. Article 51. The Muster-master shall always (the night before) give notice to the Officer in chief commanding any regiment, troop, company, or garrison, of the time and place for their muster, that so the Officers and Souldiers may have time to make ready for the muster. Upon every muster, three muster-rolls are to be pepared of the respective troops and companies, in which rolls, the names of all private Souldiers are to be written alphabetically; one of which rolls is to be in parchment for the Pay-master, and to be subscribed (together with another roll which the Muster-master is to keep) by two Commission-Officers (at the least) of the respective troops and companies, and the Muster-master; the third muster- roll is to be subscribed only by the muster-master, which the Officer is ta keep. And no rolls are to be allowed by the Muster-master and Pay-master,, otherwise than as "We have herein directed: And the said muster-rolls are to be perfected forth:with upon every muster. Article 52. If a trooper or dragoner shall lose or spoil his horse, or any foot-souldier his arms, or any part thereof, by negligence or gaming, he shall remain in the quality of a pioneer or scavenger, till he be furnished with as good as were lost at -his own charge; and if he be not otherwise able, the one half of his pay shall be deducted and set apart for the providing of it, till he be refurnished. Neither shall any souldier pawn or sell, or negligently or wilfully break his arms, or any part thereof, or any hatchets, spades, shovels, pickaxes, or other necessaries of war, upon pain of severe punishment at the discretion of Our General Court-martial. And where arms or other necessaries aforesaid shall be pawn'd, they are to be forfeited and seized on for Our use. Article 53. All Officers and Souldiers, and also the Muster-masters, not duly observing these Orders and Instructions, and every of them respec- tively, shall be cashier'd or lyable to such other punishment as Our Self, Our General, or a Court-martial shall appoint. ^'^^ APPENDIX A. OEDEES CONCEKlfllfG VICTTJALS AND AMMUNITION. Article 54. None shall presume to spoil, sell, or convey away any ammu- nition delivered unto him, upon pain of suffering death, or such other punishment as Our General Court-martial shall think fit. Article 55. No officer, provider, or keeper of Our Victuals or Ammuni- tion for Our forces, shall imbezzle, or willingly spoil, or give a false accompt upon pain of suffering such punishment as Our General Court-martial shall think fit. Article 56. No Commissary or Victualler shall bring or furnish unto the Camp any unsound or unsavoury Victuals, of what kind soever, whereby sickness may grow in the Army, or the service be hindered ; and if upon examination before Our General Court-martial he shall be found guilty, he shall suffer such punishment as they shall think fit. Article 57. No Officer or Souldier shall be a Victualler in the Army, without consent and allowance of Our General, or of the Officer in chief of the regiment, upon pain of being punish'd at discretion. Article 58. No Victualler or Seller of beer, ale, or wine, belonging to the Army, shall entertain any Souldier in his house, booth, tent, or hut, after the warning peece, tattoe, or beat of the drum at night, or before the beating of the revalles in the morning; nor shall any Souldier (within that time) be anywhere, but upon his duty, or in his quarters: upon pain of punishment both to the Souldier, and entertainer, at the discretion of a Court-martial. OEDEES AND EULES FOE THE ADMINISTRATION OF JUSTICE. Article 59. The Commission-Officers of every regiment may hold a Court-martial for the regiment, upon all necessary occasions. There shall also be a Provost-martial of every regiment, who shall have the same privilege in his own regiment as the Provost-martial General hath in the Army or Camp, and such fees also as the Court-martial shall allow. Article 60. Those who are Judges in Our General Court-martial, or in regimental Court-martials, shall hold the same rank in those Courts as they do in the Army for orders sake; and they shall take oath for the due admin- istration of Justice according to these Articles, or (where these Articles assign no absolute punishment) according to their consciences,- the best of their Understanding, and the custome of war in the like cases: and shall demean themselves orderly in the hearing of causes (as becomes the gravity of such a Court); and before giving of sentence, every Judge shall deliver his vote or opinion distinctly; and the sentence is to be according to the plurality of votes; and if there happen to be an equality of votes, the President he is to have a casting voice. And when sentence is to be given, the President shall pronounce it; and after that the sentence is pronounced, the Provost-martial shall have warrant to cause execution to be done according to the sentence. THE PRINCE RUPERT ARTICLES. 579 Article 61. At Our General Court-martials, there shall be a Clerk, who is to be sworn to make true and faithful records of all the proceedings of the Court ; and there shall be also such other OiScers appointed, both for that, and also for the regimental Court-martials, as shall be necessary ; and Our General Court-martial may appoint and limit the fees of Our Provost-martial General, as they shall think fit. Article 62. All controversies, either between Souldiers and their Captains or other Officers, or between Souldiers and Souldiers, relating to their mili- tary capacities, shall be summarily heard and determined at the next Court- martial of the regiment. Article 63'. In any matter which shall be adjudged in any of the afore- said regimental Court-martials, either of the parties that finds himself agrieved may appeal to Our General Court-martial; who are to take care, that if the party appealing make not good his suggestion, recompeace be made to the other for the trouble and charge of such an appeal. Article 64. In all criminal causes which concern Our Crown, Our Advocate General, or Judge Advocate of Our Army, shall inform the Court and prosecute on Our behalf. Article 65. No Officers or Souldiers shall presume to hinder the Provost- martial, his Lieutenant, or servants, in the execution of his Office, upon pain of death, or such other punishment as a Court-martial shall think fit. But on the contrary, all Captains, Officers and Souldiers, shall do their utmost to apprehend and bringing to punishment all Offenders, and shall assist the OflBcers of Our Army for the purpose, especially the said Provost- martial, his Lieutenant, and servants. And if the Provost-martial, or his Officers, require the assistance of any Officer or Souldier, in apprehending any person, declaring to them that it is for a capital crime, and the party escape for want of aid and assistance, the party or parties refusing to aid or assist, shall suffer such punishment as a Court-martial shall inflict. Article 66. The Officer or Souldier, who shall presume to draw his sword in any place of Judicature, while the Court is sitting, shall suffer such punishment as shall be inflicted on him by a Court-martial. And We do hereby authorize Our Provost-martial General of Our Army, by his own authority, to apprehend such offenders. And if any Souldier being committed for any offence shall break prison, the said Provost-martial General shall by his own authority apprehend him; and the offender shall suffer death, or such other punishment as Our General Court-martial shall think fit. Article 67. If any fray shall happen within the camp, or place of garri- son, in any of the Souldiers lodgings, or where they meet, it shall be inquired into by the Officers of the regiment, and the beginners and pursuers thereof punish'd according to the quality of the offence. 580 APPENDIX A. Article 68. If any inferionr Officer, eibher of horse or foot, be wrong'd by his Officer, he may complain to his Colonel, or other superiour Officer of the regiment, who is to redress the same, upon due proof made of the wrong done him ; but if he fail therein, the party grieved is to apply to the General officer for redress: And if the accusation be false, the complainant is to be punish'd at the discretion of a Court-martial. Article 69. If any Colonel, or Captain, shall force or take anything away from any private Souldier, that Colonel or Captain shall be punish'd accord- ing to the qaality of the offence, by the judgment of Our General Court- martial. Bat if a Souldier shall be wrong'd, and shall not appeal to the Court, or his superiour Commanders, but take his own satisfaction for it, he shall be punish'd by the Judgment of a Court-martial. Article 70. If any Souldier dye, no other shall take or spoil his goods, upon pain of restoring double the value to him to whom they belonged, and of such further punishments as a Court-martial shall think fit. But the Captain of the Company of which such a Souldier was in shall take the said goods into his custody, and dispose of them for paying his quarters, and to keep the overplus (if any be) for the use of those to whom they belong, and who shall claim the same within three months after his death. And if any Captain or Officer dye, the Chief Commander shall take care of preserving his Estate in like manner. Article 71. No Provost-martial shall refuse to receive or keep a prisoner sent to his charge by authority, or shall dismiss him without order, upon pain of such punishment as a Court-martial shall think fit. And if the offense for which the prisoner was apprehended deserv'd death, the Provost-martial failing to receive and keep him as aforesaid shall be lyable to the same puaishment. Article 72. If any person be committed by the Provost-martial's own authority, without other command, he shall acquaint the General, or other chief Commander with the cause thereof, within twenty-four hours, and the Provost-martial shall thereupon dismiss him, unless he have order to the contrary. Article 73. No man shall presume to use any braving or menacing words, signs, or gestures, where any of the aforesaid Courts of Justice are sitting, upon pain of suffering such punishment .as the Court-martial shall think fit. Article 74. "Whatever is to be published, or generally made known, shall be done by beat of drum or the sound of trumpet, that so no man may pre- tend ignorance thereof. And after that, whoever shall be found disobedient, or faulty, against what is thus published shall be punish'd according to these Articles, or the quality of the fact. APPENDIX B. TEE BRITISH ARTICIES OF 177^. EULBS AND AETICLES FOE THE BETTEE GOVEENMENT OF HIS MAJESTY'S HOESE AND FOOT GUAEDS, AND ALL OTHBE HIS MAJESTY'S FOEOES IN GEEAT BEITAIN AND lEELAND, DOMINIONS BEYOND THE SEAS AND FOEEIGN PAETS, FEOM THE 34TH DAY OP MAECH, 1774. SECTioiir 1. DIVITSfB WORSHIP. Article 1. All Officers and Soldiers not having jnst Impediment shall diligently frequent Divine Service and "Sermon in the Places appointed for the assembling of the Eegiment, Troop or Company to which they belong; such as willfully absent themselves, or, being present, behave indecently or irreverently, shall, if Commissioned Officers, be brought before a Court Martial, there to be publickly, and severely reprimanded by the President; if Non Commissioned Officers or Soldiers every Person so ofEending shall, for his first offence, forfeit twelve pence to be deducted out of his next Pay; for the second Offence he shall not only forfeit Twelve pence, but be laid in Irons for Twelve Hours, and for every like Offence shall suffer and pay in like manner, which money so forfeited, shall be applied to the Use of the Sick Soldiers of the Troop, or Company, to which the Oifender belongs. Article 2. Whatsoever Officer or Soldier shall use any unlawful Oath or Execration, shall incur the Penalties expressed in the first Article. Article 3. Whatsoever Officer or Soldier shall presume to speak against any known Article of the Christian Faith shall be delivered over to the Civil Magistrate to be proceeded against according to Law. Article 4. Whatsoever Officer or Soldier shall profane any Place dedi- cated to Divine Worship, or shall offer Violence to a Chaplain of the Army, or to any Minister of God's Word, he shall be liable to such Penalty, or Corporal Punishment as shall be inflicted on him by a Court Martial. 581 582 APPEIiDIX B. Article 5. No Chaplain who is commissioned to a Eegiment, Company, Troop, or Garrison, shall absent himself from the said Regiment, Company, Troop, or Garrison (excepting in the case of Sickness or Leave of Absence) npon pain of being brought-to a Court Martial and punished as their Judg- ment and the Circumstances of his Offence may require. Article 6. "Wnatsoever Chaplain to a Eegiment, Troop, or Garrison shall be guilty of Drunkenness, or of other scandalous or vicious Behaviour derogating from the sacred Character with which he is invested, shall, upon due Proofs before a Court Martial, be discharged from his said Office. Section 2. MUTINY. Article 1. Whatsoever Officer or Soldier shall presume to use traiterous or disrespectful Words against Our Eoyal Person, or any of Our Eoyal Family, if a Commissioned Officer, he shall be cashiered; if aNon Commis- sioned Officer or Soldier, he shall sufEer such punishment as shall be inflicted upon him by the sentence of a Court Martial. Article 2. Any Officer or Soldier who shall behave himself with Con- tempt or Disrespect towards the General or other Commander in Chief of Our Forces, or shall speak Words tending to his Hurb or Dishonour, shall be punished according to the Nature of his Offence by the Judgment of a Court Martial. Article 3. Any Officer or Soldier who shall begin, excite, cause, or join in any Mutiny, or Sedition in the Eegiment, Troop, or Company, to which he belongs, or in any other Eegiment, Troop, or Company, either of Our Land or Marine Forces, or in any other Party, Post, Detachment, or Guard, on any pretence whatsoever, shall sufEer death, or, such other punishment, as, by a Court Martial, shall be inflicted. Article 4. Any Officer, Non Commissioned Officer, or Soldier, who, being present at any Mutiny or Sedition, does not use his utmost Endeavours to surpress the same, or coming to the knowledge of any Mutiny, or intended Mutiny, does not, without Delay, give Information thereof to his Command- ing Officer, shall be punished by a Court Martial with Death, or otherwise, according to the Nature of his Offence. Article 5. Any Officer or Soldier who shall strike his superior Officer, or draw, or offer to draw, or shall lift up any Weapon, or offer any Violence against him, being in the Execution of his Office, on any pretence whatso- ever, or shall disobey any lawful Command of his superior Officer, shall suffer Death, or such other punishment as shall, according to the Nature of his Offence, be inflicted upon him by the Sentence of a Court Martial. THE BBITISH ARTICLES OF 1774. 583 Section 3. of inlisting soldiers. Article 1. Every Non Commissioned Officer and Soldier who shall iolist himself in Our Service, shall, at the Time of his so inlisting, or wibhin four Days afterwards, have the Articles against Mutiny and Desertion read to him, and shall, by the Officer who iulisted him, or by the Commanding Officer of the Troop or Company, into which he was inlisted, be taken before the next Justice of the Peace, or Chief Magistrate of any City or Town Cor- porate (not being an Officer of the Army) or in foreign Parts, where Eecourse cannot be had to the Civil Magistrate, before the Judge Advocate, and in his presence take the following Oath "I swear to be true to Our Sovereign Lord King George, and to serve him honestly and faithfully in Defence of his Person, Crown and Dignity against all his Enemies, or Opposers whatsoever, and to observe and obey His Majesty's Orders, and the Orders of the General and Officers set over me by His Majesty", — which Justice or Magistrate is to give the Officer a Certificate, signifying that the Man inlisted did take the said Oath, and that the Articles of "War were read to him according to the Act of Parliament. Article 2. After a ISTon Commissioned Officer or Soldier shall have been duly inlisted, and sworn, he shall not be dismissed Our Service without a Discharge in Writing, and no Discharge granted to him shall be allowed of as sufficient which is not signed by a Field Officer of the Eegiment into which he was enlisted, or Commanding Officer, where no Eield Officer of the Eegiment is in Great Britain. Section 4. MUSTERS. Article 1. Every Officer commanding a Eegiment, Troop, or Company shall, upon the Notice given to him by the Commissary of the Musters, or from one of the Deputies, assemble the Eegiment, Troop, or Company, under his Command, in the next convenient Place for their being mustered. Article 2. Every Colonel or other Field Officer commanding the Eegi- ment, Troop, or Company, and actually residing with it, may give Furloughs to N'on Commissioned Officers and Soldiers in such Numbers, and for so long a Time as he shall judge to be most consistent with the good of Our Service; but no Non Commissioned Officer or Soldier shall, by leave of his Captain, or inferior Officer commanding the Troop or Company (his Field Officer not being present) be absent above Twenty Days iii six Months; nor shall more than two Private Men be absent at the same time from their Troop or Com- papy, excepting some extraordinary Occasion shall require it; of which 584 APPENDIX B. Occasion the Field Officer present with, and commanding the Regiment, is to be the Judge. Article 3. At every Muster the Commanding Officer of each Regiment, Troop, or Company there present, shall give to the Commissary Certificates signed by himself signifying how long such Officers who shall not appear at the said Muster, have been absent, and the reason of their absence. In like manner the Commanding Officer of every Troop or Company shall give Cer- tificates, signifying the Reasons of the Absence of the Non Commissioned Officers and Private Soldiers, which Reasons and Time of Absence shall be inserted in the Master Rolls opposite to the Names of the respective absent Officers and Soldiers: The said Certificates shall, together with the Muster Rolls, be remitted to Our Commissary's Office, within Twenty Days after such Muster being taken : On the failure thereof, the Commissary so offend- ing shall be discharged from Our Service. Article 4. Every Officer who shall be convicted before a General Court Martial of having signed a false Certificate relating to the Absence of either Officer or Private Soldier shall be cashiered. Article 5. Every Officer who shall knowingly, make a false Muster of Man or Horse, and every Officer and Commissary, who shall willingly sign, direct, or allow the signing of the Muster Rolls, wherein such false Muster is contained, shall, upon Proof made thereof by two Witnesses before a General Court Martial, be cashiered, and suffer such other Penalty as by the Act of Parliament is for that purpose inflicted. Article 6. Any Commissary who shall be con'victed of having taken Money by way of Gratification, on the mustering any Regiment, Troop, or Company, or on the signing of the Muster Rolls, shall be displaced from his Office, and suffer such other Penalty as by the Act of Parliament is inflicted. Article 7. Any Officer who shall presume to muster any person as a Soldier who is at other Times accustomed to wear a Livery, or who does not actually do his Dnty as a Soldier, shall be deemed guilty of having made a false Muster, and shall suffer accordingly. Section 5. K E T u E N s. Article 1. Every Officer who shall, knowingly, make a false Return to Us, to the Commander in Chief of Our Forces, or to any his superior Officer, authorized to call for such Returns, of the State of the Regiment, Troop, or Company, or Garrison, under his Command, or of Arms, Ammu- nition, Clothing, or other Stores thereunto belonging, shall, by a Court Martial, be cashiered. Article 2. The Commanding Officer of every Regiment, Troop, or Inde- pendent Company, or Garrison in South Britain, shall, in the beginning of TEE BRITISH ABTIOLES OF 177i. 585 eyery Month, remit to the Commander in Chief of Our Forces, and to Oar Secretary at War, an exact Return of the State of the Eegiment, Troop, Independent Company, or Garrison, under his Command, specifying the Names of the Officers not then residing at their Posts, and the Reason for and Time of their Absence. "Whoever shall be convicted of having through Neglect or Design omitted the sending such Returns, shall be punished according to the Nature of his Crime by the Judgment of a General Court Martial. Article 3. Returns shall be made in like Manner of the State of Our Forces in Our Kingdom of Ireland, to the Chief Governor or Governors thereof, as likewise of Our Forces in North Britain, to the Officer there •Commanding in Cliief ; wljieh Returns shall from time to time, be remitted to Us, as it shall be best for Our Service. Article 4. It is Our Pleasure that exact Returns of the State of Oui Garrisons at Gibralter, and Port Mahon, and of Our Regiments, Garrisons, and Independent Companies in Africa, and America, be, by their respective Governors or Commanders there residing, by all convenient Opportunities, remitted to Our Secretary at War, for their being laid before Us. Section 6. desertiok. Article 1. All Officers and Soldiers who, having received Pay, or having Ijeen duly inlisted in Our Service, shall be convicted of having deserted the same shall suffer Death, or such other Punishment as by a Court Martial shall be inflicted. Article 2. Any Non Commissioned Officer or Soldier who shall without leave from his Commandiag Officer, absent himself from his Troop, or Com- pany, or from any Detachment, with which he shall be commanded, shall, upon being convicted thereof, be punished according to the Nature of his Offence at the Discretion of a Court Martial. Article 3. No Non Commissioned Officer or Soldier shall inlist himself in any other Regiment, Troop, or Company without a regular Discharge from the Regiment, Troop, or Company, in -which he has last served, on the Penalty of being reputed as a Deserter, and suffering accordingly, and in case any Officer shall knowingly receive and entertain such Non Commis- sioned Officer or Soldier, or shall not, after his being discovered to be a Deserter, immediately confine him, and give Notice thereof to the Corps in which he last served. He, the said Officer, so offending shall, by a Court Martial, be cashiered. Article 4. Whatsoever Officer or Soldier shall be convicted of having advised or persuaded any other Officer or Soldier to desert Our Service, shall 586 V APPENDIX B. sufEer such Punislmieiit as shall be inflicted upon him by the sentence of a Court Martial. Section 7. qtjaeebls and sending challenges. Article 1. No Officer or Soldier shall use any reproachful or provoking Speeches or Gestures to another upon pain, if an Officer, of being put in Arrest, if a Soldier, imprisoned, and of asking Pardon of the Party offended in the Presence of the Commandiug Officer. Article 2. No Officer or Soldier shall presume to send a Challenge to any other Officer or Soldier, to fight a Duel, upon Pain, if a Commissioned Officer, of being cashiered, if a Non Commissioned Officer or Soldier, of suf- fering Corporal Punishment, at the Discretion of a Court Martial. Article 3. If any Commissioned or Non Commissioned Officer command- ing a Gaard, shall knowingly and willingly sufEer any Person whatsoever to go forth to fight a Duel, he shall be punished as a Challenger, and likewise all Seconds, Promoters, and Carriers of Challenges, in order to Duels, shall be deemed as Principals, and be punished accordingly. Article 4. All Officers of what Condition soever, have Power to Part and quell all Quarrels, Frays, and Disorders, tho' the Persons concerned, shall belong to another Eegiment, Troop, or Company, and either to order Officers into Arrest, or Non Commissioned Officers or Soldiers to Prison, 'till their proper superior Officers shall be acquainted therewith; and whoever shall refuse to obey such Officer (tho' of an inferior Rank) or shall draw his Sword upon him, shall be punished at the Discretion of a General Court Martial. Article 5. Whatsoever Officer or Soldier shall upbraid another for refus- ing a Challenge, shall, himself, be punished as a Challenger. And We hereby acquit and Discharge all Officers and Soldiers of any Disgrace or Opinion of Disadvantage, which might arise from their having refused to accept of Challenges, as they will only have acted in Obedience to Our Orders, and done their Duty as good Soldiers, who subject themselves to Discipline. Section 8. suttling. Article 1. No Suttler shall be permitted to sell any kind of Liquors or Victuals, or t« keep their Houses or Shops open for the Entertainment of Soldiers after Nine at Night, or before the Beating of the Reveilles, or upon Sundays, daring Divine Service or Sermon, on the Penalty of being dis- missed from all future Suttling. Article 2. All Officers, Soldiers, and Suttlers, shall have full Liberty to bring into any of Our Forts or Garrisons any Quantity or Species of Provi- THE BlilTISH ABTI0LB8 OF 1774. 587 sions Eatable or Drinkable, except where any Coatract or Contracts are or shall be entered into by Us, or by Our Order, for furnishing Such Provi- sions, and with respect only to the Species of Provisions so contracted for. Article 3. All Governors, Lieutenant Governors, and Officers Command- ing in Our Ports, Barracks, or Garrisons are hereby required to see that the Persons permitted to snttle, shall supply the Soldiers with good and whole- some Provisions at the Market Price, as they shall be answerable to Us for their N^eglect. Article 4. No Governors or Officers commanding in any of Our Garri- sons, Ports, or Barracks, shall, either themselves, exact exorbitant Prices for Houses or Stalls let out to Suttlers, or shall connive at the like Exactions in others, nor by their own Authority and for their Private Advantage, shall they lay any Duty or Imposition upon, or be interested in, the sale of such Victuals, Liquors, or" other Necessaries of Life whick are brought into the Garrison, Port, or Barracks, for the use of the Soldiers, on the Penalty of being discharged from Our Service. Section 9. quaetebs. Article 1. 'No Officer shall demand Billets for quartering more than his effective Men, nor shall he quarter any Wives, Children, Men or Maid Ser- vants in the Houses assigned for the quartering of Oflicers or Soldiers with- out the Consent of the Owners, nor shall he take money for the freeing of Landlords from the quartering of Officers or Soldiers; if a Commissioned Officer so offending, he shall be cashiered; if a ISTon Commissioned Officer, he shall be reduced to a Private Centinel, and suffer such Corporal 'Punish- ment as shall be inflicted upon him by the Sentence of a Court Martial. Article 2. Every Officer commanding a Kegiment, Troop, or Company or Party, whether in settled Quarters, or upon a March, shall take care that his own Quarters, as also the Quarters of every Officer and Soldier under his Command, be regularly cleared at the end of every week, according to the Rules specified by the Act of Parliament now in force; but in case any such Regiment, Troop, or Company, or Party be ordered to march before Money may be come to the Hands of the Commanding Officer aforesaid, he is hereby required to see that the Accounts with all Persons who shall have Money due to them for the quartering of Officers and Soldiers be exactly stated, specifying what sum is then justly due to him, as likewise the Regiment, Troop, or Company, to which the Officers and Soldiers so indebted to him belong, and is, by the first Opportunity, to remit Duplicates of the said Certificates to Our Paymaster General. Any Commanding Officer who shall refuse or neglect the making up of such Accounts, and certifying the same as is above directed, shall be cashiered. 588 APPENDIX B. Article 3. The Commanding Officer of every Eegiment, Troop, or Com- pany, or Detachment, shall, upon their first coming to any City, Town, or Village, where they are to remain in Quarters cause Public Proclamation to be made signifying that, if the Landlords or other Inhabitants suffer the Non Commissioned Officers or Soldiers to contract Debts beyond what their daily Subsistence will answer, that such Debts will not be discharged. He the said Commanding Officer shall, for refusing or neglecting so to do, be suspended for three Months, during which Time his whole Pay shall be applied to the discharging such Debts as shall have been contracted by the Non Commissioned Officers or Soldiers under his Command, beyond the amount of their daily Subsistence, if there be any overplus remaining it may be returned to him. Article 4. If after Public Proclamation be made, the Inhabitants shall notwithstanding, suffer the Non Commissioned Officers and Soldiers to con- tract Debts beyond what the Money issued or to be issued out for their daily Subsistence will answer, it will be at their own Peril, the Officers not being obliged to discharge the said Debts. Article 5. Every Officer commanding in Quarters, Garrisons, or on a March, shall keep good order, and to the utmost of his power redress all such abuses or Disorders which may be committed by any Officer or Soldier under his Command, if upon Complaint made to him of Officers or Soldiers beating or otherwise ill treating of their Landlords, or of extorting more from them than they are obliged to furnish by Law, of disturbing Pairs or ^Markets, or of committing any kind of Riots to the disquieting of Our People, he the said Commander who shall refuse or omit to see Justice done on the Offender or Offenders, and Eeparatio*i made to the Party or Parties injured, as far as Part of the Offender's Pay shall enable him or them, shall, upon the Proof thereof, be punished by a General Court Martial, as if he himself had committed the Crimes or Disorders complained of. Section" 10. carriages. The Commanding Officer of every Eegiment, Troop, or Company, or Detachment, which shall be ordered to march, is to apply to the proper Magistrates for the necessary Carriages, and is to pay for them as is directed by the Act of Parliament, taking care not himself to abuse, nor to suffer any Person under his command to beat or abuse the Wagoners, or other Persons attending such Carriages, nor to suffer more than thirty hundred "Weight to be loaded on any Wain or Waggon, so furnished, or in Proportion on Carts or Carrs, not to permit Soldiers (except such as are Sick or lame) or Women to ride upon the said Carriages. Whatsoever Officer shall offend herein, or in Case of Failure of Money, shall refuse to grant Certificates specifying the THE BRITISH ABTICLE8 OF 1774. 589 Sams due for the Use of such Carriages, and the name of the Eegiment, Troop, or Company in whose Service they were employed, shall be cashiered, or be otherwise punished according to the Degree of his Offence by a General Court Martial. Section- 11. of crimes pukishable by law. Article 1. Whenever any Officer or Soldier shall be accused of a Capital Crime, or of having used Violence, or committed any Offence against the Persoas or Property of Our Subjects, such as is punishable by the known Laws of the Land, the Commanding Officer, and Officers of every Regiment, Troop, or Party to which the Person, or Persons so accused shall belong, are hereby required, upon Application duly made by, or in behalf of the Party or Parties injured, to use his utmost Eadeavours to deliver over such accused Person or Persons to the Civil Magistrate: And likewise to be aiding and assisting to the Officers of Justice in apprehending and securing the Person or Persons so accused, in order to bring them to a Trial. If any Command- ing Officer or Officers shall willfully neglect or shall refuse, upon the Appli- cation aforesaid, to deliver over such accused Person or Persons to the Civil Magistrates, or to be aiding or assisting to the Officers of Justice, in appre- hending such Person or Persons, the Officer or Officers so offending shall be cashiered. Article 2. No Officer shall protect any Person from his Creditors on the Pretence of his being a Soldier, nor any Non Commissioned Officer or Soldier who does not actually do all Duties as such, and no farther than is allowed by the present Act of Parliament and according to the true Intent, and Meaning of the said Act; any Officer offending herein, being convicted thereof before a Court Martial, shall be cashiered. Section 12. OF BEDEESSINfi WEOIJ-QS. Article 1. If any Officer shall think himself to be wronged by his Colonel, or the Commanding Officer of the Eegiment, and shall upon due application made to him, be refused to be redressed, he may complain to the General commanding in Chief, of Our Forces, in order to obtain Justice, who is hereby required to examine into the *aid Complaint, and either by himself, or by Our Secretary at War, to make his report to Us thereupon, in order to receive Our further Directions. Article 2. If any inferior Officer or Soldier shall think himself wronged by his Captain or other Officer commanding the Troop, or Company, to which he belongs, he is to complain thereof to the Commanding Officer of 590 APPENDIX B. the Eegiment, who is hereby required to summon a Eegimental Court Martial, for the doing Justice to the Complaiuant, from which Eegimental Court Martial, either Party may, if he thinks himself still aggrieved, appeal to a General Court Martial: But if upon a second Hearing the appeal shall appear to be vexatious and groundless, the Person so appealing, shall be punished at the Discretion of the said General Court Martial. Section 13. of stoees, ammunition", etc. Article 1. Whatsoever Commissioned Officer, Store-keeper or Commis- sary, shall be convicted at a General Court Martial of having sold (without a proper Order for that purpose), embezzled, misapplied, or willfully, or through neglect, suffered any of Our Provisions, Forage, Arms, Cloathing, Ammunition, or other Military Stores to be spoiled or damaged, the said Officer, Store-keeper or Commissary so offending, shall at his own charge, make good the loss or Damage, and be dismissed from Our Service, and suffer such other Penalty as by the Act of Parliament is inflicted. Article 2. "Whatsoever Non Commissioned Officer or Soldier shall be convicted at a Eegimental Court Martial, of having sold, or designedly or through neglect, wasted the ammunition delivered out to him to be employed in Our Service, shall, if a Non Commissioned Officer, be reduced to a Private Centinel, and shall besides, suifer Corporal Punishment in the same manner as a Private Centinel so offending at the Discretion of a Eegimental Court Martial. Article 3. Every Non Commissioned Officer or Soldier who shall be con- victed at a Court Martial of having sold, lost or spoiled thro' Neglect, his Horse, Arms, Cloaths or Accoutrements, shall undergo such weekly Stoppages (not exceeding the half of his Pay) as a Court Mattial shall judge sufficient foi- repairing the Loss or Damage, and shall suffer Imprisonment, or such other Corporal Panishment as his Crime shall deserve. Article 4. Every Xon Commissioned Officer who shall be convicted at a General or Eegimental Court-Martial, of having embezzled, or misapplied any Money with which he may have been entrusted for the Payment of the Men under his Command, or for enlisting Men into Our Service, shall be reduced to serve in the Banks as a Private Soldier, be put under Stoppages until the Money be made good, and suffer such Corporal Punishment (not extending to Life or Limb) a& the Court Martial shall think fit. Article 5. Every Captain of a Troop or Company is charged with the Arms, Accoutrements, Ammunition, Cloathing or other Warlike Stores belonging to the Troop, or Company under his Command, which he is to be accountable for to his Colonel, in Case of their being lost, spoiled or damaged, not by unavoidable Accidents, or on actual Service. THE BRUISE ARTI0LB8 OF 1774. ^^1 Section 14. of duties in quarters, in garrison, or in the field. Article 1. All Non Commissioned OflQcers and Soldiers who shall be found One Mile from the Camp, without Leave in "Writing from their Com- manding Officer, shall suffer such Punishment as shall be inflicted upon them by the Sentence of a Court Martial. Article 2. No Ofl&cer or Soldier shall lye out of his Quarters, Garrison, or Camp, without leave from his superior Officer, upon penalty of being punished according to the Nature of his Offence by the Sentence of a Oourt- Martial. Article 3. Every Non Commissioned Officer and Soldier shall retire to his Quarters or Tent at the Beating of the Eetreat: In default of which he shall be punished according to the Nature of his Offence, by the Command- ing Officer. Article 4. No Officer, Non Comrnissioned Officer, or Soldier shall fail of repairing at the Time fixed to the Place of Parade of Exercise, or other Eendezvous appointed by the Commanding Officer, if not prevented by Sick- ness, or some other evident Necessity, or shall go from the said Place of Eendezvous, or from his Guard, without Leave from his Commanding Officer, before he shall be regularly dismissed or relieved, on the Penalty of being punished according to the Nature of his Offence by the Sentence of a Court Martial. Article 5. "Whatsoever Commissioned Officer shall be found Drunk on his Guard, Party, or other Duty under Arms, shall be cashiered for it; any Non Commissioned Officer or Soldier so offending shall suffer such Corporal Punishment as shall be inflicted by the Sentence of a Court Martial. Article 6. Whatever Centinel shall be found sleeping upon his Post, or shall leave it before he shall be regularly relieved, shall suffer Death, or such other Punishment as shall be inflicted by the Sentence of a Court Martial. Article 7. No Soldier belonging to any of Our Troops, or Eegiments of Horse, or Foot Guards, or to any other Eegiment of Horse, Foot, or Dragoons in Our Service, shall hire another to do his Duty for him, or be excused from Duty, but in Case of Sickness, Disability or Leave of Absence, and every such Soldier found guilty of hiring his Duty, as also the Party so hired to do another's Duty, shall be punished at the next Eegimental Court Martial. Article 8. And every Non Commissioned Officer conniving at such hiring of Duty as aforesaid shall be reduced for it; and every Commissioned Officer knowing and allowing of such ill practices in Our Service, shall be punished by the Judgment of a General Court Martial. Article 9. Any Person belonging to Our Forces employed in any of Our Dominions beyond the Seas, or in Foreign Parts, who, by discharging of Fire 593 APPENDIX B: Arms, drawing of Swords, beating of Drums, or by any otber means what- ever, shall occasion false Alarms in Camp, Garrison, or Quarters, shall suffer Death, or such other Punishment as shall be ordered by the Sentence of a. General Court Martial. And whosoever shall be found guilty of the said offence in Great Britain or Ireland, Jersey, Guernsey, Alderney, Sark, or Man, shall be punished at the Discretion of a General Court Martial. Article 10. Any Officer or Soldier who shall, without urgent Necessity, or without Leave of his superior Officer, quit his Platoon, or Division, shall be punished according to the Nature of his Offence by the Sentence of a Court Martial. Article 11. No Officer or Soldier shall do Violence to any Person who brings Provisions or other Necessaries to the Camp, Garrison, or Quarters of Our Forces, employed in Foreign Parts on Pain of Death. Article 12. Whatsoever Officer or Soldier shall misbehave himself before the enemy, or shamefully abandon any Post committed to his Charge, or shall speak "Words inducing others to do the like shall suffer Death. Article 13. "Whatsoever Officer or Soldier shall misbeliave himself before the Enemy, and run away, or shamefully abandon-any Fort, Post, or Guard, which he or they shall be commanded to defend, or speak "Words inducing others to do the like, or who, after "Victory, shall quit his Commanding Officer or Post to plunder and pillage, every such Offender being duly con- victed thereof, shall be reputed a Disobeyer of Military Orders, and shall suffer Death, or other such Punishment as by a General Court Martial shall be inflicted on him. Article 14. Any Person belonging to Our Forces employed in Foreign Parts who shall cast away his Arms and Ammunition shall suffer Death, or other such Punishment as shall be ordered by the Sentence of a General Court Martial. And "Whosoever shall be found guilty of the said Offence in Great Britain, Ireland, Jersey, Guernsey, Alderney, Sark, or Man, shall be punished at the Discretion of a General Court Martial. Article 15. Any Person belonging to Our Forces employed in Foreign Parts who shall make known the "Watch-'Word to any Person who is not entitled to receive it, according to the Rules and Discipline of War, or shall presume to give a Parole or Watch-Word different from what he received shall suffer Death, or such other Punishment as shall be ordered by the Sentence of a General Court Martial. And Whosoever shall be found guilty of the said offeuce in Great Britain, Ireland, Jersey, Guernsey, Alderney, Sark, or Man, shall be punished, at the Discretion of a General Court Martial. Article 16. All Officers and Soldiers are to behave themselves orderly in Quarters, and on their March; and whosoever shall commit any Waste or THE BRITISH ARTICLES OF 1774. 593 Spoil either in "Walks of Trees, Parks, Warrens, Fish Ponds, Houses or Gardens, Corn Fields, Inclosures or Meadows, or shall maliciously destroy- any Property whatsoever belonging to any of Our Subjects, unless by Order of the then Commander in Chief of Our Forces, to annoy Rebels or other Enemies in Arms against Us, he or they that shall be found guilty of offending herein shall (besides such Penalties as they are liable to by law) be punished according to the Nature and Degree of the Offence, by the Judg- ment of a Eegimental or General Court Martial. Article 17. Whatsoever of Our Forces employed in Foreign Parts shall force a Safe-Guard shall suffer Death. Article 18. Whosoever shall relieve the Enemy with Money, Victuals, or Ammunition, or shall knowingly harbour or protect an Enemy shall suffer Death, or such other Punishment as by a Court Martial shall be inflicted. Article 19. Whosoever shall be convicted of holding Correspondence with, or giving Intelligence to the Enemy, either directly or indirectly shall suffer Death, or such other Punishment as by a Court Martial shall be inflicted. Article 20. All Public Stores taken in the Enemies' Camp, Towns, Forts, or Magazines, whether of Artillery, Ammunition, Cloathing, Forage, or Provisions shall be secured for Our Service, for the Neglect of which Our Commanders in Chief are to be answerable. Article 21. If any Officer or Soldier shall leave his Post or Colours to go in search of Plunder, he shall upon being convicted thereof, before a General Court Martial, suffer Death, or such other Punishment as by a Court Mar- tial shall be inflicted. Article 22. If any Governor or Commandant of any Garrison, Fortress or Post, shall be compelled by the Officers or Soldiers under his Command, to give up to the Enemy, or to abandon it, the Commission Officers, Non Commission Officers, or Soldiers who shall be convicted of having so offended, shall suffer Death, or such other Panishment as may be inflicted upon them by the sentence of a Court Martial. Article 23. All Suttlers and Eetainers to a Camp, and all Persons what- soever, serving with Our Armies in the Field, though no inlisted Soldiers, are to be subject to Orders according to the Bales and Discipline of War. Article 24. Officers having Brevetts or Commissions of a prior Date to those of the Regiment in which they now serve, may take place in Courts Martial, and on Detachments, when composed of different Corps, according to the Rank given them ia their Brevetts or Dates of their former Commis- sions. But in the Regiment, Troop, or Company to which such Brevett Officers, and those who have Commissions of a prior Date, do belong, they shall do Duty and take Rank both on Courts Martial and on Detachments, which shall be composed only of their own Corps according to the Commis- sions by which they are mustered in the said Corps. 594 APPENDIX B. Article 25. If upon Marches, Guards, or in Quarters, any of Our Troops of Horse Guards, Grenadier Guards, or Eegiment of Horse Guards, shall happen to join or to do Duty together, the eldest OfiBcer by Commission there on Duty, or in Quarters, shall command the whole, and give out Orders for what is needful to Our Service, Eegard being always had to the several Eanks of those Corps, and the Posts they usually occupy. Article 26. And in like manner also if any Eegiments, Troops, or Detachments of Our Horse or Foot Gaards, shall happen to march with, or be encamped or quartered with any Bodies or Detachments of Our other Troops, the eldest Officer, withont respect to Corps, shall take upon him the Command of the whole, and give the necessary Orders to Our Service. Article 27. When Our Eegiment of Foot Guards, or Detachments from Our said Eegiments, shall do Duty together, unmixed with other Corps,, they shall be considered as one Corps, and the Officers shall take Eank, and do Duty according to the Commissions by which they are mustered. Section' 15. administeation of justice. Article 1. A General Court Martial in Our Kingdoms of Great Britain OP Ireland shall not consist of less than thirteen Commissioned Officers, and the President of such Court Martial shall not be the Commander in Chief, or Governor of the Garrison where the Offender shall be tryed, nor be under the Degree of a Field Officer. Article 2. A General Court Martial held in Our Garrison of Gibralter, Island of Minorica, or in any other place beyond the Seas (except within the Garrisons of Goree and Senegal, or upon any Detachments made there- from) shall not consist of less than thirteen Commissioned Officers: But in the said Garrisons of Goree and Senegal, or upon any Detachments made therefrom a General Court Martial may consist of any Number of Commis- sioned Officers not less than five, and the President shall not be under the Degree of a Field Officer, unless where a Field Officer cannot be had, nor shall in any Case whatever be the Commander in Chief or Governor of the Garrison where the Offender shall be tried, nor under the Degree of a Captain. Article 3. Whereas these Our Eules and Articles are to be observed by, and do in all Eespects regard Our Troops and Eegiments of Horse and Foot Guards, as well as Our other Forces, and that several Disputes have arisen, and may arise, between the Officers of Our Horse and Foot Guards, in rela- tion to their holding of Courts Martial, and also among the Officers of Our Troops of Horse Guards, Grenadier Guards, and Eegiments of Horse Guards, on that and other Points of Duty: We do therefore herein declare it to be Our Will and Pleasare, that, when any Officer or Soldier belonging THE BBITISH ARTICLES OF mjf. 595 to Our said Troops of Horse Guards, Grenadier Guards, or Eegiment of Horse Guards, shall happen to be brought before a General Court Martial for Differences arising purely among themselves, or for Crimes relating to Discipline, or Breach of Orders, such Courts Martial shall be composed of Officers serving in any or all of those Corps of Horse Guards (as they may then happen to lie for their being most conveniently assembled) where the Officers are to take. Post according to the Dates and Degrees of Eank granted them in their respective Commissions, without regard to the Seniority of Corps, or other formerly pretended Privileges. Article 4. In like manner also the Officers of Our Three Regiments of Poot Guards, when appointed to hold Courts Martial for Differences, or Crimes as aforesaid, shall, of themselves, compose Courts Martial, and take Rank according to their Commissions: But for all Disputes or Differences which may happen between Officers or Soldiers belonging to Our said Corps of Horse Guards, and other Officers and Soldiers belonging to Our Regi- ments of Foot Guards, or between any OflScers or Soldiers belonging to either of those Corps of Horse or Poot Guards, and Officers and Soldiers of Our other Troops, the Courts Martial to be appointed in such Cases shall be equally composed of Officers belonging to the Corps in which the Parties complaining and complained of, do then serve, and the President to be ordered by Turns, beginning first by an Officer of .one of Our Troops of Horse Guards, and so on in course out of the other Corps. Article 5. The Members both of General and Regimental Courts Martial shall, when belonging to different Corps take the same Rank which they hold in the Army; but when Courts Martial shall be composed of Officers of one Corps, they shall take their Ranks according to the Dates of the Com- missions by which they are mustered in the said Corps. Article 6. The Judge Advocate General, or some Person deputed by him, shall prosecute in His Majesty's Name; and in all Trials of Offenders by General Courts Martial administer to each Member the following Oaths. " You shall well and truly try and determine according to your Evidence, the Matter now before You, between Our Sovereign Lord the King's Majesty, and the Prisoner to be tried." I, A. B., do swear that I will duly administer Justice according to the Rules and Articles for the better Government of His Majesty's Forces, and according to an Act of Parliament now in Force for the Punishment of Mutiny and Desertion, and other Crimes therein mentioned, without Par- tiality, Favour or affection; and if any Doubt shall arise which is not explained by the said Articles or Act of Parliament, according to my Con- science, the best of my Understanding, and the Custom of War in the like Cases. And I do further swear that I will not divulge the Sentence of the Court, until it shall be approved of by His Majesty, or by some Person duly authorized by him. Neither will I, upon any Account at any Time what> 596 APPENDIX B. soever, disclose or discover the Vote or Opinion, of any particular Member of the Court Martial unless required to give Evidence thereof as a witness by a Court of Justice in a due course of Law. And as soon as the said Oath shall have been administered to the respec- tive Members, the President of the Court shall administer to the Judge Advocate, or Person officiating as such, an Oath in the following Words. I, A. B., do swear that I will not upon any Account, at any Time what- soever, disclose or discover the Vote or Opinion of any Particular Member of the Court Martial, unless required to give Evidence thereof as a Witness by a Court of Justice in a due Course of Law. Article 7. All the Members of a Court Martial are to behave with Decency, and in the giving of their Votes, are to begin with the Youngest. Article 8. All Persons who give Evidence before a General Court Martial are to be examined upon Oath, and no Sentence of Death shall be given against any Offender by any General Court Martial, except in the Garrisons of Goree and Senegal, or upon any Detachments made therefrom, unless Nine Officers present shall concnr therein, nor shall such Sentence be given in any Case where a Court Martial shall consist of more Officers than thirteen, nor within the Garrison of Goree and Senegal, or upon any De- tachment made therefrom when a Court Martial shall consist of a lesser Number of Officers without the concurrence of two thirds of the Officers present. Article 9. No Field Officer shall be tried by any Person under the Degree of a Captain, nor shall any Proceedings or Trials be carried on, excepting between the Hours of Eight in the Morning and Three in the Afternoon, except in Cases which require an immediate Example. Article 10. No Sentence of a General Court Martial shall be put in Execution till after a Report shall be made of the whole Proceedings to Us, or to Our Commander in Chief, or some other Person duly authorized by TJs, under Our Sign Manual to confirm the same ; and Our or his Directions shall be signified thereupon, excepting in Ireland where the Report is to be made to the Lord Lieutenant, and to Our Chief Governor or Governors of that Kingdom, and his or their Directions are to be received thereupon. Article 11. For the more equitable Decision of Disputes which may arise between Officers and Soldiers belonging to different Corps, whether they be of Our Troops or Regiment of Horse Guards, Our Three Regiments of Foot Guards, or Our other Regiments of Horse, and Foot. We direct that the Courts Martial shall be equally composed of Officers belonging to the Corps which the Parties in Question do then serve, and that the President shall be taken in Turns beginning with that Corps which shall be eldest in Rank. Article 12. The Commissioned Officers of every Regiment may, by the Appointment of their Colonel or Commanding Officer, hold Regimental TEE BRITISH ABTICLES OF 1774. ^^"^ Courts Martial for the enquiring into such Disputes or criminal Matters as may come before them, and for the inflicting Corporal Punishments for small Offences, and shall give Jiidgment by the Majority of Voices; but no Sentence shall be executed till the Commanding OfiBcer (not being a Member of the Court Martial) or the Goyernor of the Garrison shall have confirmed the same. Article 13. No Kegimental Court Martial shall consist of less than Five Officers, excepting in Cases where the Number cannot be conveniently assembled, when three may be sufficient, who are likewise to determine upon the Sentence by the Majority of Voices, which Sentence is to be confirmed by the Commanding Officer not being a Member of the Court Martial. Article 14. Every Officer commanding in any of Our Forts, Castles or Barracks, or elsewhere, where the Corps under his Command consists of Detachments from different Regiments, or of Independent Companies, may assemble Courts Martial for the Trial of Offenders in the same Maaner as if they were Eegimental, whose Sentence is not to be executed till it shall be confirmed by the said Commanding Officer. Article 15. No Commissioned Officer shall be cashiered or dismissed from Our Service excepting by an Order from Us, or by the Sentence of a General Court Martial approved by Us, or by some Person having Authority from Us, under Our Sign Manual; but Non Commissioned Officers may be discharged as Private Soldiers. And by the Order of the Colonel of the Eegiment, or by the Sentence of a Eegimental Court Martial, be reduced to Private Centinels. Article 16. No Person whatsoever shall use menacing Words, Signs, or Gestures in the Presence of a Court Martial, then sitting, or sha.ll cause any Disorder or Eiot, so as to disturb their Proceedings on the Penalty of being Punished at the Discretion of the said Court Martial. Article 17. To the End that Offenders may be brought to Justice, We hereby direct that whenever any Officer or Soldier shall commit a Crime deserving Punishment, he shall, by his Commanding Officer, if an Officer, be put in Arrest, if a Non Commissioned Officer or Soldier, be imprisoned till he shall be either tried by a Court Martial or shall be lawfully discharged by a proper Authority. Article 18. No OfiBcer or Soldier who shall be put in Arrest or Imprison- ment shall continue in his Confinement more than Eight Days, or till such time as a Court Martial can be conveniently assembled. Article 19. No Officer commanding a Guard, or Provost Marshal, shall refuse to receive or keep any Prisoner committed to his Charge by any Officer belonging to Our Forces, which Officer shall at the same Time, deliver an account in W/iting signed by himself of the Crime with which the said Prisoner is charged. 0»» APPENDIX B. Article 20. No Officer commanding a Guard, or Provost Marshal, shall presume to release any Prisoner committed to his Charge, without proper authority for so doing, nor shall he suffer any Prisoner to escape on the Penalty of being punished for it by the Sentence of a Court Martial. Article 21. Every Officer or Provost Marshal to whose Charge Prisoners shall be committed, is liereby required within Twenty-four hours after such Commitment, or as soon as he shall be relieved from his Guard, to give in Writing to the Colonel of the Eegiment to whom the Prisoner belongs (where the Prisoner is confined upon the Guard belonging to the said Regi- ment, and that his Offence only relates to the Neglect of Duty in his own Corps) or to the Commander in Chief, their Names, their Crimes, and the Names of the Officers who committed them, on the Penalty of his being punished for his Disobedience or Neglect at the Discretion of a Court Martial. Article 22. And if any Officer under Arrest shall leave his Confinement before he is set at Liberty by the Officer who confined him, or by a superior Power, he shall be cashiered for it. Article 23. Whatsoever Commissioned Officer- shall be convicted before a General Court Martial of behaving in a scandalous infamous Manner, such as is unbecoming the Character of an Officer and a Gentleman shall be discharged from Our Service. Section 16. entry of commissions. All Commissions granted by Us, or by any of Our Generals having Authority from Us, shall be entered in the Books of Our Secretary at War, and the Commissary General, otherwise they will not be allowed of at the Musters. Section 17. effects of the dead. Article 1. When any Commissioned Officer shall happen to die or be killed in Our Service, the Major of the Regiment, or the Officer doing the Major's Duty in his Absence, shall immediately secure all his Effects, or Equipage then in Camp or Quarters, and shall before the next Regimental Court Martial make an Inventory thereof, and forthwith transmit the same to the Office of Our Secretary at War, to the End that his Executors may after Payment of his Debts and Quarters, and Interment, receive the Over- plus, if any be, to his or their Use. THE BRITISH ARTICLES OF 1774. 599 Article 2. When any Non Commissioned OflBcer or Private Soldier shall happen to die, or be killed in Our Service, the then Commanding Officer of the Troop or Company shall, in the Presence of two other Commissioned Officers take an Account of whatever Effects he dies possessed of, above his Eegimental Cloathing, Arms, and Accoutrements, and transmit the same to the Office of Our Secretary at War; which said Effects are to be accounted for and paid to the Representative of such deceased Non Commissioned Officer or Soldier. And in Case any of the Officers so authorized to take care of the Effects of Dead Officers and Soldiers, should, before they have accounted to their Representatives for the same, have occasion to leave the Regiment by preferment, or other wise, they shall, before they be permitted to quit the same, deposit in the hands of the Commanding Officer, or of the Agent of the Regiment, all the Effects of such deceased Non Commissioned Officers and Soldiers, in order that the same may be secured for and paid to their respective Representatives. Section 18. artillery. Article 1. All Officers, Conductors, Gunners, Matrosses, Drivers, or any other Persons whatsoever receiving Pay or Hire in the Service of Our Artillery, shall be governed by the aforesaid Rules, and Articles, and shall be subject to be tried by Courts Martial in like Manner with the Officers and Soldiers of Our other Troops. Article 2. For Differences arising among themselves or in Matters relat- ing solely to their Own Corps, the Courts Martial may be composed of their own Officers; but where a Number sufficient of such Officers cannot be assembled, or in Matters wherein other Corps are interested, the Officers. of Artillery shall sit in Courts Martial with the Officers of Our other Corps, taking their Rank according to the Dates of their respective Commissions and no otherwise. Sectiok 19. AMERICAN troops. Article 1. The Officers and Soldiers of any Troops which are or shall be raised in America, being mustered, and in Pay, s^hall, at all Times, and in all Places, when joined and acting in conjunction with Our British Forces, be governed by these Rules and Articles of War, and shall be subject to be tried by Courts Martial in like Manner with the Officers and Soldiers of Our British Troops. Article 2. Whereas notwithstanding the Regulations which We were pleased to make for settling the Rank of Provincial * * General and Field €00 APPENDIX B. OflQcers in North America, Difficulties have arisen with regard to the Rank of the said Officers when acting in conjunction with Our Eegular Forces. And "We being Willing to give due Encouragement to Officers serving in Our Provincial Troops; It is Our Will and Pleasure, that, for the future, all General Officers and Colonels serving by Commission from any of the Crovernors, Lieutenant or Deputy Governors, or President of the Council for the Time being of Our Provinces and Colonies in North America, shall, on all Detachments, Courts Martial, or other Duty, wherein they may be employed in Conjunction with Our Regular Forces, take Rank next after all Colonels serving by Commissions signed by Us, though the Commissions of such Provincial Generals and Colonels should be of elder Date, and in like Manner that Lieutenant Colonels, Majors, Captains, and other inferior Officers serving by Commission from the Governors, Lieutenant or Deputy Governors or Presidents of the Council for the time being of Our said Provinces and Colonies in North America, shall, on all Detachments, Courts- Martial or other Duty wherein they may be employed in Conjunction with Our Regular Forces, have Rank next after all Officers of the like Rank, serving by Commissions signed by Us, or by Our General Commanding in Chief in North America, though the Commissions of such Lieutenant Colonels, Majors, Captains, and other inferior Officers should be of elder Date to those of the like Rank signed by Us, or by Our said General. Sectiow 30. relating to the foregoing articles. Article 1. The foregoing Articles are to be read and published once in every two Months at the Head of every Regiment, Troop, or Company mustered or to be mustered in Our Service, and are to be duly observed and exactly obeyed by all Officers and Soldiers who are or shall be in Our Service (excepting in what relates to the Payment of Soldiers Quarters, and to Car- riages, which is in Our Kingdom of Ireland to be regulated by the Lord Lieutenant or Chief Governor or Governors thereof) and in Our Islands, Provinces and Garrisons beyond the Seas by the respective Governors of the same according as the different Circumstances of the said Islands, Provinces or Garrisons may require. Article 2. Notwithstanding its being directed in the eleventh Section of these Our Rules and Articles, that every Commanding Officer is required to deliver up to the Civil Magistrate all such Persons under his Command who shall be accused of any Crimes which are punishable by the known Laws of the Land ; yet in Our Garrison of Gibralter, and Island of Minorca, where Our Forces now are, or in any other Place beyond the Seas to which any of Our Troops are or may be hereafter commanded, and where there is no TEE BRITISH ARTICLES OF 1774. 601 Porm of Our Civil Judicatare in Force, the Generals, or Governors, or Commanders respectively, are to appoint General Courts-Martial to be held, who are to try all Persons guilty of wilful Murder, Theft, Robbery, Eapes, Coining or Clipping the Coin of Great Britain, or of any Foreign Coin cur- rent in the Country or garrison, -and all other Capital Crimes, or other Offences, and punish Offenders with Death, or otherwise as the N'ature of their Crimes shall deserve. Article 3. All Crimes not Capital and all Disorders and N'eglects which Officers and Soldiers may be guilty of to the Prejudice of good Order and Military Discipline, though not mentioned in the above Articles of War are to be taken Cognizance of by a General or Regimental Court Martial, according to the Nature and Degree of the Offence, and be punished at their Discretion. (Initd.) G. R. APPENDIX C. AMERICAN ARTICLES OF me.' Resolved, That from aud after the publication of the following Articles, in the respective armies of the United States, the Eules and Articles by which the said armies have heretofore been governed shall be, and they are hereby, repealed: Section I. Article 1. That every oificer who shall be retained in the army of the United States, shall, at the time of his acceptance of his commission, sub- scribe these rules and regulations. Article 2. It is earnestly recommended to all oflBcers and soldiers dili- gently to attend divine service; and all officers and soldiers who shall behave indecently, or irreverently, at any place of divine worship, shall, if commis- sioned officers, be brought before a general court-martial, there to be pub- licly and severely reprimanded by the president; if non-commissioned officers or soldiers, every person so offending shall, for his first offence, forfeit |th of a dollar, to be deducted out of his next pay; for the second offence, he shall not only forfeit a like sum, but be confined for twenty-four hours; and, for every like offence, shall suffer and pay in like manner; which money, so forfeited, shall be applied to the use of the sick soldiers of the troop or com- pany to which the offender belongs. Article 3. Whatsoever non-commissioned officer or soldier shall use any prophane oath or execration, shall incur the penalties expressed in the fore- going article ; and if a commissioned officer be thus guilty of prophane curs- ing or swearing, he shall forfeit and pay, for each and every such offence, two-thirds of a dollar. Article 4. Every chaplain who is commissioned to a regiment, company, troop, or garrison, and shall absent himself from the said regiment, com- ' Enacted by Resolution of Congress, September 30, 1876. For a hislory of these Articles see I he chapter entitled Thb Articlbs of War. This set replaced the Articles enacted by Resolution of Congress, June 30, 1775, and the additional Articles similarly enacted on November 7, 1775. They were amended by the Resolution of Congress of May 31 , 1786, and were replaced by the Articles of War adopted by Congress on April 10, 1806. 602 AMMSIGAA ARTICLES OF 1776. 603 pany, troop, or garrison, (exceptiug in case of sickness or leave of absence,) shall be brought to a court-martial, and be fined not exceeding one month's pay, besides the loss of his pay during his absence, or be discharged, as the said court-martial shall judge most proper. Section II. Article 1. Whatsoever oflBcer or soldier shall presume to use traitorous or disrespectful words against the authority of the United States in Congress assembled, or the legislature of any of the United States in which he may be quartered, if a commissioned officer, he shall be cashiered; if a non-commis- sioned officer or soldier, he shall suffer such punishment as shall be inflicted upon him by the sentence of a court-martial. Article 2. Any officer or soldier who shall behave himself with contempt or disrespect towards the general, or other commander-in-chief of the forces of the United States, or shall speak words tending to his hurt or dishonor, shall be punished according to the nature of his offence, by the judgment of a court-martial. Article 3. Any officer or soldier who shall begin, excite, cause or join, in afiy mutiny or sedition, in the troop, company, or regiment to which he belongs, or in any other troop or company in the service of the United States, or in any part, post, detachment or guard, on any pretence what- soever, shall suffer death, or such other punishment as by a court-martial shall be inflicted. Article 4. Any officer, non-commissioned officer, or soldier, who, being present at any mutiny or sedition, does not use his utmost endeavor to sup- press the same, or coming to the knowledge of any intended mutiny, does not, without delay, give information thereof to his commanding officer, shall be punished by a court-martial with death, or otherwise, according to the nature of the offence. Article 5. Any officer or soldier who shall strike his superior officer, or draw, or shall lift up any weapon, or offer any violence against him, being in the execution of his office, on any pretence whatsoever, or shall disobey any lawful command of his superior officer, shall suffer death, or such other punishment as shall, according to the nature of his offence, be inflicted upon him by the sentence of a court-martial. Section III. Article 1. Every non-commissioned officer and soldier, who shall inlist himself in the service of the United States, shall at the time of his so inlist- ing, or within six days afterwards, have the articles for the government of the forces of the United States read to him, and shall, by the officer who ^^* APPENDIX C. inlisted him, or by the commanding officer of the troop or company into which he was inlisted, be taken before the next justice of the peace, or chief magistrate of any city or town-corporate, not being an officer of the army, or, where recourse cannot be liad to the civil magistrate, before the judge advocate, and, in his presence, shall take the following oath, or affirmation, if conscientiously scrupulous about taking an oath : I swear, or affirm, (as the case may be,) to be true to the United States of America, and to serve them honestly and faithfully against all their enemies or opposers whatsoever; and to observe and obey the orders of the Con- tinental Congress, and the orders of the generals and officers set over me by them. Which justice or magistrate is to give the officer a certificate, saying that the man inlisted did take the said oath or affirmation. Article 2. After a non-commissioned officer or soldier shall have been duly inlisted and sworn, he shall not be dismissed the service without a dis- charge in writing; and no discharge, granted to him, shall be allowed of as sufficient, which is not signed by a field officer of the regiment into which he was inlisted, or commanding officer, where no field officer of the regiment is in the same state. Sectigst IV. Article 1. Every officer commanding a regiment, troop, or company, shall, upon the" notice given to him by the commissary of musters, or from one of his deputies, assemble the regiment, troop, or company, under his command, in the next convenient place for their being mustered. Article 2. Every colonel or other field officer commanding the regiment, troop, or company, and actually residing with it, may give furloughs to non- commissioned officers and soldiers, in such numbers, and for so long a time, as he shall judge to be most consistent with the good of the service; but, no non-commissioned officer or soldier shall, by leave of his captain, or inferior officer, commanding the troop or company (his field officer not being pres- ent) be absent above twenty days in six months, nor shall more than two private men be absent at the same time from their troop or company, except- ing some extraordinary occasion shall require it, of which occasion the field officer, present with, and commanding the regiment, is to be the judge. Article 3. At every muster, the commanding officer of each regiment, troop, or company, there present, shall give to the commissary, certificates signed by himself, signifying how long such officers, who shall not appear at the said muster, have been absent, and the reason of their absence; in like manner, the commanding officer of every troop or company shall give cer- tificates, signifying the reasons of the absence of the non-commissioned officers and private soldiers; which reasons, and time of absence, shall be AMERICAN ARTIOLm OP 1776. 605 inserted in the muster-rolls, opposite to the names of the respective absent officers and soldiers : The said certificates shall, together with the muster- rolls, be remitted by the commissary to the Congress, as speedily as the dis- tance of place will admit. Article 4. Every officer who shall be convicted before a general court- martial of having signed a false certificate, relating to the absence of either officer or private soldiei-, shall be cashiered. Article 5. Every officer who shall knowingly make a false muster of man or horse, and every officer or commissary who shall willingly sign, direct, or allow the signing of the muster-rolls, wherein such false muster is contained, shall, upon proof made thereof by two witnesses before a general court- martial, be cashiered, and shall be thereby utterly disabled to have or hold any office or employment in the service of the United States. Article 6. Any commissary who shall be convicted of having taken money, or any other thing, by way of gratification, on the mustering of any regiment, troop, or company, or on the signing the muster-rolls, shall be displaced from his office, and shall be thereby utterly disabled to have or hold any office or employment under the United States. Article 7. Any officer who shall presume to muster any person as a sol- dier, who is, at other times, accustomed to wear a livery, or who does not actually do his duty as a soldier, shall be deemed guilty of having made a false muster, and shall suffer accordingly. Sectioit V. Article 1. Every officer who shall knowingly make a false return to the Congress, or any committee thereof, to the commander in chief of the forces of the United States, or to any his superior officer authorized to call for such returns, of the state of the- regiment, troop, or company, or garrison, under his command, or of arms, ammunition, clothing, or other stores thereunto belonging, shall, by a court-martial, be cashiered. Article 2. The commanding officer of every regiment, troop, or inde- pendent company, or garrison of the United States, shall, in the beginning of every month, remit to the commander in chief of the American forces, and to the Congress, an exact return of the state of the regiment, ti'oop, in- dependent company, or garrison under his command, specifyin'j; the names of the officers not then residing at their posts, and the reason for, and time of, their absence: Whoever shall be convicted of having, through neglect or design, omitted the sending such returns, shall be punished according to the nature of his crime, by the judgment of a general court-martial. 606 APPENDIX G. Section VI. Article 1. All officers and soldiers, who having received pay, or having been duly inlisted in the service of the United States, shall be convicted of having deserted the same, shall suffer death, or such other punishment as by a court-martial shall be inflicted. Article 2. Any non-commissioned officer or soldier, who shall, without leave from his commanding officer, absent himself from his troop or com- pany, or from any detachment with which he shall be commanded, shall, upon being convicted thereof, be punished, according to the nature of his offence, at the discretion of a court-martial. Article 3. Xo non-commissioned officer or soldier shall inlist himself in any other regiment, troop or company, without a regular discharge from the regiment, troop or company, in whicli he last served, on the penalty of being reputed' a deserter, and suffering accordingly: And in case any officer shall, knowingly, receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to be a deserter, immediately confine him, and give notice thereof to the corps in which he last served, he, the said officer so offending, shall, by a court-martial, be cashiered. ArUcle 4. Whatsoever officer or soldier shall be convicted of having ad- vised or })er3uaded any other officer or soldier to desert the service of the United States, shall suffer such punishment as shall be inflicted upon him by the sentence of a court-martial. Section VII. Article 1. No officer or soldier shall use any reproachful or provoking speeches or gestures to another, upon pain, if an officer, of being put in arrest; if a soldier, imprisoned, and of asking pardon of the party offended, in the presence of his commanding officer. Article 2. No officer or soldier shall presume to send a challenge to any other officer or soldier, to fight a duel, upon pain, if a commissioned officer, of being cashiered, if a non-commissioned officer or soldier, of suffering cor- poreal punishment, at the discretion of a court-martial. Article 3. If any commissioned or non-commissioned officer commanding a guard, shall, knowingly and willingly, suffer any person whatsoever to go forth to fight a duel, he shall be punished as a challenger: And likewise all seconds, promoters, and carriers of challenges, in order to duels, shall be deemed as principals, and be punished accordingly. Article 4. All officers, of what condition soever, have power to part and quell all'quarrels, frays and disorders, though the persons concerned should belong to another regiment, troop or company ; and either to order officers into arrest, or non-commissioned officers or soldiers to prison, till their proper AMEBIOAN ABTIOim OF 1776. 607 superior ofBcers shalt be acquainted therewith; and whosoever shall refuse to obey such officer (though of an inferior rank) or shall draw his sword upon him, shall be punished at the discretion of a general court-martial. Article 5. Whatsoever* officer or soldier shall upbraid another for refus- ing a challenge, shall himself be punished as a challenger; and all officers and soldiers are hereby discharged of any disgrace, or opinion of disadvan- tage, which might arise from their having refused to accept of challenges, as they will only have acted in obedience to the orders of Congress, and done their duty as good soldiers, who subject themselves to discipline. Section VIII. Article 1. No suttler shall be permitted to sell any kind of liquors or victuals, or to keep their houses or shops open, for the entertainment of soldiers, after nine at night, or before the beating of the reveilles, or upon Sundays, during the divine service, or sermon, on the penalty of being dis- missed from all future suttling. Article 2. All officers, soldiers and suttlers, shall have full liberty to bring into any of the forts or garrisons of the United American States, any quan- tity or species of provisions, eatable or drinkable, except where any contract or contracts are, or shall be entered into by Congress, or by their order, for furnishing such provisions, and with respect only to the species of provis- ions so contracted for. ' Article 3. All officers, commanding in the forts, barracks, or garrisons of the United States, are hereby required to see, that the persons permitted to suttle, shall supply the soldiers with good and wholesome provisions at the market price, as they shall be answerable for their neglect. Article 4. No officers, commanding in any of the garrisons, forts, or barracks of the United States, shall either themselves exact exorbitant prices for houses or stalls let out to suttlers, or shall connive at the like ■exactions in others; nor, by their own authority and for their private advan- tage, shall they lay any duty or imposition upon, or be interested in the sale of such victuals, liquors or other necessaries of life, which are brought into the garrison, fort, or barracks, for the use of the soldiers, on the penalty of lieing discharged from the service. Section IX. Article 1. Every officer commanding in quarters, gs.rrisons, or on a march, shall keep good order, and, to the utmost of his power, redress all such abuses or disorders which may be committed by any officer or soldier under his command ; if, upon complaint made to him of officers or soldiers ' Repealed and replaced by Resolutiou of Congress of April 14, 1777. 608 APPENDIX a beating, or otherwise ill-treating any person; of disturbing fairs or markets, or of committing any kind of riots to the disquieting of the good people of the United States; he the said commander, who shall refuse or omit to seo justice done on the offender or offenders, and reparation made to the party or parties injured, as far as part of the offenders pay shall enable him or them, shall, upon proof thereof, be punished, by a general court-martial, as if he himself had committed the crimes or disorders complained of. Section X. Article 1. Whenever any officer or soldier shall be accused of a capital crime, or of having used violence, or committed any offence against the per- sons or property of the good people of any of the United American States, such as is punishable by the known laws of the land, the commanding offi- cer and officers of every regiment, troop, or party, to which the person or persons so accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use his utmost endeavors to deliver over such accused person or persons to the civil magis- trate ; and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring them to a trial. If .any commanding officer or officers shall wilfully neglect or shall refuse, upon the application aforesaid, to deliver over suoh accused person or persons to the civil magistrates, or to be aiding and assist- ing to the officers of justice in apprehending such person or persons, the officer or officers so offending shall be cashiered. Article 2. No officer shall protect any person from his creditors, on the pretence of his being a soldier, nor any non-commissioned officer or soldier who does not actually do all duties as such, and no farther than is allowed by a resolution of Congress, bearing date the 36th day of December, 1775. Any officer offending herein, being convicted thereof before a court-martial^ shall be cashiered. Section- XI. Article 1. If any officer shall think himself to be wronged by his col- onel, or the commanding officer of the regiment, and shall, upon due appli- cation made to him, be refused to be redressed, he may complain to the general, commanding in chief the forces of the United States, in order to obtain justice, who is hereby required to examine into the said complaint, and, either by himself, or the board of war, to make report to Congress thereupon, in order to receive further directions. ' ' Eepealed and replaced by Resolution of Congress of April 14, 1777. AMERICAN ARTIGLES OF 1776. QO'9 Article 2. If any inferior officer or soldier shall think himself wronged by his captain, or other officer commanding the troop or company to which he belongs, he is to complain thereof to the commanding officer of the regi- ment, who is hereby required to summon a regimental court-martial, for the doing justice to the complainant; from which regimental court-martial either party may, if he thinks himself still aggrieved, appeal to a general court-martial ; but if, upon a second hearing, the appeal shall appear to be vexatious and groundless, the person so appealing shall be punished at the discretion of the said general court-martial. Sectioit XII. Article 1. Whatsoever commissioned officer, store-keeper, or commissary, shall be convicted at a general court-martial of having sold (without a proper order for that purpose) embezzled, misapplied, or wilfully, or through neglect, suffered any of the provisions, forage, arms, clothing, ammunition, or other military stores belonging to the United States, to be spoiled or damaged, the said officer, store-keeper, or commissary so offending, shall, at his own charge, make good the loss or damage, shall moreover forfeit all his pay, and be dismissed from the service. Article 2. "Whatsoever non-commissioned officer or soldier shall be con- victed, at a regimental court-martial, of having sold, or designedly, or through neglect, wasted the ammunition delivered out to him to 'be em- ployed in the service of the United States, shall, if a non-commissioned officer, be reduced to a private sentinel, and shall besides suffer corporeal punishment in the same manner as a private sentinel so offending, at the discretion of a regimental court-martial. Article 3. Every non-commissioned officer or soldier who shall be con- victed at a court-martial of having sold, iost or spoiled, through neglect, his horse, arms, clothes or accoutrements shall undergo such weekly stoppages (not exceeding the half of his pay) as a court-martial shall judge sufficient for repairing the loss or damage ; and shall suffer imprisonment, or such other corporeal punishment, as his crime shall deserve. Article 4. Every officer who shall be convicted at a court-martial of having embezzled or misapplied any money with which he may have been entrusted for the payment of the men under his command, or for inlisting men into the service, if a commissioned officer, shall be cashiered and com- pelled to refund the money, if a non-commissioned officer, shall be reduced to serve in the ranks as a private soldier, be put under stoppages until the money be made good, and suffer such corporeal punishment, (not extending to life or limb) as the court-martial shall think fit. rticle 5. Every captain of a troop or company is charged with the arms, accoutrements, ammunition, clothing, or other warlike stores belong- 610 APPENDIX C. ing to the troop or company under his command, which he is to be account- able for to his colonel, in case of their being lost, spoiled, or damaged, not by unavoidable accidents, or on actual service. SECTIOIf XIII. Article 1. All non-commissioned officers and soldiers, who shall be found one mile from the camp, without leave, in writing, from their commanding officer, shall suffer such punishment as shall be inflicted upon them by the sentence of a court-martial. Article 2. No officer or soldier shall lie out of his quarters, garrison, or camp, without leave from his superior officer, upon penalty of being pun- ished according to the nature of his offence, by the sentence of a court- martial. Article 3. Every non-commissioned officer and soldier -shall retire to his quarters or tent at the beating of the retreat; in default of which he shall be punished, according to the nature of his offence, by the commanding officer. Article 4. No officer, non-commissioned officer, or soldier, shall fail of repairing, at the time fixed, to the place of parade or exercise, or otlier ren- dezvous appointed by his commanding officer, if not prevented by sickness, or some other evident necessity ; or shall go from the said place of rendezvous, or from his guard, without leave from his commanding officer, before he shall be regularly dismissed or relieved, on the penalty of being punished accord- ing to the nature of his offence, by the sentence of a court-martial. Article 5. Whatever commissioned officer shall be found drunk on his guard, party, or other duty under arms, shall be cashiered for it; any non- commissioned officer or soldier so offending, shall suffer such corporeal pun- ishment as shall be inflicted by the sentence of a court-martial. Article 6. Whatever sentinel shall be found sleeping upon his post, or shall leave it before he shall be regularly relieved, shall suffer death, or such other punishment as shall be inflicted by the sentence of a court-martial. Article 7. No soldier belonging to any regiment, troop, or company, shall hire another to do his duty for him, or be excused from duty, but in case of sickness, disability, or leave of absence; and every such soldier found guilty of hiring his duty, as also the party so hired to do another's duty, shall be punished at the next regimental court-martial. Article 8. And every non-commissioned officer conniving at such hiring of duty as aforesaid, shall be reduced for it; and every commissioned officer, knowing and allowing of such ill-practices in the service, shall be punished by the Judgment of a general court-martial. Article 9. Any person, belonging to the forces employed in the service of the United States, who, by discharging of fire-arms, drawing of swords. AMERICAN ARTICLES OF 1776. 611 beating of drums, or by auy other means whatsoever, shall occasion false alarms in camp, garrison, or quarters, shall suffer death, or such other pun- ishment as shall be ordered by the sentence of a general court-martial. Article 10. Any ofi&cer or soldier who shall, without urgent necessity, or without the leave of his superior officer, quit his platoon or division, shall be punished, according to the nature of his offence, by the sentence of a court- martial. Article 11. No officer or soldier shall do violence to any person who brings provisions or other necessaries to the camp, garrison, or quarters of the forces of the United States employed in parts out of said states, on pain of death, or such other punishment as a court-martial shall direct. Article 12. Whatsoever officer or soldier shall misbehave himself before the enemy, or shamefully abandon any post committed to his charge, or shall speak words inducing others to do the like, shall suffer death. Article 13. Whatsoever officer or soldier shall misbehave himself before the enemy, and run away, or shamefully abandon any fort, post or guard, which he or they shall be commanded to defend, or speak words inducing others to do the like; or who, after victory, shall quit his commanding officer, or post, to plunder and pillage : Every such offender, being duly convicted thereof, shall be reputed a disobeyer of military orders; and shall suffer death, or such other punishment, as, by a general court-martial, shall be inflicted on him. Article 14. Any person, belonging to the forces of the United States, who shall cast away his arms and ammunition, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court- martial. Article 15. Any person belonging to the forces of the United States, who shall make known the watch- word to any person who is not entitled to re- ceive it according to the rules and discipline of war, or shall presume to give a parole or watch-word different from what he received, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court-martial. Article 16. All officers and soldiers are to behave themselves orderly in quarters, and on their march; and whosoever shall commit any waste or spoil, either in walks of trees, parks, warrens, fish-ponds, houses or gardens, corn-fields, enclosures or meadows, or shall maliciously destroy any property whatsoever belonging to the good people of the United States, unless by order of the then commander in chief of the forces of the said states, to annoy rebels or other enemies in arms against said states, he or they that shall be found guilty of offending herein, shall (besides such penalties as they are liable to by law) be punished according to the nature and degree of the offence, by the judgment of a regimental or general court-martial. 612 APPENDIX C. Article 17. Whosoever, belonging to the forces of the United States, employed in foreign parts, shall force a safe-guard, shall sufEer death. Article 18. Whosoever shall relieve the enemy with money, victuals, or ammunition, or shall knowingly harbor or protect an enemy, shall sufEer death, or such other punishment as by a court-martial shall be inflicted. Article 19. Whosoever shall be convicted of holding correspondence with, or giving intelligence to the enemy, eitheir directly or indirectly, shall sufEer death, or such other punishment as by a court-martial shall be inflicted. Article 20. All public stores taken in the enemy's camp, towns, forts, or magazines, whether of artillery, ammunition, clothing, forage, or provisions, shall be secured for the service of the United States, for the neglect of which the commanders in chief are to be answerable. Article 21. If any officer or soldier shall leave his post or colors to go in search of plunder, he shall upon being convicted thereof before a general court-martial, sufEer death, or such other punishment as by a court-martial shall be inflicted. Article 22. If any commander of any garrison, fortress, or post, shall be compelled by the officers or soldiers under his command, to give up to the enemy, or to abandon it, the commissioned officers, non-commissioned officers, or soldiers, who shall be convicted of having so ofEended, shall sufEer death, or such other punishment as shall be inflicted upon them by the sentence of a court-martial. Article 23. All suttlei's and retainers to a camp, and all persons whatso- ever serving with the armies of the United States in the field, though no inlisted soldier, are to be subject to orders, according to the rules and disci- . pline of war. Article 24. Officers having brevets, or commissions of a prior date to those of the regiment- in which they now serve, may take place in courts- martial and on detachments, when composed of different corps, according to the ranks given them in their brevets or dates of their former commissions; but in the regiment, troop, or company to which such brevet officers and those who have commissions of a prior date do belong, they shall do duty and take rank both on court-martial and on detachments which shall be composed only of their own corps, according to the commissions by which they are mustered in the said corps. Article 25. If upon marches, guards, or in quarters, different corps shall happen to join or do duty together, the eldest officer by commission there, on duty, or in quarters, shall command the whole, and give out orders for what is needful to the service ; regard being always had to the several ranks of those corps, and the posts they usually occupy. Article 26. And in like manner also, if any regiments, troops, or detach- ments of horse or foot shall happen to march with, or be encamped or AMERICAN ARTICLES OF 1776. 613 quartered with any bodies or detachments of other troops in the service of the United States, the eldest officer, without respect to corps, shall take upon him the command of the whole, and give the necessary orders to the service. Sectiok XIV.' Article 1. A general court-martial in the United States shall not consist of less than thirteen commissioned officers, and the president of such court- martial shall not be the commander-in-chief or commandant of the garrison where the offender shall be tried, nor be under the degree of a field officer. Article 2. The members both of general and regimental courts-martial shall, when belonging to different corps, take the same rank which they hold in the army ; but when courts-martial shall be composed of officers of one corps, they shall take their ranks according to the dates of the commis- sions by which they are mustered in the said corps. Article 3. The Judge-advocate general, or some person deputed by him, shall prosecute in the name of the United States of America; and in trials of offenders by general courts-martial, administer to each member the fol- lowing oaths : " You shall well and truly try and determine, according to your evi- dence, the matter now before you, between the United States of America, and the prisoners to be tried. So help you God. " You A. B. do swear, that you will duly administer justice according to the rules and articles for the better government of the forces of the United States of America, without partiality, favor, or affection ; and if any doubt shall arise, which is not explained by the said articles, according to your conscience, the best of your understanding, and the custom of war in the like cases. And you do further swear, that you will not divulge the sentence of the court, until it shall be approved of by the general, or commander in chief; neither will you, upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of the court-mar- tial, unless required to give evidence thereof as a witness by a court of justice, in a due course of law. So help you God." And as soon as the said oath shall have been administered to the respect- ive members, the president of the court shall administer to the judge advo- cate, or person officiating as such, an oath in the following words : " You A. B. do swear, that yon will not, upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular mem- ber of the court-martial, unless required to give evidence thereof, as a wit- ness, by a court of justice, in a due course of law. So help you God." ' Replaced by a new section by Resolution of Congress of May 31, 1786. See page . 619, post. 614 APPENDIX G. Article 4. All the members of a court-martial are to behave with calm- ness and decency; and in the giving of their votes, are to begin with the youngest in commission. Article 5. All persons who give evidence before a general court-martial, are to be examined upon oath; and no sentence of death shall be given against any offender by any general court-martial, unless two-thirds of the ofi&cers present shall concur therein. Article 6. All persons called to give evidence, in any cause, before a court-martial, who shall refuse to give evidence, shall be punished for such refusal, at the discretion of such court-martial : The oath to be adminis- tered in the following form, viz : "You swear the evidence you shall give in the cause now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God." Article 7. No field officer shall be tried by any person under the degree of a captain ; nor shall any proceedings or trials be carried on excepting be- tween the hours of eight in the morning and of three in the afternoon, ex- cept in cases which require an immediate example. Article 8. No sentence of a general court-martial shall be put in execu- tion, till after a report shall be made of the whole proceedings to Congress, or to the general or commander in chief of the forces of the United States, and their or his directions be signified thereupon.' Article 9. For the more equitable decision of disputes which may arise between officers and soldiers belonging to different corps, it is hereby directed, that the courts-martial shall be equally composed of officers be- longing to the corps in which the parties in question do then serve ; and that the presidents shall be taken by turns, beginning with that corps which shall be eldest in rank. Article 10. The commissioned officers of every regiment may, by the appointment of their colonel or commanding officer, hold regimental courts- martial for the enquiring into such disputes, or criminal matters, as may come before them, and for the inflicting corporeal punishments for small offences, and shall give judgment by the majority of voices; but no sentence shall be executed till the commanding officer (not being a member of the court-martial) or the commandant of the garrison, shall have confirmed the same. ' Article 11. No regimental court-martial shall consist of less than five officers, excepting in cases where that number cannot conveniently be assembled, when three may be sufficient; who are likewise to determine upon the sentence by the majority of voices ; which sentence is to be confirmed by the commanding officer of the regiment, not being a member of _the court- martial. ' Repealed and replaced by Resolution of Congress of April 14, 1777. AMERICAN ARTICLES OF 1776. 615 Article 12. Every officer commandiDg in any of the forts, barracks, or elsewhere, where the corps under his command consists of detachments from different regiments, or of independent companies, may assemble courts- martial for the trial of offenders in the same manner as if they were regimental, whose sentence is not to be executed until it shall be confirmed by the said commanding oilieer. Article 13. No commissioned officer shall be cashiered or dismissed from the service, excepting by an order from the Congress, or by the sentence of a general coui-t-martial ; but non-commissioned officers maybe discharged as private soldiers, and, by the order of the colonel of the regiment, or by the sentence of a regimental court-martial, be reduced to private sentinels. Article 14. No person whatever shall use menacing words, signs, or gestures, in the presence of a court-martial then sitting, or shall cause any disorder or riot, so as to disturb their proceedings, on the penalty of being punished at the discretion of the said court-martial. Article 15. To the end that offenders may be brought to Justice, it is hereby directed, that whenever any officer or soldier shall commit a crime deserving punishment, he shall, by his commanding officer, if an officer, be put in arrest; if a non-commissioned officer or soldier, be imprisoned till he shall be either tried by a court-martial, or shall be lawfully discharged by a proper authority. Article 16. No officer or soldier who shall be put in arrest or imprison- ment, shall continue in his confinement more than eight days, or till such time as a court-martial can be conveniently assembled. Article 17. No officer commanding a guard, or provost-martial, shall refuse to receive or keep any prisoner committed to his charge, by any officer belonging to the forces of the United States; which officer shall, at the same time, deliver an account in writing, signed by himself, of the crime with which the said prisoner is charged. Article 18. No officer commanding a guard, or provost-martial, shall presume to release any prisoner committed to his charge without proper authority for so doing ; nor shall he suffer any prisoner to escape, on the penalty of being punished for it by a sentence of a court-martial. Article 19. Every officer or provost-martial to whose charge prisoners shall be committed, is hereby required within twenty-four hours after such commitment, or as soon as he shall be relieved from his guard, to give in writing to the colonel of the regiment to whom the prisoner belongs (where the prisoner is confined upon the guard belonging to the said regiment, and that his offence only relates to the neglect of duty in his own corps) or to the commander in chief, their names, their crimes, and the names of the officers who committed them, on the penalty of his being punished for his disobedience or neglect, at the discretion of a court-martial. Article 20. And if any officer under arrest, shall leave his confinement €16 APPENDIX a before he is set at liberty by the officer who confined him, or by a superior power, he shall be cashiered for it. Article 21. "Whatsoever commissioned officer shall be convicted, before a general court-martial, of behaving in a scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman, shall be discharged from the service. Article 22. In all cases where a commissioned officer is cashiered for cowardice, or fraud, it shall be added in the punishment, that the crime, name, place of abode, and punishment of the delinquent, be published in the newspapers, and in and about the camp, and of that particular state from which the offender came, or usually resides : After -which, it shall be deemed scandalous for any officer to associate with him. Section XV. Article 1. When any commissioned officer shall happen to die, or be killed in the service of the United States, the major of the regiment, or the officer doing the major's duty in his absence, shall immediately secure all his effects, or equipage, then in camp or quarters; and shall, before the next regimental court-martial, make an inventory thereof, and forthwith transmit the same to the office of the board of war, to the end, that his executors may, after payment of his debts in quarters and interment, receive the over- plus, if any be, to his or their use. Article 2. When any non-commissioned officer or soldier shall happen to die, or to be killed in the service of the United States, the then commanding officer of the troop or company, shall, in the presence of two other com- missioned officers, take an account of whatever effects he dies possessed of, above his regimental clothing, arms, and accoutrements, and transmit the same to the office of the board of war; which said effects are to be accounted for and paid to the representative of such deceased non-commissioned officer or soldier. And in case any of the officers, so authorized to take care of the effects of dead officers and soldiers should, before they shall have accounted to their representatives for the same, have occasion to leave the regiment, by preferment or otherwise, they shall, before they be permitted to quit the same, deposite in the hands of the commanding officer or of the agent of the regiment, all the effects of such deceased non-commissioned officers and soldiers, in order that the same may be secured for, and paid to their respective representatives. Section- XVI. Article 1. All officers, conductors, gunners, matrosses, drivers, or any other persons whatsoever, receiving pay or hire in the service of the AMEUIOAN ABTIOLES OF 1776. 617 artillery of the United States, shall be governed by the aforesaid rules and articles, and shall be subject to be tried by courts-martial, in like manner with the officers and soldiers or the other troops in the service of the United States. Article 2. For differences arising amongst themselves, or in matters relating solely to their own corps, the courts-martial may be composed of their own officers ; but where a sufficient number of such officers cannot be assembled, or in matters wherein other corps are interested, the officers of artillery shall sit in courts-martial with the officers of the other corps, taking their rank according to the dates of their respective commissions, and no otherwise. Sbctiox XVII. Article 1. The officers and soldiers of any troops, whether minute-men, militia, or others, being mustered and in continental pay, shall, at all times, and in all places, when joined, or acting in conjunction with the regular forces of the United States, be governed by these rules or articles of war, and shall be subject to be tried by courts-martial in like manner with the officers and soldiers in the regular forces, save only that such courts-martial shall be composed entirely of militia officers of the same provincial corps with the offender. That such militia and minute-men as are now in service, and have, by particular contract with the respective States, engaged to be governed by particular regulations while in continental service, shall not be subject to the above articles of war. Article 2. For the future, all general officers and colonels, serving by •commission from the authority of any particular State, shall, on all detach- ments, courts-martial, or other duty wherein they may be employed in con- junction with the regular forces of the United States, take rank next after all generals and colonels serving by commissions from Congress, though the commissions of such particular generals and colonels should be of elder date ; and in like manner lieutenant-colonels, majors, captains, and other inferior officers, serving by commission from any particular State, shall, on all detach- ments, courts-martial or other duty, wherein they may be employed in con- junction with the. regular forces of the United States, have rank next after all officers of the like rank serving by commissions from Congress, though the commissions of such lieutenant-colonels, majors, captains, and other inferior officers should be of elder date to those of the like rank from Congress. Section XVIII. Article 1. The aforegoing articles are to be read and published once in every two months, at the head of every regiment, troop or company, 618 APPENDIX C. mustered, or to be mustered in the service of the United States; and are to he duly observed and exactly obeyed by all of&cers and soldiers who are or shall be in the said service. Article 2. The general, or commander in chief for the time being, shall have full power of pardoning or mitigating any of the punishments ordered to be inflicted, for any of the offences mentioned in the foregoing articles j and every offender convicted as aforesaid, by any regimental court-martial, may be pardoned, or have his punishment mitigated by the colonel, or officer commanding the regiment.' Article 3. No person shall be sentenced to suffer death, except in the cases expressly mentioned in the foregoing articles; nor shall more than one hundred lashes be inflicted on any ofiender, at the discretion of a court- martial. That every judge-advocate, or person officiating as such, at any general court-martial, do, and he is hereby required to transmit, with as much ex- pedition as the opportunity of time and distance of place can admit, the original proceedings and sentence of such court-martial to the secretary at war, which said original proceedings and sentence shall be carefully kept and preserved in the office of said secretary, to the end that persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof. That the party tried by any general court-martial, shall be entitled to a copy of the sentence and proceedings of such court-martial, upon demand thereof made by himself, or by any other person or persons, on his behalf, whether such sentence be approved or not. Article 4. The field officers of each and every regiment are to appoint some suitable person belonging to such regiment, to receive all such fines as may arise within the same, for any breach of any of the foregoing articles, and shall direct the same to be carefully and properly applied to the relief of such sick, wounded or necessitous soldiers as belong to such regiments; and such person shall account with such officer for all fines received and the application thereof. Article 5. All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the above articles of war, are to be taken cognizance of by a general or regimental court-martial, ac- cording to the nature and degree of the offence, and be punished at their discretion. ' Repealed and replaced by Resolution of Congress of April 14, 1777. APPENDIX D. AMERICAN ARTICLES OF MA T 31, 1786.' Whereas crimes may be committed by oificers and soldiers serving with small detachments of the forces of the United States, and where there may not be a suflBcient number of officers to hold a general court-martial, accord- ing to the rules and articles of war, in consequence of which criminals may escape punishment, to the great injury of the discipline of the troops and the public service; Resolved, That the lith Section of the Rules and Articles for the better government of the troops of the United States, and such other Articles as relate to the holding of courts-martial and the confirmation of the sentences thereof, be and they are hereby repealed; Resolved, That the following Rules and Articles for the administration of justice, and the holding of courts-martial, and the confirmation of the sen- tences thereof, be duly observed and exactly obeyed by all officers and soldiers who are or shall be in the armies of the United States. Administration of Justice. Article 1. General courts-martial may consist of any number of commis- sioned officers from 5 to 13 inclusively; but they shall not consist of less than 13, where that number can be convened without manifest injury to the service. Article 2. General courts-martial shall be ordered, as often as the cases may require, by the general or officer commanding the troops. But no sen- tence of a court-martial shall be carried into execution until after the whole proceedings shall have been laid before the said general or officer command- ing the troops for the time being; neither shall any sentence of a general court-martial in time of peace, extending to the loss of life, the dismission of a commissioned officer, or which shall either in time of peace or war respect a general officer, be carried into execution, until after the whole pro- ceedings shall have been transmitted to the secretary at war, to be laid ' Replaces Section 14 of the Articles of 1776. 619 620 APPENDIX D. before Congress for their confirmation, or disapproval, and their orders on the case. All other sentences may be confirmed and executed by the officer ordering the court to assemble, or the commanding officer for the time being, as the case may be. Article 3. Every officer commanding a regiment or corps, may appoint of his ov?n regiment or corps, courts-martial, to consist of 3 commissioned ofii- cers, for the trial of offences not capital, and the inflicting corporeal punish- ments, and decide upon their sentences. For the same purpose, all officers commanding any of the garrisons, forts, barracks, or other place, where the troops consist of different corps, may assemble courts-martial, to consist of 3 commissioned officers, and decide upon their sentences. Article 4. No garrison or regimental court-martial shall have the power to try capital cases, or commissioned officers; neither shall they inflict a fine exceeding one month's pay, nor imprison, nor put to hard labor, any non- commissioned officer or soldier, for a longer time than one month. Article 5. The members of all courts-martial shall, when belonging to different corps, take the same rank in court which they hold in the army. But when courts-martial shall be composed of officers of one corps, they shall take rank according to the commissions by which they are mustered in the said corps. Article 6. The judge advocate, or some person deputed by him, or by the general or officer commanding the army, detachment or garrison, shall prosecute in the name of the United States of America; but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question, to any of the witnesses, or any question to the prisoner, the answer to which might tend to crim- inate himself; and administer to each member the following oaths, which shall also be taken by all members of regimental and garrison courts-mar- tial : "You shall well and truly try and determine, according to evidence, the matter now before you, between the United States of America, and the pris- oner to be tried. So help you God." " You A. B. do swear, that you will duly administer justice, according to the rules and articles for the better government of the forces of the United States of America, without partiality, favor or affection; and if any doubt shall arise, which is not explained by said articles, according to your con- science, the best of your understanding, and the custom of war in the like cases. And you do further swear, that you will not divulge the sentence of the court, until it shall be published by the commanding officer. Neither will you, upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God." AMERICAN ARTICLES OF MAT 31, 1786. 621 And as soon as the said oaths shall have been administered to the respective members, the president of the court shall administer to the judge advocate, or person oflBciating as such, an oath in the following words : " You A. B. do swear, that you will not, upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular mem- ber of the court-martial, unless required to give evidence thereof as a wit- ness, by a court of justice, in a due course of law. So help you God." Article 7. All the members of a court-martial are to behave with decency and calmness; and in giving their votes, are to begin with the youngest in commission. Article 8. All persons who give evidence before a court-martial, are to be examined on oath, or affirmation, as the case may be, and no sentence of death shall be given against any offender by any general court-martial, unless two-thirds of the members. of the court shall concur therein. Article 9. Whenever an oath or affirmation shall be administered by a court-martial, the oath or affirmation shall be in the following form : " You swear (or affirm, as the case may be) the evidence you shall give in the case now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God." Article 10. On the trials of cases not capital, before courts-martial, the depositions of witnesses, not in the line or staff of the army, may be taken before some justice of the peace, and read in evidence, provided the prose- cutor and person accused are present at the taking the same. Article 11. No officer shall be tried but by a general court-martial, nor by officers of an inferior rank if it can be avoided. Nor shall any proceed- ings or trials be carried on, excepting between the hours of 8 in the morn- ing and 3 in the afternoon, except in cases which, in the opinion of- the officer appointing the court, require immediate example. Article 12. No person whatsoever shall use menacing words, signs or gestures in the presence of a court-martial, or shall cause any disorder or riot to disturb their proceedings, on the penalty of being punished at the discretion of the said court-martial. Article 13. No commissioned officer shall be cashiered, or dismissed from the service, excepting by order of Congress, or by the sentence of a general court-martial ; and no non-commissioned officer or soldier shall be discharged the service, but by the order of Congress, the secretary at war, the commander-in-chief, or commanding officer of a department, or by the sentence of a general court-martial. Article 14. Whenever any officer shall be charged with a crime, he shall be arrested and confined to his barracks, quarters or tent, and deprived of his 'sword by his commanding officer. And any officer who shall leave his 622 APPENDIX D. confinement before he shall be set at liberty by his commanding officer, or by a superior power, shall be cashiered for it. Article 15. Non-commissioned officers and soldiers, who shall be charged with crimes, shall be imprisoned until ihey shall be tried by a court-martial, or released by proper authority. Article 16. No officer or soldier, who shall be put in arrest or imprison- ment, shall continue in his confinement more than 8 days, or until such time as a court-martial can be assembled. Article 17. No officer commanding a guard, or provost-marshal, shall refuse to receive or keep any prisoner committed to his charge by any officer belonging to the forces of the United States, provided the officer committing shall, at the same time, deliver an account in writing signed by himself, of the crime with which the said prisoner is charged. Article 18. No officer commanding a guard, or provost-marshal, shall presume to release any person committed to his charge, without proper authority for so doing; nor shall he sufEer any person to escape on penalty of being punished for it by the sentence of a court-martial. Article 19. Every officer, or provost-marshal, to whose charge prisoners shall be committed, shall, within 24 hours after such commitment, or as soon as he shall be relieved from his guard, make report in writing, to the commander-in-chief, or commanding officer, of their names, their crimes and the names of the officers wlio committed them, on the penalty of his being punished for disobedience or neglect at the discretion of a court-mar- tial. Article 20. Whatever commissioned officer shall be convicted before a general court-martial, of behaving in a scandalous and infamous manner, such as is unbecoming an officer and a gentleman, shall be dismissed the service. Article 21. In cases where a court-martial may think it proper to sen- tence a commissioned officer to be suspended from command, they shall have power also to suspend his pay and emoluments for the same time, according to tlie nature and heinousness of the oflence. Article 22. In all cases where a commissioned officer is cashiered for cowardice or fraud, it shall be added in the sentence, that the crime, name, place of abode, and punishment of the delinquent be published in the news- papers, in and about camp, and of the particular State from which the offender came, or usually resides; after which it shall be deemed scandalous for any officer to associate with him. Article 23. The commanding officer of any post or detachment, in which there shall not be a number of officers adequate to form a general court-martial, shall, in cases which require the cognizance of such a court, report to the commanding officer of the department, who shall order a court to be assembled at the nearest post or detachment, and the party accused, AMERICAN ABTIOLES OF MAT 31, 1786. 623 with the necessary witnesses, to be transported to the place where the said court shall be assembled. Article 24. N'o person shall be sentenced to suffer death, except in the cases expressly mentioned in the foregoing articles; nor shall more than 100 lashes be inflicted on any offender at the discretion of a court-martial. Every judge advocate, or person officiating as such, at any general court- martial, shall transmit, with as much expedition as the opportunity of time and distance of place can admit, the original proceedings and sentence of such court-martial, to the secretary at war, which said original proceedings and sentence, shall be carefully kept and preserved, in the office of the said secretary, to the end, that persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof. The party tried by any general court-martial, shall be entitled to a copy of the sentence and proceedings of such court-martial after a decision on the sentence, upon demand thereof made by himself, or by any person or per- sons in his behalf, whether such sentence be approved or not. Article 25. In such cases where the general or commanding officer may think proper to order a court of inquiry, to examine into the nature of any transaction, accusation or imputation against any officer or soldier, the said court shall be conducted conformably to the following regulations: It may consist of one or more officers, not exceeding 3, with the judge advocate or a suitable person as a recorder, to reduce the proceedings and evidences to writing, all of whom shall be sworn to the faithful performance of their duty. This court shall have the same power to summon witnesses as a court-martial, and to examine them on oath. But they shall not give their opinion on the merits of the case, excepting they shall be thereto specially required. The parties accused shall also be permitted to cross-examine and interrogate the witnesses, so as to investigate fully the circumstances in question. Article 26. The proceedings of a court of inquiry must be authenticated by the signature of the recorder and the president, and delivered to the commanding officer; and the said proceedings may be admitted as evidence, by a court-martial, in cases not capital or extending to the dismission of an officer; provided, that the circumstances are such that oral testimony cannot be obtained. But, as courts of inquiry may be perverted to dishonorable purposes, and may be considered as engines of destruction to military merit, in the hands of weak and envious commandants, they are hereby prohibited, unless demanded by the accused. Article 27. The judge advocate, or the recorder, shall administer to the members the following oath : "You shall well and truly examine and inquire, according to your evidence, into the matter now before you, without favor or affection. So help you G-od." 624 APPENDIX D. After which the president shall administer to the judge adyecate, or recorder, the following oath : "You A. B. do swear, that you will, according to your best abilities,, accurately and impartially record the proceedings of the court, and the evidences to be given in the case in hearing. So help you God." The witnesses shall take the same oath as is directed to be administered to witnesses sworn before a court-martial. Resolved, That when any desertion shall happen from the troops of the United States, the officer commanding the regiment or corps to which the deserters belonged, shall be responsible, that an immediate report of the same be made to the commanding officer of the forces of the United States present. Resolved, That the commanding officer of any of the forces in the service of the United States, shall, upon report made to him of any desertions in the troops under his orders, cause the most immediate and vigorous search to be made after the deserter or deserters, which may be conducted by a commissioned or non-commissioned officer, as the case shall require. That, if such search should prove ineffectual, the officer commanding the regiment or corps to which the deserter or deserters belonged, shall insert, in the nearest gazette or newspaper, an advertisement, descriptive of the deserter or deserters, and offering a reward, not exceeding ten dollars, for each deserter, who shall be apprehended and secured in any of the gaols in the neighboring states. That the charges of advertising deserters, the reasonable extra expenses incurred by the person conducting the pursuit, and the reward, shall be paid by the secretary at war, on the certificate of the com- manding officer of the troops. APPENDIX E. AMERICAN ARTICLES OF 1806.' Sectiok 1. Be it enacted, ly the Senate and House of Representatives of the United States of America, in Congress assembled, That, from and after tlie passing of this act, the following shall be the rules and articles by which the armies of the United States shall be governed : Article 1. Every officer now in the army of the United States shall, in six months from the passing' of this act, and every officer who shall hereafter be appointed shall, before he enters on the duties of his office, subscribe these rules and regulations. Article 2. It is earnestly recommended to all officers and soldiers diligently to attend divine service ; and all officers who shall behave in- decently or irreverently at any place of divine worship shall, if commissioned officers, be brought before a general court-martial, there to be publicly and severely reprimanded by the president ; if non-commissioned officers or soldiers, every person so offending shall, for his first offence, forfeit one-sixth of a dollar, to be deducted out of his next pay; for the second offence, he shall not only forfeit a like sum, but be confined twenty- four hours; and for every like offence, shall suffer and pay in like manner ; which money, so forfeited, shall be applied, by the captain or senior officer of the troop or company, to the use of the sick soldiers of the company or troop to which the offender belongs. Article 3. Any non-commissioned officer or soldier who shall use any profane oath or execration, shall incur the penalties expressed in the fore- going article ; and a commissioned officer shall forfeit and pay, for each and every such offence, one dollar, to be applied as in the preceding article. Article 4. Every chaplain commissioned in the army or armies of the United States, who shall absent himself from the duties assigned him (excepting in cases of sickness or leave of absence), shall, on conviction thereof before a court-martial, be fined not exceeding one month's pay, besides the loss of his pay during his absence ; or be discharged, as the said court-martial shall judge proper. ' Act of April 10, 1806 (2 Stat, at Large, 259). 625 626 APPENDIX E. Article 5. Any of&cer or soldier wlio shall use contemptuous or dis- respectful words against the President of the United States^ against the Vice-President thereof, against the Congress of the United States, or against the Chief Magistrate or Legislature of any of the United States, in which he may be quartered, if a commissioned officer, shall be cashiered, or otherwise punished, as a court-martial shall direct ; if a non-commissioned officer or soldier, he shall suffer such punishment as shall be inflicted on him by the sentence of a court-martial. Article 6. Any officer or soldier who shall behave himself with contempt or disrespect toward his commanding officer, shall be punished, according to the nature of his offence, by the judgment of a court-martial. Article 7. Any officer or soldier who shall begin, excite, cause, or join in, any mutiny or sedition, in any troop or company in the service of the United States, or in any party, post, detachment, or guard, shall suffer death, or such other punishment as by a court-martial shall be inflicted. Article 8. Any officer, non-commissioned officer, or soldier, who, being present at any mutiny or sedition, does not use his utmost endeavor to sup- press the same, or, coming to the knowledge of any intended mutiny, does not, without delay, give information thereof to his commanding officer, shall be punished by the sentence of a court-martial with death, or otherwise, ac- cording to the nature of his offense. Article 9. Any officer or soldier who shall strike his superior officer, or draw or lift up any weapon, or offer any violence against him, being in the execution of his office, on any pretense whatsoever, or shall disobey any law- ful command of his superior officer, shall suffer death, or such other punish- ment as shall, according to the nature of his offense, be inflicted upon him by the sentence of a court-martial. Article 10. Every non-commissioned officer or soldier, who shall enlist himself in the service of the United States, shall, at the time of his so en- listing, or within six days afterward, have the Articles for the government of the armies of the United States read to him, and shall, by the officer who enlisted him, or by the commanding officer of the troop or company into which he was enlisted, be taken before the next justice of the peace, or chief magistrate of any city or town corporate, not being an officer of the army,' or where recourse cannot be had to the civil magistrate, before the judge ad- vocate, and in his presence shall take the following oath or affirmation : " I, A. B., do solemnly swear, or affirm (as the case may be), that I will bear true allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies or opposers whatsoever ; and observe and obey the orders of the President of the United States, and the ' By Sec. 11, Act of August 3, 1861, the oath of enlistment and re-enlistment may be administered by any commissioned officer of the Army. AMERICAN ABTICLES OF 1806. 627 orders of the ofiScers appointed over me, according to the Eules and Articles for the government of the armies of the United States." Which justice, magistrate, or judge advocate is to give to the oflQcer a certificate, signifying that the man enlisted did take the said oath or affirmation. Article 11. After a non-commissioned officer or soldier shall have been duly enlisted and sworn, he shall not be dismissed the service without a dis- charge in writing; and no discharge granted to him shall be sufiicient which is not signed by a field officer of the regiment to which he belongs, or com- manding officer, where no field officer of the regiment is present; and no discharge shall be given to a non-commissioned officer or soldier before his term of service has expired, but by order of the President, the Secretary of War, the commanding officer of a department, or the sentence of a general court-martial; nor shall a commissioned officer be discharged the service but by order of the President of the United States, or by sentence of a general court-martial. Article 12. Every colonel, or other officer commanding a regiment, troop, or company, and actually quartered with it, may give furloughs to non-commissioned officers or soldiers, in such numbers, and for so long a time, as he shall Judge to be most consistent with the good of the service; and a captain, or other inferior officer, commanding a troop or company, or in any garrison, fort, or barrack of the United States (his field officer being absent), may give furloughs to non-commissioned officers or soldiers, for a time not exceeding twenty days in six months, but not to more than two persons to be absent at the same time, excepting some extraordinary occasion should require it. Article 13. At every muster, the commanding officer of each regiment, troop, or company, there present, shall give to the commissary of musters, or other officer who musters the said regiment, troop, or company, certifi- cates signed by himself, signifying how long such officers, as shall not ap- pear at tlie said muster, have been absent, and the reason of their absence. In like manner, the commanding officer of every troop or company shall give certificates, signifying the reasons of the absence of the non-commissioned officers and private soldiers; which reasons and time of absence shall be in- serted in the muster-rolls, opposite the names of the respective absent officers and soldiers. The certificates shall, together with the muster-rolls, be re- mitted by the commissary of musters, or other officer mustering, to the Department of War, as speedily as the distance of the place will admit. Article 14. Every officer who shall be convicted before a general court- martial of having signed a false certificate relating to the absence of either officer or private soldier, or relative to his or their pay, shall be cashiered. Article 15. Every officer who shall knowingly make a false muster of man or horse, and every officer or commissary of musters who shall willingly gign, direct, or allow the signing of muster-rolls wherein such false muster 628 APPENDIX B. is contained, shall, upon proof made thereof, by two witnesses, hefore a general court-martial, be cashiered, and shall be thereby utterly disabled to have or hold any office or employment in the service of the United States. Article 16. Any commissary of musters, or other officer, who shall be convicted of having taken money, or other thing, by way of gratification, on mustering any regiment, troop, or company, or on signing muster-rolls, shall be displaced from his office, and shall be thereby utterly disabled to have or hold any office or employment in the service of the United States. Article 17. Any officer who shall presume to muster a person as a soldier who is not a soldier, shall be deemed guilty of having made a false muster, and shall sufEer accordingly. Article 18. Every officer who shall knowingly make a false return to the Department of War, or to any of his superior officers, authorized to call for such returns, of the state of the regiment, troop, or company, or garri- son, under his command; or of the arms, ammunition, clothing, or other stores thereunto belonging, shall, on conviction thereof before a court-mar- tial, be cashiered. Article 19. The commanding officer of every regiment, troop, or inde- pendent company, or garrison, of the United States, shall, in the be- ginning of every month, remit, through the proper channels, to the Depart- ment of War, an exact return of the regiment, troop, independent company, or garrison, under his command, specifying the names of the officers then absent from their posts, with the reasons for and the timei of their absence. And any officer who shall be convicted of having, through neglect or design, omitted sending such returns, shall be punished, according to the na ture of his crime, by the judgment of a general court-martial. Article 20. All officers and soldiers who have received pay, or have been duly enlisted in the service of the United States, and shall be convicted of having deserted the same, shall sufEer death, or such other punishment as, by sentence of a court-martial, shall be inflicted. Article 21. Any non-commissioned officer or soldier who shall, without leave from his commanding officer, absent himself from his troop, company, or detachment, shall, upon being convicted thereof, be punished according to the nature of his ofEence, at the discretion of a court-martial. Article 22. Tfo non-commissioned officer or soldier shall enlist himself in any other regiment, troop, or company, without a regular discharge from the regiment, troop, or company in which he last served, on the penalty of being reputed a deserter, and suffering accordingly. And in case any officer shall knowingly receive and entertain such non-commissioned officer or sol- dier, or shall not, after his being discovered to be a deserter, immediately confine him, and give notice thereof to the corps in which he last served, the said officer shall, by a court-martial, be cashiered. Article 23. Any officer or soldier who shall be convicted of having ad- AMERICAN ARTICLES OF 1806. 629 vised or persuaded any other officer or soldier to desert the service of the United States, shali suffer death, or such other punishment as shall be in flicted upon him by the sentence of a court-martial. Article 24. No officer or soldier shall use any reproachful or provoking speeches or gestures to another, upon pain, if an officer, of being put in ar- rest ; if a soldier, confined, and of asking pardon of the party offended, in the presence of his commanding officer. Article 25. No officer or soldier shall send a challenge to another officer or soldier, to fight a duel, or accept a challenge if sent, upon pain, if a commissioned officer, of being cashiered; if a non-commissioned officer or soldier, of suffering corporeal punishment, at the discretion of a court- martial. Article 26. If any commissioned or non-commissioned officer command- ing a guard shall knowingly or willingly suffer any person whatsoever to go forth to fight a duel, he shall be punished as a challenger; and all seconds, promoters, and carriers of challenges, in order to duels, shall be deemed principals, and be punished accordingly. And it shall be the duty of every officer commanding an army, regiment, company, post, or detachment, who is knowing to a challenge being given or accepted by any officer, non-com- missioned officer, or soldier, under his command, or has reason to believe the same to be the case, immediately to arrest and bring to trial such offenders. Article 27. All officers, of what condition soever, have power to part and quell all quarrels, frays, and disorders, though the persons concerned should belong to another regiment, troop, or company ; and either to order officers into arrest, or non-commissioned officers or soldiers into confinement, until their proper superior officer ^hall be acquainted therewith ; and whosoever shall refuse to obey such officer (though of an inferior rank), or shall draw his sword upon him, shall be punished at the discretion of a general court- martial. Article 28. Any officer or soldier who shall upbraid another for refusing a challenge, shall himself be punished as a challenger; and all officers and soldiers are hereby discharged from any disgrace or opinion of disadvantage "which might arise from their having refused to accept of challenges, as they will only have acted in obedience to the laws, and done their duty as good soldiers who subject themselves to discipline. Article 29. No sutler shall be permitted to sell any kind of liquors or victuals, or to keep their houses or shops open for the entertainment of sol- diers, after nine at night, or before the beating of the reveille, or upon Sun- days, during divine service or sermon, on the penalty of being dismissed from all future sutling. Article 30. All officers commanding in the field, forts, barracks, or gar- risons of the United States, are hereby required to see that the persons 630 APPENDIX E. permitted to suttle stall supply the soldiers with good and wholesome pro-r visions^ or other articles, at a reasonable price, as they shall be answerable for their neglect. Article 31. No officer commanding in any of the garrisons, forts, or barracks of the United States, shall exact exorbitant prices for houses or stalls, let out to sutlers, or connive at the like exactions in others; nor by his own authority, and for his private advantage, lay any duty or imposition upon, or be interested in, the sale of any victuals, liquors, or other necessa- ries of life brought into the garrison, fort or barracks, for the use of the soldiers, on the penalty of being discharged from the service. Article 32. Every officer commanding in quarters, garrisons, or on the march, shall keep good order, and, to the utmost of his power, redress all abuses or disorders which may be committed by any officer or soldier under his command; if, upon complaint made to him of officers or soldiers beating or otherwise ill-treating any person, or disturbing fairs or markets, or of committing any kind of riots, to the disquieting of the citizens of the United States, he, the said commander, who shall refuse or omit to see justice done to the offender or offenders, and reparation made to the party or parties in- jured, ;is far as part of the offender's pay shall enable him or them, shall, upon proof thereof, be cashiered, or otherwise punished, as a general court- martial shall direct. Article 33. "When any commissioned officer or soldier shall be accused of a capital crime, or of having used violence, or committed any offense against the person or property of any citizen of any of the United States, such as is punishable by the known laws of the land, the commanding officer and offi- cers of every regiment, troop, or company to which the person or persons so accused shall belong, are hereby required, upon application duly made by, or in behalf of, the party or parties injured, to use their utmost endeavors to deliver over such accused person or persons to the civil magistrate, and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring him or them to trial. If any commanding officer or officers shall wilfully neglect, or shall refuse upon the application aforesaid, to deliver over such accused per- son or persons to ihe civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or offi- cers so offending shall bs cashiered. Article 34. If any officer shall think himself wronged by his Colonel, or the commanding officer of the regiment, and shall, upon due application be- ing made to him, be refused redress, he may complain to the General com- manding in the State or Territory where such regiment shall be stationed, in order to obtain justice; who is hereby required to examine into said com- plaint, and take proper measures for redressing the wrong complained of, AMERICAN ARTICLES OF 1806. 631 and transmit, as soon as possible, to the Department of War, a true state of such complaint, with the proceedings had thereon. Article 35. If any inferior officer or soldier shall think himself wronged by his Captain or other ofBcer, he is to complain thereof to the commanding officer of the regiment, who is hereby required to summon a regimental court-martial, for the doing justice to the complainant; from which regi- mental court-martial either party may, it he thinks himself still aggrieved, appeal to a general court-martial. But if, upon a second hearing, the appeal shall appear vexatious and groundless, the person so appealing shall be pun- ished at the- discretion of the said court-martial. Article 36. Any commissioned officer, store-keeper, or commissary, who shall be convicted at a general court-martial of having sold, without a proper order for that purpose, embezzled, misapplied, or wilfully, or through neglect, suffered any of the provisions, forage, arms, clothing, ammunition, or other military stores belonging to the United States to be spoiled or damaged, shall, at his own expense, make good the loss or damage, and shall, more- over, forfeit all his pay, and be dismissed from the service. Article 37. Any non-commissioned officer or soldier who shall be con- victed at a regimental court-martial of having sold, or designedly, or through neglect, wasted the ammunition delivered out to him, to be employed in the service of the United States, shall be punished at the discretion of such court. Article 38. Every non-commissioned officer or soldier who shall be con- victed before a court-martial of having sold, lost, or spoiled, through neglect, his horse, arms, clothes, or accoutrements, shall undergo such weekly stop- pages (not exceeding the half of his pay) as such court-martial shall judge sufficient, for repairing the loss or damage; and shall suffer confinement, or such other corporeal punishment as his crime shall deserve. Article 39. Every officer who shall be convicted before a court-martial of having embezzled or misapplied any money with which he may have been intrusted, for the payment of the men under his command, or for enlisting men into the service, or for other purposes, if a commissioned officer, shall be cashiered, and compelled to refund the money; if a non-commissioned officer, shall be reduced to the ranks, be put under stoppages until the money be made good, and suffer such corporeal punishment as such court-martial shall direct. Article 40. Every captain of a troop or company is charged with the arms, accoutrements, ammunition, clothing, or other warlike stores belong- ing to the troop or company under his command, which he is to be account- able for to his Colonel in case of their being lost, spoiled, or damaged, not by unavoidable accidents, or on actual service. Article 41. All non-commissioned officers and soldiers who shall be found one mile from the camp without leave, in writing, from their com- ^32 APPENDIX E. manding of&cer, shall sufEer such punishment as shall be inflicted upon them by the sentence of a court-martial. Article 42. No oflBcer or soldier shall lie out of his quarters, garrison, or camp without leave from his superior oflBcer, upon penalty of being pun- ished according to the nature of his offense, by the sentence of court-martial. Article 43. Every non-commissioned officer and soldier shall retire to his quarters or tent at the beating of the retreat; in default of which he shall be punished according to the nature of his offense. Article 44. No ofl&cer, non-commissioned officer, or soldier shall fail in repairing, at the time fixed, to the place of parade, of exercise, or other ren- dezvous appointed by his commanding officer, if not prevented by sickness or some other evident necessity, or shall go from the said place of rendezvous without leave from his commanding officer, before he shall be regularly dis- missed or relieved, on the penalty of being punished, according to the nature of his offense, by the sentence of a court-martial. Article 45. Any commissioned officer who shall be found drunk on his guard, party, or other duty, shall be cashiered. Any non-commissioned officer or soldier so offending shall suffer such corporeal punishment as shall be inflicted by the sentence of a court-martial. Article 46. Any sentinel who shall be found sleeping upon his post, or shall leave it before he shall be regularly relieved, shall suffer death, or such other punishment as shall be inflicted by the sentence of a court-martial. Article 47. No soldier belonging to any regiment, troop, or company shall hire another to do his duty for him, or be excused from duty but in cases of sickness, disability, or leave of absence;. and every such soldier found guilty of hiring his duty, as also the party so hired to do ajiother's duty, shall be punished at the discretion of a regimental court-martial. Article 48. And every non-commissioned officer conniving at such hiring of duty aforesaid, shall be reduced; and every commissioned officer knowing and allowing such ill-practices in the service, shall be punished by the judg- ment of a general court-martial. Article 49. Any officer belonging to the service of the United States, who, by discharging of fire-arms, drawing of swords, beating of drums, or by any other means whatsoever, shall occasion false alarms in camp, garrison, or quarters, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court-martial. Article 50. Any officer or soldier who shall, without urgent necessity, or without the leave of his superior officer, quit his guard, platoOn, or division, shall be punished, according to the nature of his offense, by the sentence of a court-martial. Article 51. No officer or soldier shall do violence to any person who brings provisions or other necessaries to the camp, garrison, or quarters of AMERICAN ARTICLES OF 1806. 633 the forces of the United States, employed in any parts out of the said States, upon pain of death, or such other punishment as a court-martial shall direct. Article 52. Any officer or soldier who shall misbehave himself before the enemy, run away, or shamefully abandon any fort, post, or guard which he or they may be commanded to defend, or speak words inducing others to do the like, or shall cast away his arms and ammunition, or who shall quit his post or colors to plunder and pillage, every such offender, being duly con- victed thereof, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court-martial. -Article 53. Any person belonging to the armies of the United States who shall make known the watchword to any person who is not entitled to receive it according to the rules and discipline of war, or shall presume to give a parole or watchword different from what he received, shall suffer death, or ^uch other punishment as shall be ordered by the sentence of a general court-martial. Article 54. All officers and soldiers are to behave themselves orderly in quarters and on their march ; and whoever shall commit any waste or spoil, either in walks of trees, parks, warrens, fish-ponds, houses, or gardens, corn-fields, inclosures of meadows, or shall maliciously destroy any property whatsoever belonging to the inhabitants of the United States, unless by order of the then commander-in-chief of the armies of the said States, shall (besides such penalties as they are liable to by law) be punished according to the nature and degree of the offense, by the Judgment of a regimental or general court-martial. Article 55. "Whosoever, belonging to the armies of the United States in foreign parts, shall force a safeguard, shall suffer death. Article 56. Whosoever shall relieve the enemy with money, victuals, or ammunition, or shall knowingly harbor or protect an enemy, shall suffer death, or such other punishment as shall be ordered by the sentence of a court-martial. Article 57. "Whosoever shall be convicted of holding correspondence with, or giving intelligence to, the enemy, either directly or indirectly, shall suffer death, or such other punishment as shall be ordered by the sentence of a court-martial. Article 58. All public stores taken in the enemy's camp, towns, forts, or magazines, whether of artillery, ammunition, clothing, forage or provi- sions, shall be secured for the service of the United States; for the neglect of which the commanding officer is to be answerable. Article 59. If any commander of any garrison, fortress, or post shall be compelled, by the officers and soldiers under his command, to give up to the enemy, or to abandon it, the commissioned officers, non-commissioned officers, or soldiers who shall be convicted of having so offended, shall suffer 634 APPEyDIX B. death, or sucli other panishment as shall be inflicted upon them by the sen- tence of a coui't-martial. Article 60. All sutlers and retainers to the camp, and all persons what- soever, serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and dis- cipline of war. Article 61. Officers having brevets- or commissions of a prior date to those of the regiment in which they serve, may take place in courts-martial and on detachments, when composed of different corps, according to the ranks given them in their brevets or dates of their former commissions; but in the regiment, troop, or company to which such officers belong, they shall do duty and take rank both in courts-martial and on detachments which shall be composed of their own corps, according to the commissions by which they are mustered in the said corps. Article 62. If, upon marches, guards, or in quarters, different corps of the army shall happen to join, or do duty together, the officer highest in rank of the line of the army, marine corps, or militia, by commission, there on duty or in quarters, shall command the whole, and give orders for what is needful to the service, unless otherwise specially directed by the President of the United States, according to the nature of the case. Article 63. The functions of the engineers being generally confined to the most elevated branch of military science, they are not to assume, nor are they subject to be ordered on any duty beyond the line of their imme- diate profession, except by the special order of the President of the United States; but they are to receive every mark of respect to which their rank in the army may entitle them respectively, and are liable to be transferred, a.t the discretion of the President, from one corps to another, regard being paid to rank. Article 64. General courts-martial may consist of any number of com- missioned officers, from five to thirteen, inclusively; but they shall not con- sist of less than thirteen where that number can be convened without manifest injury to the service. Article 65. Any general officer commanding an army, or Colonel com- manding a separate department, may appoint general courts-martial when- ever necessary. But no sentence of a court-martial shall be carried into execntion until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court-martial, in the time of peace, extending to the loss of life, or the dismission of a commissioned, officer, or which shall, either in time of peace or war, respect a general officer, be carried into execntion, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the Presi- dent of the United States for his confirmation or disapproval, and orders in AMERICAN ARTICLES OF 1S06. 635 the case. All other sentences may be confirmed and executed by the officer ordering the court to assemble, or the commanding officer for the tijne being, as the case may be. Article 66. Every officer commanding a regiment or corps may appoint, for his own regiment or corps, courts-martial, -to consist of three commis- sioned officers, for the trial and punishment of offenses not capital, and decide upon their sentences. For the same purpose, all officers commanding any of the garrisons, forts, barracks, or other places where the troops consist of different corps, may assemble courts-martial, to consist of three commis- sioned officers, and decide upon their sentences. Article 67. No garrison or regimental court-martial shall have the power to try capital cases or commissioned officers; neither shall they inflict a fine exceeding one month's pay, nor imprison, nor put to hard labor, any non- commissioned officer or soldier for a longer time than one month. Article 68. Whenever it may be found convenient and necessary to the public service, the officers of the marines shall be associated with the officers of the land forces, for the purpose of holding courts-martial, and trying offenders belonging to either; and, in such cases, the orders of the senior officer of either corps who may be present and duly authorized, shall be received and obeyed. Article 69. The judge-advocate, or some person deputed by him, or by the general, or officer commanding the army, detachment, or garrison, shall prosecute in the name of the United States, but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question to any of the witnesses or any question to the prisoner, the. answer to which might tend to criminate himself; and administer to each member of the court, before they proceed upon any trial, the following oath, which shall also be taken by all members of the regi- mental and garrison courts-martial. " You, A. B., do swear that you will well and truly try and determine, according to evidence, the matter now before you, between the United States of America and the prisoner ±o be tried, and that you will duly administer Justice, according to the provisions of 'An act establishing Rules and Articles for the government of the armies of the United States,' with- out partin.lity, favor, or affection; and if any doubt should arise, not explainel by said Articles, accorling to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authoritv; neither will you disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God." As soon as the said oath shall have been administered to the respective 636 APPENDIX E. members, the president of the court shall administer to the judge advocate, or person officiating as such, an oath in the following words : " Yon, A. B., do swear, that yon will not disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law; nor divulge the sentence of the court to any but the proper authority, until it shall be duly disclosed by the same. So help you God." Article 70. When a prisoner, arraigned before a general court-martial, shall, from obstinacy and deliberate design, stand mute, or answer foreign to the purpose, the court may proceed to trial and judgment as if the pris- oner had regularly pleaded not guilty. Article 71. When a member shall be challenged by a prisoner, he must state his cause of challenge, of which the court shall, after due deliberation, determine the relevancy or validity, and decide accordingly; and no chal- lenge to more than one member at a time shall be received by the court. Article 72. All the members of a court-martial are to behave with decency and calmness; and in giving their votes are to begin with the youngest in commission. Article 73. All persons who give evidence before a court-martial are to be examined on oath or afiBrmation, in the following form: " You swear, or affirm (as the case may be), the evidence yon shall give in the cause now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God." Article 74. On the trials of cases not capital, before courts-martial, the deposition of witnesses, not in the line or staff of the Army, may be taken before some justice of the peace, and read in evidence ; provided the prose- cutor and person accused are present at the taking the same, or are duly notified thereof. Article 75. Xo officer shall be tried but by a general court-martial, nor by officers of an inferior rank, if it can' be avoided. Nor shall any proceed- ings of trials be carried on, excepting between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the cou^t-martial, require immediate example. Article 76. No person whatsoever shall use any menacing words, signs, or gestures, in presence of a court-martial, or shall cause any disorder or riot, or disturb their proceedings, on the penalty of being punished at the discretion of the said court-martial. Article 77. Whenever any officer shall be charged with a crime, he shall be arrested and confined in his barracks, quarters, or tent, and deprived of his sword by the commanding officer. And any officer who shall leave his confinement before he shall be set at liberty by his commanding officer, or by a superior officer, shall be cashiered. Article 78. Non-commissioned officers and soldiers, charged with crimes, AMERICAN ARTICLES OF 1S06. 637 shall be confined until tried by a court-martial, or released by proper authority. Article 79. No oflBcer or soldier who shall be put in arrest shall continue in confinement more than eight days, or until such time as a coart-martial can be assembled. Article 80. No officer commanding a guard, or provost marshal, shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of the United States; provided the officer committing shall, at the same time, deliver an account in writing, signed by himself, of the crime with which the said prisoner is charged. Article 81. No officer commanding a guard, or provost marshal, shall presume to release any person committed to his charge without proper authority for so doing, nor shall he suffer any person to escape, on the penalty of being punished for it by the sentence of a court-martial. Article 82. Every officer or provost marshal, to whose charge prisoners shall be committed, shall, within twenty-four hours after such commitment, or as soon as he shall be relieved from his guard, make report in writing, to the commanding officer, of their names, their crimes, and the names of the officers who committed them, on the penalty of being punished for disobedi- ence or neglect, at the discretion of a court-martial. Article 83. Any commissioned officer convicted before a general court- martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service. , Article 84. In cases where a court-martial may think it proper to sen- tence a commissioned officer to be suspended from command, they shall have power also to suspend his pay and emoluments for the same time, according to the nature and heinousness of the offense. Article 85. In all cases where a commissioned officer is cashiered for cowardice or fraud, it shall be added in the sentence, that the crime, name, and place of abode, and punishment of the delinquent, be published in the newspapers in and about the camp, and of the particular State from which the offender came, or where he usually resides; after which it shall be deemed scandalous for an officer to associate with him. Article 86. The commanding officer of any post or detachmenc, ia which there shall not be a number of officers adequate to form a general court- martial, shall, in cases which require the cognizance of such a court, report to the commanding officer of the department, who shall order a court to be assembled at the nearest post or department, and the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled. Article 87. No person shall be sentenced to suffer death but by the con- currence of two-thirds of the members of a general court-martial, nor except in the cases herein expressly mentioned ; nor shall more than fifty lashes be ^38 APPENDIX E. inflicted on any ofEender, at the discretion of a court-martial ; and no officer, non-commissioned officer, soldier, or follower of the Army, shall be tried a second time for the same offense. Article 88. Xo person shall be liable to be tried and punished by a general court-martial for any offense which shall appear to have been com- mitted more than two years before the issuing of the order for such trial, unless the person, by reason of having absented himself, or some other manifest impediment, shall not have been amenable to justice within that period. Article 89. Every officer authorized to order a general court-martial shall have power to pardon or mitigate any punishment ordered by such court, except the sentence- of death, or of cashiering an officer; which, in the cases where he has authority (by Article 65) to carry them into execu- tion, he may suspend, until the pleasure of the President of the United States can be known; which suspension, together with copies of the proceed- ings of the court-martial, the said officer shall immediately transmit to the President for his determination. And the colonel or commanding officer of the regiment or garrison where any regimental or garrison court-martial shall be held, may pardon or mitigate any punishment ordered by such court to be inflicted. Article 90. Every judge-advocate, or person officiating as such, ax any general court-martial, shall transmit, with as much expedition as the oppor- tunity of time and distance of place can admit, the original proceedings and sentence of such court-martial to the Secretary of War; which said original proceedings and sentence shall be carefully kept and preserved in the office of said Secretary, to the end that the persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof. The party tried by any general court-martial shall, upon demand thereof, made by himself, or by any person or persons in his behalf, be entitled to a copy of the sentence and proceedings of such court-martial. Article 91. In cases where the geneiral, or commanding officer may order a court of inquiry to examine into the nature of any transaction, accusation, or imputation against any officer or soldier, the said court shall consist of one or more officers, not exceeding three, and a judge advocate, or other suitable person, as a recorder, to reduce the proceedings and evidence to writing; all of whom shall be sworn to the faithful performance of their duty. This court shall have the same power to summon witnesses as a court- martial, and to examine them on oath. But they shall not give their opinion on the merits of the case, excepting they shall be thereto specially required. The parties accused shall also be permitted to cross-examine and interrogate the witnesses, so as to investigate fully the circumstances in the question. Article 92. The proceedings of a court of inquiry must be authenticated by the signature of the recorder and the president, and delivered to the AMERICAN ARTICLEB OF 1808. 639 tjommanding officer, and the said proceedings may be admitted as evidence by a court-martial, in cases not capital, or extending to the dismission of an ■officer, provided that the circumstances are such that oral testimony cannot be obtained. But as courts of inquiry may be perverted to dishonorable purposes, and may be considered as engines of destruction to military merit, in the hands of weak and envious commandants, they are hereby prohibited, unless directed by the President of the United States, or demanded by the accused. Article 93. The judge advocate or recorder shall administer to the members the following oath : " You shall well and truly examine and inquire, according to your evi- dence, into the matter now before you, without partiality, favor, affection, prejudice, or hope of reward. So help you God." After which the president shall administer to the judge advocate or recorder the following oath: " You, A. B., do swear that you will, according to your best abilities, accurately and impartially record the proceedings of the court, and the evi- dence to \> particular form of words is necessary in the description of a military offense, the language used must be such as to describe the offense clearly and completely, as to the elements which are essential to its crim- inality, and no words which are essential to such description can be safely omitted. Care should be taken to avoid redundancy, and matter in the nature of evidence merely should be carefully excluded. What is known as argumentativeness should also be avoided; that is, the introduction of reason- ing, or the drawing of conclusions either of fact or law, in respect to the facts alleged in the specification. In conclusion, the admirable statement by Attorney- Greneral Gushing of the conditions essential to the validity of a military charge are earnestly recommended to those whose duty it may become to prepare charges and specifications in the military service. " Trials by court-martial are gov- erned by the nature of the service, which demands intelligible precision of language, but regards the substance of things rather than their forms. ***** The most bald statement of the facts alleged as constituting the offense, provided the legal offense itself be distinctively and accurately described in such terms of precision as the rules of military jurisprudence require, will be tenable in court-martial proceedings, and will be adequate groundwork for conviction and sentence. " ' Article 3. Charge. — Making a prohibited enlistment (or muster), in violation of the Sa Article of War. Specification. — In that Captain E I , — th Eegiment of Cavalry, having been duly authorized to recruit for the military service (or to muster ' VII. Opinions of the Attorney-General. 603. " All that is necessary in a military charge is that it be sufficiently clear to inform the accused of the military offense for which he is to be tried, and to enable him to prepare bis defense." Attorney -General Wirt, 1 Opin., 286; Tytler, 309; Kennedy, 69. 64:4 APPENDIX F. troops iuto the military service), did knowingly enlist (or muster) into the military service of the United States one C D , a minor under the age of sixteen years (or a minor over the age of sixteen years, without the written consent of his parent or guardian). Or, did knowingly enlist, etc. , E F , an intoxicated person ; Or, did knowingly enlist, etc., G H , an insane person; Or, did knowingly enlist, etc. , I J , a deserter from the military (or naval) service of the United States; Or, did knowingly enlist, etc., K L , who had been convicted of an infamous offense, to wit, the offense of perjury ; the said enlistment heing prohibited by law. This at , , on the — th day of , 189 — . Article 5. Charge. — Mustering as a soldier a person not a soldier, in violation of the 5th Article of War. Specification. — In that Captain H G , — th Regiment of Cavalry, U. S. Army, having been duly authorized to muster Company E, — th Regiment of Cavalry, for the month of June, 189 — (or " to master- in the — th Regiment of Infantry, Illinois Volunteers, or militia), did unlawfully muster one S F , a civilian, as a musician in said com- pany, well knowing that the said S E was not a duly enlisted soldier at the time of said muster. This at , on the — th day of , 189 — . Article 6. Charge. — Receiving money by way of gratification at muster, in violation of the 6th Article of War. Specification. — In that Captain G H , — th Regiment of Artillery, U. S. Army, having been duly authorized to muster Company D, — th Regiment of Infantry for the month of June, 189 — , and having mustered the said company in pursuance of such authority, did recei,ve from Captain T Y , commanding said company, a sum of money, to wit, one hundred dollars ($100.00), for mustering said company. This at Fort , , on the — th day of , 189—. Article 7. Charge. — Omitting to send a monthly return of his company, in viola- tion of the 7fch Article of War. Specification. — In that First Lieutenant G J , — th Regiment of Artillery, U. S. Army, being in command of Light Battery P, — th Regi- ment of Artillery, U. S. Army, did, knowingly and willfully (or through F0RM8 OF CHARGES. 645 neglect) fail and omit to prepare and send to the Department of War a monthly refcura of the said light battery for the month of June, 189 — . This at Fort , . Article 8. Charge. — Making a false return, in violation of the 8th Article of War. Specification. — In that First Lieutenant T Y , — d Eegiment of Artillery, being in command of Light Battery G, — d Begiment of Artillery, U. S. Army, and being required, as such commanding officer, to make a quarterly return of quartermaster's stores to the Quartermaster General of the Army, an officer authorized by law and by the General Eegulations of the Army, to call for such returns of stores, furnished the said Lieutenant Y for use in the military service, did submit to the said Quartermaster- General a return of quartermaster's stores for the quarter ending on the 30th day of June, 189 — , setting forth that there were on hand in the said Light Battery G eighty-two public horses, which return was in part false, and was well known by the said Lieutenant Y to be false in part, in that there were bat eighty public horses on hand at the date above specified. This at , , on the — th day of , 189 — . Article 13. Charge. — Signing a false certificate, in violation of the 13th Article of War. Specification. — In that Captain A D , commanding Company G, — th Regiment of Infantry, U. S. Army, did sign a certificate attached to and forming a part of the muster-roll of the said company for the month of , 18 — , the said certificate being to the effect that (here state the contents of the certificate), which certificate was false (or in part false), in that (here set forth the particulars of the false certificate). This at , . Article 14. Charge. — Making a false muster, in violation of the 14th Article of War. Specification. — In that Major J T , — th Eegiment of , U. S. Army, having been duly appointed to muster the troops stationed at Fort , , for the month of February, 189 — , did knowingly and falsely muster one F H , a civilian, as an artificer of Company G, — th Eegiment of Infantry, TJ. S. Army, he, the said Major J T , well knowing that the said F H , was not a member of the said company (or " of the military establishment ").' This at Fort , . ' This offense miiy be committed by the officer whose command is presented for muster, and by whom or under whose direction the muster-rolls have been prepared, as well as by the mustering officer, as indicated in the form of charge above given. In 646 APPENDIX F. Article 15. Charge. — Suffering military stores to be damaged, in violation of the 15th Article of War. Specification. — In that Captain D T , Commissary of Subsist- ence, U. S. Army, Depot Commissary of Subsistence, at , ,. being accountable for a quantity of subsistence stores and supplies, furnished for use in the military service, did willfully fail and omit to cause the said stores and supplies to be adequately protected from the vreather and, through such neglect, did suffer a large quantity of the said stores, to wit, sixty-two (62) sacks of iiour and twenty-seven (27) sacks of corn-meal to be spoiled (or damaged) by the elements, thereby causing a pecuniary loss to the United States to the amount of dollars. This at , , on or about the — th day of , 189 — . Aeticle 16, (selling AMMUKITIOK, ETC.) Charge. — Selling ammunition, in violation of the 16th Article of War. Specification. — In that Private Y T , Troop H, — th Eegiment of Cavalry, U. S. Army, having had delivered to him a quantity of ammu- nition for use in the military service, did unlawfully and withoutauthority sell a portion of the same, to wit, one hundred and fifty rounds of ammuni- tion for the Colt's revolver, model of 1894, for which Captain W H , — th Eegiment of Cavalry, was responsible. ' This at , , on the — th day of , 189 — . Article 16. (WASTIls^G AMMUNITION', ETC.) Charge. — Wasting ammunition, in violation of the 16th Article of War. Specification. — In that Sergeant H R , Troop D, — th Eegiment of Cavalry, U. S. Army, having had delivered to him a quantity of ammu- nition for use in the military service, did willfully (or through neglect) waste a portion of the same, to wit, forty-eight rounds of ammunition for such a case the specification should take the following form: "In that Captain Y , commanding Company E, — th Regiment of Infantry, U. S. Army, did prepare or cause to be prepared, and did sign and submit to the mustering olBcer, Major B D ', — th Regiment of Cavalry, a muster-roll of the said Company E, upon which the name of A B was borne as a musician, which entry was false, and was well known by the said Captain T Y to be false, in that the said A B was not a musi- cian in the said Company E, but a civilian, not connected with the military service. ' The offense desfiibed in this Article is susceptible of being charged under the more general terms of the ninth clause of Article 60. To bring an offense within the scope of Article 16 the ammunition sold must have been issued to the soldier for use in the military service, as a part of his equipment for service in garrison or in the field. See notes to Article 60, post. FORMS OF CHARGMS. 647 the U. S. magazine carbine, model of 1896 by firing it away (or by casting it away, at drill, or on the march, etc.), without orders or authority for such expenditure (or for such disposition) of the same. This at Camp , , on the — th day of , 189 — . Article 17. (selling clothing, etc.) Charge. — Selling clothing, in violation of the 17th Article of War. Specification. — In that Private A B , Company P, — th Eegi- ment of Infantry, TJ. S. Army, did sell the following articles of uniform clothing issued to him, for use in the military service, viz. : one forage-cap, value $ ; one woolen blanket, value $ ; one campaign hat, value $ ; total value of articles sold, % . This at , , on the — th day of , 189 — . Article 17. (losing oe spoiling arms, clothing, etc., through neglect.) Charge. — Losing accoutrements, in violation of the 17th Article of War. Specification. — In that Private C D , Company P, — th Kegi- ment of Infantry, U. S. Army, did, through neglect, lose (or spoil) the following articles (of clothing or accoutrements) issued to him for use in the military service, viz. : one pistol-holster, value $ ; one sabre-belt, value I -; total value of articles lost (or spoiled), $ . This at , , on the — ^th day of , 189 — Article 18. (laying a duty or imposition.) Charge. — Laying an imposition, in violation of the 18th Article of War. Specification. — In that Major T Y , — th Eegiment of Artillery, TJ. S. Army, being in command of the post of , , did , with- out authority and for his private advantage, require one E H , a civilian engaged in bringing fruit and vegetables into the said post, for the use of the soldiers serving thereat, to pay over to him, the said Major T Y , a sum of money, to wit, twenty-five dollars ($35.00), for the privi- lege of bringing said articles into the said post for the use of the soldiers constituting the garrison of the same. ' This at , , on the — th day of , 189 — . ' Tbis Article contemplates two distinct offenses: (1) Laying a duty or imposition upon the bringing in of victuuls, etc.; (2) Being interested in the sale of provisions, and ifixe like. The first offense may be committed by a commanding officer who without proper authority lays a duty or imposition upon articles of the kind described which are brought into a garrison for the use of the soldiers, and it is not necessary to allege or 648 APPENDIX F. I Article 18. (being inteeested in the sale of articles.) Charge. — Being interested in the sale of liquors, in violation of the 18th Article of War. Specification. — In that Captain B G , — th Eegiment of Infan- try, U. S. Army, commanding Fort , , did exact and receive from one S T , a civilian (or from a person, or persons, acting in his behalf), a sum of money, to wit, one hundred and ten dollars (1110.00), in consideration of his having allowed (or allowing) the said S T (or persons acting in his interest and behalf) to bring in and sell wine and beer for the use of the soldiers constituting the garrison of the same. This at , , on the — th day of , 189—. Article 19. Charge. — Using disrespectful words against the President of the United States. Specification. — In that Major E T , — th Eegiment of Cavalry, U. S. Army, did publicly make use of the following disrespectful words against the President of the United States, to wit (here insert the language used, exactly as uttered, if printed or published, otherwise in substance, but with sufficient precision to enable the court to determine its character). This at , . on the — th day of , 189 — . Article 30. Charge. — Disrespectful behavior toward his commanding ofBcer, in violation of the 20th Article of "War. Specification. — In that Captain T Y , — th Eegiment of Infan- try, U. S. Army, did behave himself disrespectfully toward his commanding officer. Colonel H "W , — th Eegiment of U. S. Infantry, by saying to him (here insert the disrespectful language — the exact words employed, if possible, otherwise the substance of the language used. If the disrespect consists in words or utterances, not addressed to the commanding officer of the accused, but of words used alout or referring to such commanding officer, the specification should be correspondingly modified and should read " by saying about him," or " did make use of the following language in referring to him," etc.). prove tbat such articles were brought in for the purpose of being sold, or that they were sold or otherwise disposed of. The second offense consists in being interested in the sale of the victuals, liquors, or other necessaries of life thus brought into a post, garrison, or camp for the use of the troops of the United Statfes. FORMS OF CHARGES. 649 Or, by addressing to him the following communication in writing (here insert the written communication). Or, by publishing in the , a newspaper published in , , the following article, to wit (here set forth the article as published).' This at , , on the — th day of , 189 — . Article 21. (striking a supeeiok ofmcek.) Charge. — Striking his superior officer, in violation of the 21st Article of Var. Specification. — In that Private W M , Company P, — th Eegi- ment of Cavalry, did strike his superior officer, Captain B , — th Eegiment of Cavalry, with : (here set forth, fully, the circumstances of the assault, describing the weapon or instrument used in inflicting the injury; as with the fist, or with a stick, club, firearm, sword, knife, bayonet, •etc., together with the location of the injury, and in an important case the amount of bodily harm inflicted, as causing death or the like. Should the striking be accompanied by abusive, threatening, or insulting language, such language should be embodied in the specification, preceded by the words " which action was accompanied by most abusive," or " most insulting," or " highly threatening " " language," etc.). The said Captain C B .being at the time in the execution of his office. This at , , on the — th day of , 189 — . Aeticle 21. (DRAWISTG or lifting a WEAPON.) Charge. — Drawing a sabre against his superior, in violation of the 21st Article of "War. Specification. — In that Private R G , Troop G, — th Eegiment ■of Cavalry, XT. S. Army, did draw his sabre and did raise the same against his superior officer. Lieutenant W M , — d Regiment of Cavalry, TJ. S. Army, the said Lieutenant W M being at the time in the ■execution of his office." This at , , on the — th day of , 189 — . ' Where the disrespectful conduct consists in behavior only, the particular acts or •omiPsioDs constituting such behavior are to be fully set forth and described. ' Three offenses involving either actual or intended violence are described and created in this Article: (1) Striking a superior oiHcer; (2) Drawing or lifting up a weapon against him; (3) Offering violence agaiast him. The offenses thus created have a single ■element in common — the officer against whom the violence is directed must be " in the execution of Lis office" — a status in general equivalent to that of being "on duty," in .the ordinary acceptation of that term. The first of the offenses above named, that of 650 APPENDIX F. Article 21. (offeeikg vioience to stjpekioe.) Charge. — Offering violence to his superior, in violation of the 21st Article of War. Specification. — la that Private E T ■, Company E, — th Eegi- ment of Infantry, U. S. Army, did offer violence to his superior, Lieutenant H G , — th Regiment of Infantry, the said Lieutenant H G being in the execution of his office, by (here set forth the circumstances of the assault or offer of violence ; as, by attempting to strike the superior, pointing a firearm, or shaking the fist at him, accompanied by threats or menaces; attempting to interfere with or obstruct his movements, or impeding or hindering him in the performance of his duty. If the offer to do violence be accompanied by threatening, insulting, or abusive language, the fact that such language was used should be embodied in the specifica- tion, preceded by the words " which action was accompanied by threaten- ing or highly abusive language"; if specific threats were employed, they should be incorporated in the specification, the exact language used being stated, or its substance set forth with sufficient accuracy to enable the court to determine its character and importance as an element of the offense).' This at , , on the — th day of , 189 — . Aeticle 21. (disobedience of veebal oedee.) Charge. — Disobedience of orders, in violation of the 21st Article of War. Specification. — In that Private T Y , Company G, — th Eegi- ment of Infantry, U. S. Army, having received a lawful command from his. superior officer. Second Lieutenant K T , — th Eegiment of Infan- try, to (here insert order exactly as given or transmitted, or in substance)^ did willfully disobey the said order. This at , , on the — th day of , 189—. sinking a superior officer, correspouds to the criminal offense of "assault and battery," and It is essential to its existence tlmt actual violence, it mailers not how sliglit, should be inflicted. The second constitutes a parlicular form of " assault " as that term is known to the common law ; that is, an offer of violence which stops short of the actual in- fliction of physical injury. While it was probably contemplaled in the framing of this. Article that the " weHpons" used would be those appropriate to, or such as are com- monly used in the military service, it is .sufilcient to constitute an offense under this rl-vuse of the Article if any weapon, of wliatever character, be drawn or lifted up against a superior officer. The third offense, that of offering violence to a superior officer, is more general in character than that last described, and includes all "assaults," techni- cally speaking; that is, all attempts to do violence, of whatever character, which fall short of the actual infliction of physical injury. While, as has been seen, mere abusive words Ac, not of themselves constitute an assault or offer of violence, under the terms of the Article, language of a threatening or menacing character, if accompanied by a present capacity and intention to carry the threats or menaces into effect, is chargeable under the Article equally with other offers of violence. ' See note to preceding form. FORMS OF CHARGES. 651 Article 31. (disobedience of written order.) Charge. — Disobedience of orders, iu violation of the 31st Article of War. Specification. — In that Captain G H , — d Eegiment of Cavalry, TJ. S. Army, having received from his superior officer, Colonel T R , — d Regiment of Cavalry, a lawful command in writing in the fol- lowing words and figures, to wit (here insert the order in writing), did willfully disobey the same. This at , , on the — th day of , 189 — . Article 32. (causing a mutiny.) Charge. — Causing a mutiny, in violation of the 23d Article of "War. Specification. — In that Sergeant J : L , Troop L, — th Regiment of Cavalry, U. S. Army, being present with his troop, did begin, excite, cause, and join in a mutiny against the authority of Captain H J , — th Regiment of Cavalry, commanding the said troop, by placing himself at the head of a portion of the said troop, and seizing, or causing to be seized and unlawfully imprisoned or confined, the person of Captain H J , commanding the said Troop L, — th Regiment of Cavalry. This on the North Platte River, near Sidney, Nebraska, on the — th day of , 189—. Article 33. (joining in a mutiny.)' Charge. — Joining in a mutiny, in violation of the 33d Article of "War. Specification. — In that Sergeant T R , Corporal Y H , Troop L, — th Regiment of Cavalry, TJ. S. Army, Private E T , Troop L, — th Eegiment of Cavalry, U. S. Army, Private R I , ' Where a single offense is committed by several persons, as principals or accessories, ■witb a joint intent and a common purpose, tlie offenders in their several degrees may be joined iu the charges and specifications, and may be joiutly tried. The words necessary to accomplish such joinder in the several allegations of the specitications are " ihey and each of them "—as " that A. B., 0. D., E. F., G. H., I. J., and lacli of ihem, did," . etc.; iu later references to the joint accused in the specification tliey may be referred to as " they and each of ihem " or " them and. each of tliom." The findings ;nu\ sen- tence should also be similarly framed; as for example, tlint " flie court, havinc maturely considered the evidence adduced, finds the accused A. B , U. D.. E. F., and G, H., and each of them, as follows: Of the first specification, guilty," etc.; and iu Ihe sentence "and the court does therefore sentence them [wheie ihe sentence is the same in each case] and eacli of them to be,"etc. If the sentences are not the same in all cases, each of the accused should be awarded a separate sentence.* * Accused persons will not be joined in thp same chnr^e, nor tried on joint charges, unlt'ss for con- c«rt of action in an offense. To wai'rant thp joining of several persons in the same charge, the offense must be such as requires for its commission a combination, and must have been committed iu concert, iu pursuance of a common intent. Manual fur Couits-maitial, 16, par. 6. 652 APPENDIX F. Troop L, — th Kegiment of Cavalry, etc. (here name all participaats in the mutinous act) , and each of them, while engaged in the pursuit of hostile Indians, did join in a mutiny against the authority of Captain H J , — th Kegiment of Cavalry, commanding Troop L, — th Eegiment of Cavalry, U. S. Army, and did seize or assist in seizing, and did unlawfully confine and^ restrain, or assist in confining and restraining, the person of Captain H J , — th Eegiment of Cavalry, the commanding officer o'f the said troop. This at , , on the — th day of , 189 — • Article 23. Charge.— Failing to suppress a mutiny, in violation of the 23d Article of War. Specification. — In that Sergeant E T , Troop C, — th Eegiment of Cavalry, being in charge of the herd guard of the said troop, and being present at a mutiny against the authority of Captain H J , — th Eegiment of Cavalry, commanding said troop, did fail to use his utmost endeavor to suppress the same, but did assemble the herd guard under his command and did cause the same to quit the place and vicinity of the said mutiny by conducting the herd under his charge to the grazing-grounds of the said troop. This at , , on the — th day of , 189 — . Article 24. Charge. — Disobedience of orders, in violation of the 24th Article of "War. Specification. — In that First Lieutenant T Y , — d Eegiment of Infantry, U. S. Army, being present at and participating in a serious fray in the barracks of Company D, — d Eegiment of Infantry, and having utterly failed and neglected to use the authority vested in him by law for the suppression of said fray, and having, in consequence of such participation in said fray, been ordered to his quarters in arrest by Second Lieutenant E J , — th Eegiment of Cavalry, did refuse to obey such lawful order (or to observe the arrest thus lawfully imposed.) ' This at , , on the — th day of , 189 — . ' A somewhiit extreme case is indifated in tlie form of charge above given. Tlie operation of the 24th Article is to eliminnte. in a rase of emerfirency. all distinctions of I'iink among officers in respect to the dnty of partine and qiiellinsr quarrels, frays, and disorders, and to confer upon all officers, commissioned and non commissioned, the power to arrest officers, which is in all other cases restricted by the operation of the 65th Article to commanding officers alone. The 34th Article, therefore, confers upon a senior the right to arrest an officer of inferior rnnk and, in a proper case of emergency, operaies to Muthorize an inferior to place an officer of supei'ior rank in arrest. See, also, Article 24, in the chapter entitled Thb Auticlbs of War. The 24th Article, wliile it provides a method of parting frays and quarrels and of repressing disorders, does not give to such acts the character of specific offenses or confer FORMS OF CHARGES. 653 Article 35. This Article forbids, in express terms, the use of reproachful or insulting speeches and gestures, and provides a method of procedure with a view to put an instant end to the conduct thus prohibited. The Article stops short, however, of creating a separate offense which shall be chargeable as a viola- tion of this particular Article of War. Conduct of the character which is prohibited in the Article will, if it be regarded as prejudicial to military discipline, be chargeable under the 62d Article.' Aeticlb 36." (sending a challenge.) Charge. — Sending a challenge to fight a duel, in violation of the 36tli Article of War. Specification. — In that Captain A B , — th Regiment of Infantry, U. S. Army, did send a challenge to fight a duel to Lieutenant C ■ H , — d Regiment of Artillery, U. S, Army; the said challenge being in substance a verbal invitation to repair to , , on a day named, for the purpose of giving to him, the said Captain A B , satisfaction for, an injury alleged to have been received at the hands of the said Lieu- tenant C H ; the said invitation being conveyed to the said Lieuten- ant C H by Lieutenant H M , of the Corps of Engineers. This at or near , , on or about the — th day of , 189—. Or, if the challenge be in writing, the following form may be used: "did send, or cause to be sent, to Lieutenant H C , ■ — d Regiment of Artillery, U. S. Army, a -challenge, in writing, to fight a duel, in the following words and figures, to wit: " (Here insert the written challenge.) This at , , on the — th day of , 189—. jurisiliction for their trial upon any one of the' several military trihunals. The offense of oreatins;, incitinir, or takinoj part in a quarrel, fray, or disorder, being prejudicial to military discipline, is chargeable as such under the 62d Article. The Inst clause of ths Article, however, creates a specific offense of disobedience, which is triable under the 24th Article. ' For forms of rharees, etc.. see Article 62. ' The offense of fieliting a duel is neither specifically described nor explicitly made punishable in the Articles of War. The offense committed by those who engage in a duel will be determined by the circumstances, and to some extent by the consequences, in each case. Parficipntion in a voluntnry fisrht or duel, being conduct prejudicial to military discipline, is ohireeable under the fi2d Article. If death results, the offense is by statute in most jurisdictions either murder or manslaughter. Murder being a capital offense is not triable under the 62d Article, and the offense, if chargeable as such, can only be tried by a civil court of competent jurisdiction. In time of war duelling, if it results in homicide, is chargeable under the 58th Article. 654: APPENDIX F. Akticle 26. Charge. — Accepting a challenge to fight a duel, in violation of the 26th Article of War. Specification.— In that Captain H E , — d Eegiment of Artillery, TJ. S. Army, having been challenged by Lieutenant R G , — th Eegiment of Artillery, to fight a duel (or, having received a challenge in writing to fight a duel, in the following words and figures, to wit: here insert the written challenge), did accept the same, in a verbal message sent to the said Lieutenant E G by the hands of Captain T C , — d Eegiment of Cavalry (or, did accept the same, by sending or causing to be sent to the said Captain G an acceptance of the same, in writing, in the following words and figures, to wit : here insert the written acceptance). This at , , on the — th day of . 189 — . Aeticle 27. Charge. — Suffering a person to go forth to fight a duel, in violation of the 27th Article of War, Specification. — In that Captain C D , — th Eegiment of Infan- try, being post officer of the day at Fort , , on the — th day of , 189 — , and, as such officer of the day, being the commander of the guard at the said Fort , did permit Lieutenant T H , — d Eegiment of Artillery, U. S. Army, to go forth from the said post of . , , for the purpose of fighting a duel. This at — , , on the — day of , 189—. Article 28. Charge.— Upbraiding another officer for refusing a challenge, in violation of the 28th Article of War. Specification.— In that Captain J S , — th Eegiment of Cavalry, TJ. S. Army, did upbraid and reproach Lieutenant T A , — d Eegi- ment of Artillery, for refusing to accept a challenge to fight a duel. (If the communication \>b in writing it should be inserted as indicated in the forms given under the 26th and 27th Articles of War.) This at Fort , , on the — th day of , 189—. Article 31. Charge.— Lying out of quarters, in violation of the 31st Article of War. Specification.— In that Sergeant G S , Company G, — th Eegi^ ment of Infantry, XT. S. Army, did, without leave from his superior officer. FORMS OF CHARGES. 655 lie out of his quarters at Fort , , on the night of the — th day of , 189—. This at , . (Here insert the place at which the offense was committed.) Article 33. Charge. — Absence without leave, in violation of the 33d Article of War. Specification. — In that Private F H , Battery D, — th Eegiment of Artillery, U. S. Army, did absent himself from his company, without leave from his commanding officer, from — a.m. on th, 1893, to — P.M. on th, 1893.' This at , . Article 83. (overstaying pass.) Charge. — Absence without leave, in violation of the 33d Article of War. Specification.^ — In that Private P K , Light Battery D, — th Eegiment of Artillery, U. S. Army, having received permission to be absent from his battery from 9 a.m. August 3d, 1896, until 3 p.m. August 3d, 1896, did fail to return at the expiration of said permission, and did absent himself from his company, without leave from his commanding officer, from 3 P.M. August 3d, 1896, until 3 a.m. August 4th, 1896. This at or near , . Article 33. Charge. — Palling to repair to place of rendezvous, in violation of the 33d Article of War. Specification. — In that Private W H , Company Gr, — th Eegi- ment of Infantry, U. S. Army, not being prevented by sickness or other necessity, did fail to repair to the place of rendezvous appointed by his com- manding officer, Captain W S , — th Regiment of Infantry, U. S. Army, for the retreat roll-call of his company. This at , , on the — th day of , 189 — . Article 34. Charge. — Being found- one mile (or more than one mile) from camp, "without leave in writing from his commanding officer, in violation of the 34th Article of War. Specification. — In that Private E R , Company B, — th Regi- ment of Infantry, U. S. Army, was found at , one mile (or more ' It will be obsei've'.i that the offense here des; ribed can be committed by enlisted men only. Absence without leave, in whatever form it may assume, is, if committed by a commissioned officer, chargeable under the 62d Article. 656 APPENDIX F. than one mile) from camp, without leave in writing from his commanding officer. This at , , on the — th day of , 189 — . Article 35. Charge. — Failing to retire to his tent at the beating of retreat, in viola- tion of the 35th Article of War. Specification. — In that Private L G , Company — , — th Eegi- ment of Infantry, U. S. Army, did fail to retire to his tent in the camp of his company on the North Fork of the Eepnblican Eiver, Kansas, at the beating of retreat on the — th day of , 189 — . This at . Article 36. (hirhitg another to do duty.) Charge. — Hiring another to do his duty, in violation of the 36th Article of War. Specification. — In that Private T M , Company D, — th Eegi- ment of Infantry, U. S. Army, having been regularly detailed as a member of the kitchen police of his company, did hire Private C K , Com- pany D, — th Eegiment of Infantry, U. S. Army, to do his duty for him, as a member of the said kitchen police, in consideration of the sum of one dollar paid to the said Private C K . i This at Fort , , on the — th day of , 189 — . Article 36. (bbikg hired to do duty.) Charge. — Being hired to do duty, in violation of the 36th Article of War. Specification. — In that Private C K , Company D, — th Eegi- ment of Infantry, U. S. Army,, having agreed with Private T M , Company D, — th Eegiment of Infantry, U. S. Army, in consideration of the sum of one dollar, to perform duty for the said Private T M as kitchen police, did perform the said duty, in pursuance of the said agree- ment with Private T M . This at Fort , , on the — th day of , 189 — . Article 37. (conkivik'g at hieing of duty.) Charge. — Conniving at hiring of duty, in violation of the 37th Article of War. F0BM8 OF CHARGES. 657 Specification. — In that Sergeant E W , Company D, — th Kegi- ment of Infantry, U. S. Army, being in charge of the company mess, did connive at an unlawful hiring by authorizing Private T M , Company D, — th Regiment of Infantry, to agree with Private C K , Company D, — th Regiment of Infantry, to perform his duty as a member of the kitchen police of the said Company D, — th Regiment of Infantry, which duty was actually performed by the said Private C K in pursuance of such unlawful agreement. This at Fort , , on the — th day of , 189—. Akttclb 37. (allowing hiring or duty.) Charge. — Allowing hiring of duty, in violation of the 37th Article of War. Specification. — In that Captain N Y , commanding Company D, ' — th Regiment of Infantry, U. S. Army, having been informed, officially, by First Sergeant G- A , Company D, — th Regiment of Infantry, that the practice of hiring duty existed among the enlisted men of Company D, — th Regiment of Infantry, and it having further been officially reported to him, by Sergeant T U , that, upon at least one occasion, Private T M , of the said company, had hired Private C K to do duty for him as a member of the kitchen police, did fail to put a stop to the said practice, but, knowing of its existence, did allow it to continue. This at Fort , , on the — th day of , 189—. Aeticlb 38. (drunk on duty as commanding officer.) Charge. — Drunkenness on duty, in violation of the 38th Article of War. Specification. — In that Major T R , — d Regiment of Artillery, TJ. S. Army, being in command of the military post of Fort , , did become drunk.' This at Fort : — •, , on the — th day of , 189 — . ' The offense tlescilbetl in this Article is the definite one of "being found dnuili on duty " — that is, discovered to be drunk wliile engaged in the performance of the particular duty set forth in the charges and specifications; as on guard, at drill inspection, parade, muster, the performance of extra or daily duty, or even at a roll call. If the accused appears at the preliminary formation for the duly, as at the formation of the guiird detail or at a formation for parade or drill, so much under the infiuence of liquor as to be incapacitated for its performance, he should not be permitted to enter upon the execution of the duty in question,* bill should be proceeded against, under the 68d Article, for appearing at such formation so much under the influence of intoxicating liquors as to be thereby incapacitated for the performance, or proper performance, of the specified duty. If, however, his condition is such as not to attract notice at the prelim- inary formation, and he is permitted to enter upon the performance of the duty, and is afterwards found to have become drunk prior to entering upon the duty, that fact will not avail in defense,* and need not be considered by the court as a mitigating cir- cumstance. * Dig. J. A. Gen., 36, par. 1; Manual for Courts-martial, 16, par. 5. 658 APPENDIX F. Aeticle 38. (drunk on duty as stjegeon, ok staff officer.) Charge. — ^Drunkenness on duty, in violation of the 38th Article of "War. Specification. — In that Captain W H , Assistant Surgeon, Medical Department, U. S. A., having been duly assigned to duty as post sur- geon at Fort , , and being ia execution of the duties of that office, did become drunk. This at Fort , , on the — th day of , 189 — . Article 38. Charge. — Drunkenness on duty, in violation of the 38th Article of War. Specification. — In that Private W E , Company F, — th Regiment of Infantry, TJ. S. Army, while on duty (or, being on duty) as a member of the post guard (or, while on duty as stable guard ; or while at drill, etc.), was found drunk.' This at Fort , , on the — th day of , 189 — . Article 39. (sleeping on POST.) Charge. — Sleeping on post, in violation of the 39th Article of War. Specification. — In that Private E Y , Troop D, — th Regiment of Cavalry, U. S. Army, being on duty as a member of the post guard (or stable guard; or camp guard ; or outpost or picket guard, as the case may be), and having been duly posted as a sentinel, was found sleeping upon his post.' This at — o'clock p.m., on the — th day of , 189 — . Article 39. (leaving post.) Charge. — Leaving post, in violation of the 39th Article of War. Specification. — In that Private E N , Company G, — th Regiment of Infantry, U. S. Army, being a member of the post guard (or camp or stable guard, etc.), and having been duly posted as a sentinel, did leave his post before he was regularly relieved. This at Fort , , at — A.M., on the — ^th day of , 189—. ' The form sometimes used in charging this offense, that the accused was "regularly- detailed " as a member of a particular guard, though correct, is unnecessary, the regularity of the detail not being essential as an allegation in the specification. F0BM8 OF CEAB0E8. 669 Article 40. Charge. — Quitting his guard, in violation of the 40th Article of War. Specifieation. — In that Corporal G H , Light Battery G, — th Eegiment of Artillery, U. S. Army, being a member of the post (stable or picket) guard (or, being on guard), did, without urgent necessity, quit his guard without leave from his superior oflELcer. This at Fort , , on the — th day of , 189—. Article 41. Charge. — Creating (or occasioning) a false alarm, in violation of the 41st Article of War. Specification. — In that Sergeant R T , Troop P, — ^th Regiment of Cavalry, U. S. Army, did create a false alarm in camp by causing the "general " to be sounded, without authority. This in the camp of a detachment of the — th Eegiment of Cavalry, on the North Pork of the Canadian River, Texas, on the — th day of , 189—. Article 42. (cowardice, misbehavior, etc.) Charge. — Misbehavior before the enemy, in violation of the 42d Article 'of War. Specification. — In that Captain R , — th Regiment of Cavalry, TJ. S. Army, being in command of Troop A, — th Regiment of Cavalry, and engaged in a reconnaissance (or, "conducting a reconnaissance") against the enemy, did misbehave himself by retiring from the position occupied by his troop, in contact with the enemy (or did run away from the position occupied by his command, etc.), to a safe position in the rear, from which it was impossible for him to direct the movements of his command in its operations against the enemy. This at , , on the — th day of , 189 — . Article 42. (abandoning a post, etc.) Charge. — Shamefully abandoning a post, in violation of the 43d Article of War. Specification. — In that Major W B , — th Eegiment of Infantry, U. S. Army, having been duly assigned to command the cantonment of , a most important and critically situated post, with instructions to resolutely defend the same (or, to defend the same until relieved; or, to 660 APPENDIX F. defend the same to the last extremity), did, in violation of his duty and of the trust reposed in him, shamefully abandon the post which he was com- manded to defend, by moving his command from the said cantonment, without orders, or authority from, or consultation with, superior military authority. This at Cantonment , , on the — th day of , 189—. Article 43. Charge. — Compelling a surrender, in violation of the 43d Article of "War.' Specification. — In that Captain H E , commanding Company A, — ^th Eegiment of Infantry, U. S. Army; Captain T E , command- ing Company C, — th Eegiment of Infantry, U. S. Army; Captain F - W , commanding Company D, — th Eegiment of Infantry, U. S. Army; and First Lieutenant C Y , commanding Light Battery D, — th Eegiment of Artillery, U. S. Army, they and each of them, being engaged, as company commanders, in the defense of the post of Fort , , which post was, at the time, besieged by the enemy, did each of them make use of violent threats and menances against Colonel H D , — th Eegiment of Infantry, U. S. Army, commanding the said post of Fort ■ , , and they and each of them did declare and say to the said Colonel D , commanding, that if the defense of the said post was continued, that they, and each of them, would withdraw their commands from the place, or places, which they and each of them had been duly assigned to defend, and did, further, violently and forcibly demand of the said commander that, unless he did, forthwith, enter into communication with the enemy, with a view to the immediate surrender of the post under his command, that they and each of them would withdraw their commands from the place which they and he had been appointed to defend (or, that they and each of them would, with force and arms, compel and require the said Colonel H D , commanding the said post, to surrender the same to the enemy), in consequence of which compulsion by force the said Colonel H D — — was compelled to surrender and did surrender the post of Fort , , to the enemy. This at Fort , , on the — th day of , 189 — . Article 44. Charge. — Making known the watchword, in violation of the 44th Article of War. ' The allegation of criminality above given is in form a joint charge. For an explanation of joint charges see note 1o Article 28 p;ige 651. ante. F0BM8 OF OHARQES. 661 Specification. — In that Sergeant F T , Company F, — th Eegi- ment of Infantry, U. S. Army, being a member of the guard, did make known the countersign to T Y , a civilian, not entitled, by the rules and discipline of war, to receive the same. This at , , on the — th day of , 189 — . Article 44. Charge. — Giving a parole different from that which he received, in violation of the 44th Article of War. Specification. — In that Captain D M , — th Eegiment of Infan- try, U. S. Army, being ofl&cer of the day at the camp of his regiment in the field, did presume to give to First Lieutenant G H , — th Eegi- ment of Infantry, U. S. Army, the oflBcer of the guard in the said camp of the — th Eegiment of Infantry, a parole differing from that furnished ofiBcially to the said Captain D M by the commanding ofiBcer of his regiment. This at , , on the — th day of , 189 — . Article 45. (relieving the EN'EMT.) Charge. — Believing the enemy, in violation of the 45th Article of War. Specification. — In that Major T G , — th Eegiment of Cavalry, U. S. Army, being in the field engaged in operations against the enemy, did relieve the said enemy with victuals by furnishing, or causing, or allowing him to be furnished with a quantity of provisions, to wit, with two thousand (2000) pounds of hard bread. This at , , on the — th day of — • , 189 — . Article 45. (harboring an enemy.) Charge. — Harboring an enemy, in violation of the 45th Article of War. Specification. — In that Major T Y , — th Eegiment of Cavalry, commanding an outpost in the presence of the enemy, did knowingly har- bor and protect an enemy, by receiving and entertaining in his camp, and afterward permitting to return to his own lines, one Captain E E , an officer in the military service of , with which the United States were at war. This at , , on the — th day of , 189 — . 662 APPENDIX F. Akticlb 46. Charge. — Corresponding with the enemy, in violation of the 46th Article of War. Specification. — In that Captain G H , — th Kegiment of Cavalry, being in command of an outpost in the presence of the enemy, did without authority send, by means of a flag of truce, a communication in writing to the commanding ofificer of the enemy in his immediate front, the said communication being in the following words and figures, to wit (here insert the written communication), and, in reply to the same, did receive from the said enemy a communication in writing, in the following words and figures, to wit (here insert the written reply). This at , on the — th day of , 189 — . Article 47. Charge. — Desertion, in violation of the' 47th Article of War. Specification. — In that Private A B , Company — , — th U. S. Infantry, a soldier in the service of the United States, " did desert the same at , on or about the • of , 18 — , and did remain absent in desertion until he was apprehended (or until he surrendered himself), at , on or about the of . 18 — . ' Article 49. Charge. — Quitting his post, on tender of resignation, in violation of the 49th Article of War. Specification. — In that Lieutenant L H , — th Eegiment of Cavalry, U. S. Army, having tendered the resignation of his commission as a first lieutenant in the — th Eegiment of Cavalry, U. S. Army, did on the — th day of , 189 — , without leave from proper authority, and prior to due notice having been received of the acceptance of the same, quit his ' Tliis form is applicnble either in case a soldier has '■ received pay" or has been " duly enlisted." In either case the "statement of service" will enable the court lo determine as to the statute of limiiation and proper punishment. See Manual for Courts-martial, page 33, par. 10. and page 53. 2 If a soldier deserls and enlists in another troop he should be charged wilh desertion under the 47ih Article, and also with " fiaudulent enlistment, to the prejudice of good order and military discipline," luider the 63d.* The specification to the latter charge should read as follows ; "In that Private A B , Company — , ^th Infantry, a soldier in the service of the United States, did. without a discharge from said regiment of infantry, fraudulently eidist in Troop , U. S. Cavalry, at , on the of . , 18 — , under the name of ." * See 50th A. W. and G. O. 57, A. G. O., 1892. For definition of " fraudulent enlistment," see Manual for Courts-martial, page 12, note 4. FORMS OF CHARGES. 663 post and proper duties, with the intent to remain permanently absent there- from. (If the absence was terminated by the arrest or surrender of the offender, add ' ' and did remain absent in desertion until , , 189 — , when he was apprehended at "; or "surrendered himself at , .") This at , . Aeticle 50. (kbceiving or entertaining a deserter.) Charge. — Enlisting a deserter, in violation of the 50th Article of War. Specification. — In that First Lieutenant J T , — th Eegiment of Infantry, U. S. Army, post recruiting officer* at Fort Y , , did enlist C H in Troop G, — th Eegiment of Cavalry, knowing the said H to be a deserter from Light Battery D, — th Eegi- ment of Artillery, U. S. Army. This at Fort , on the — th day of , 189—. Article 50. (failing to coneinb deserter, etc.) Charge. — Failing to confine deserter, in violation of the 50th Article of War. Specification. — In that First Lieutenant J T , — th Eegiment of Infantry, U. S. Army, having been informed that Private C H , an enlisted man under his command, was a deserter from Light Battery D, — th Eegiment of Artillery, U. S. Army, did wholly fail and neglect to cause the said deserter to be confined, and did also fail and neglect to give notice thereof to the corps in which the said deserter last served. This at , on the — th day of , 189 — . Article 51. (advising to desert.) Charge. — Advising desertion, in violation of the 51st Article of War. Specification. — In that Private E T , Company E, — th Eegi- ment of Infantry, U. S. Army, did advise Private F W , Company p, — th Eegiment of Infantry, to desert the military service of the United States. This at , , on the — th day of , 189 — . €6* APPENDIX F. Article 51. (pekstjading to desert.) Charge. — Persuading a soldier to desert, in violation of the 51sfc Article of War, Specification. — In that Private R Y , Company D, — th Regi- ment of Infantry, U. S. Army, did advise and persuade Private E M , Company P, — th Regiment of Infantry, a duly enlisted soldier, to desert the military service of the United States, in consequence of which advice and persuasion the said Private E M did, subsequently, to wit, on the — th day of , 189 — , desert the said militar}' service. This at , , ^on the — th day of , 189 — . Article 53. The procedure under this Article is summary in character. The offense, if committed by an officer, may have been observed by the commanding officer himself, in which case no investigation would seem to be necessary; or, it may have been brought to the attention of the commanding officer in the form of a report submitted, in the usual manner, by a commis- sioned officer of the army, in which event the matter should be made the subject of proper official inquiry. If the fact that an ofiense under the Article has been committed is substantiated by the inquiry, a statement of such fact should be submitted, by the proper commander, to a general court-martial, if such a tribunal be in session at the post. The duty of framing and administering the reprimand devolves, under the Article, on the president of the court; and is administered, in the presence of the court, at one of its regular sessions, or at a special session convened for the purpose. The record should set forth the nature and character of the offense, a% shown by the statement made to the court by the commanding officer, and a literal copy of the reprimand administered; it should also show that the accused was present during the administration of the repri- mand. The procedure in the case of an enlisted man is fully set forth in the text of the Article. Article 54. Charge. — Refusing (or omitting) to see justice done, in violation of the 54th Article of War. Specification. — In that Major J K , — th Regiment of Infantry, U. S. Army, being in command of a detachment of troops of the United States Army on the march, and complaint having been duly made to him, by (or in behalf of) A B , a citizen of the United States, that cer- FORMS OF CHARGES. 665 tain members of his command, to wit: (the offenders should be named and identified, if practicable, otherwise the specification should allege that the offenders were "to the complainant unknown") had beaten, robbed, and otherwise ill-treated him, did wholly fail and omit (or did refuse) to see justice done to the said complainant (or reparation made to the said com- plainant). This at , , on the — th day of , 189 — . Aeticle 55. (committing waste.) Charge. — Committing waste, in violation of the 55th Article of War. Specification. — In that Sergeant T Y , Troop A, — th Eegiment of Cavalry, U. S. Army, being in command of a detachment of the — th Regiment of Cavalry, acting as train-guard, did commit waste in an inclosure belonging to A B. C , an inhabitant of the United States, by cutting down and destroying a quantity of standing timber in the said inclosure, the said waste not being committed by the order of a general officer commanding a separate army in the field. This at , , on the — th day of , 189 — . Article 55. (SPOLIATIOl^.) Charge. — Spoliation, in violation of the 55th Article of War. Specification. — In that Oaptaia C H — — , commanding Troop D, — th Regiment of U. S. Cavalry in the field, did commit spoil (or did despoil) the grain fields belonging to A G , an inhabitant of the United States, by causing the horses of his company to be turned into the said grain fields, and by causing the enlisted men of his command to throw down the stacks of grain in the said fields, the said spoliation not being committed by order of a general officer commanding a separate army in the field. This at , , on the — th day of , 189 — . Article 55. ^malicious destkuction.j Charge. — Malicious destruction of property, in violation of the 55th Article of War. Specification. — In that First Lieutenant C Gr , — th Regiment of Infantry, U. S. Army, being in command of a detachment of his regi- ment on outpost duty, did, without authority, enter the house of A O , an inhabitant of the United States, and did maliciously destroy, and did cause the enlisted men of his command to destroy, certain personal 666 APPENDIX F. property, belonging to the said A Gr , to wit, certain furniture, pictures, curtains, and tableware, the said destruction of property not haying been ordered by a general officer commanding a separate army in the field. This at , , on the — th day of , 189—. Aeticle 56. Charge. — Doing violence to a person bringing prorisions to the camp, in violation of the 56th Article of War. Specification. — In that Sergeant G Y , Company P, — th Regi- ment of Infantry, U. S. Army, being on duty with the camp guard of his regiment, in foreign parts, did assault and beat with his rifle one A H , 9, person bringing provisions to the camp. This at , , on the — th day of , 189 — . Article 57. Charge. — Forcing a safeguard, in violation of the 57th Article of War.- Specifieatioh. — lu that Private F R , Company I, — th Regiment of Infantry, U. S. Army, being in foreign parts (or " being at a place within the United States during rebellion against the supreme authority of the United States "), did enter the premises of A H , a person, to whom a safeguard had been furnished by Major-General G IS" , com- manding the Army of , and, having been duly informed by the said A H tliat a safeguard had been furnished him (or that the premises were protected by a safeguard), (or, " the said safeguard having been exhibited to him by the said A H "), did, in contempt of the said authority, feloniously take, steal, and carry away a quantity of grain belong- ing to the said A H , to wit, one hundred pounds of oats. This at , , on the — th day of , 189 — . Article 58. (larceny.) Charge. — Larceny, in violation of the 58th Article of War. Specification. — In that Private R Y , Company I, — th Regiment of Infantry, U. S. Army, did, in time of war (or in time of insurrection, or rebellion, etc.), feloniously steal, take, and carry away (here describe the article of personal property which was made the subject of the larceny), of the value of dollars ($ ), the property of the United States, furnished for use in the military service, (or, if belonging to a private owner " the property of F G- "). This at , , on the — th day of , 189 — . FOBMS OF CHARaSS. 667 Aetiolb 58. (bueglaet.) Charge. — Burglary, in violation of the 58th Article of War. Specification. — In that Corporal Y — — E , Company E, — th Eegi- ment of Infantry, U. S. Army, did, in time of war (or of insurrection, etc.), feloniously and burglariously break and enter the dwelling-house of E S , in the night-time, with intent to commit a felony therein — to wit, (here insert the offense, as larceny, robbery, etc.). This at , , on the — th day of , 189 — . Aeticlb 58. (eobbeet.) Charge. — Eobbery, in violation of the 68th Article o:^ "War. Specification. — In that Corporal B— - — M , Battery E, — th Eegi- ment of Artillery, U. S. Army, did, in time of war (insurrection, etc.), feloniously and forcibly take from the person (or " in the presence") of H D (here describe the article of personal property which was made the subject of the forcible taking), to the value of dollars {% ). This at ■ — , , on the — th day of , 189 — . Article 58. (aeson.) Charge. — Arson, in violation of the 58th Article of War. Specification. — In that Private T M , Troop M, — th Eegiment of Cavalry, U. S. Army, did, in time of war (insurrection, etc.), willfully, maliciously, and feloniously set fire to and burn the house (or outhouse, shed, or other outbuilding within the curtilage, or inolosure, pertaining thereto), of A ■_ B (if not occupied by the owner in fee, the premises should be described as " occupied by T Y , a tenant for years," or "a monthly tenant," as the case may be); (if the building be public property, it should be described as "a dwelling-house belonging to the United States and occupied by Captain E ■ E , — th Eegiment of Infantry, as his quarters"). This at , , on the — ;th day of , 189 — . Aeticle 58. (mayhem.) Charge. — Mayhem, in violation of the 58th Article of War. Specification. — In that Corporal T H , Light Battery B, — th Eegiment of Artillery, U. S. Army, did, in "time of war, assault Private 668 APPENDIX F. E H , Light Battery B, — th Eegiment of Artillery, with a knife, and did willfully and feloniously wound, maim, injure, and disable the said Private R H for service as a soldier. This at , , on the — th day of , 189 — . Article 58. (manslaughter. ) Charge. — Manslaughter, in violation of the 58th Article of War. Specification. — In that Private W T -, Company A, — th Eegi- ment of Infantry, U. S. Army, did, in time of war, willfully and feloniously kill one E • P , by striking and beating him on the head with his rifle, thereby causing his death (or, if death does not immediately ensue, " thereby inflicting a mortal wound upon the person of the said E P , in consequence of which" (or, "from the effects of which") " wound or injury he, the said E P , died on the — th day of , 189—"). This at , , on the — th day of , 189 — . Article 58. (murder.) Charge. — Murder, in violation of the 58 th Article of War. Specification. — In that Private R , Company D, — th Regi- ment of Infantry, U. S. Army, did, in time of war, willfully, feloniously, and with malice aforethought, murder and kill R Y , by (here set forth the manner of killing, as by shooting him with a pistol, stabbing with a sword, bayonet, dagger, etc. ; or by striking, or beating with a club, rifle, gun; or by shooting, etc., together with a description of the injury inflicted, as to its character, as mortal, etc. , its location, etc. ; or by administering poison, or by neglect to care for a person under tutelage, as a child, or minor, or a pauper or insane person, and the like), thereby causing his death ; (where death does not immediately ensue, it should be alleged that a mortal wound was inflicted, on a day certain, in consequence of which (or, from the effects of which) the injured person died on a day specified). This at , , on the — th day of , 189 — . Article 58. (assault and battery with intent to kill.) Charge. — Assault and battery with intent to kill, in violation of the 58th Article of War. Specification. — In that Private E T , Company G, — th Regi- ment of Infantry, U.S. Army, did, in time of war, make a violent assault FOimS OB' CHA110E8. 669 npon one Y G , a citizen, by shooting him with a pistol loaded with powder and ball (or, " by striking him repeatedly on the head with his sabre," etc.), with intent then and there feloniously, willfully, and with malice aforethought, to kill and murder the said Y G . This at , , on the — th day of , 189—, Article 58. EAPE. Charge. — Eape, in violation of the 58th Article of War. Specification. — In that Private T H , Troop E, — th Regiment of Cavalry, U. S. Army, did, in time of war, feloniously make an assault, and by force and violence and against her will, did ravish and carnally know one R J . This at , , on the — th day of , 189 — . Aeticle 58. (assault and battery vtith intent to commit rape.) Charge. — Assault and battery with intent to commit rape, in violation of the 58th Article of War. Specification. — In that Private E T , Battery E, — th Regiment of Artillery, U. S. Army, did, in time of war, feloniously and with force and violence, assault one M— — G , and her did beat, bruise, wound and ill-treat with intent, violently and against her will, feloniously to ravish and carnally know the said M G . This at , , on the — th day of , 189 — . Article 59. Charge. — Xeglect (or retasal) to surrender a soldier to the civil magis- trate, in violation of the 59th Article of War. Specification. — In that Major T Y , commanding the — th Regiment of Infantry, U. S. Army, application having been duly made to him, in time of peace, by (or in behalf of) R W , a citizen of the United States, for the apprehension and delivery to the civil magistrate, of Private R J , Battery D, — th Regiment of Artillery, an enlisted man under the command of the said Major T Y , charged with a violation of the law of the land, to wit, with larceny, in violation of tlie law of the State of , committed against the property of the said R W , did refuse (or willfully neglect) to deliver over the said offender to the civil magistrate (or " did refuse " or " did willfully neglect to aid the officers of justice in apprehending ") the said Private R J , charged with crime as aforesaid. This at , , on the — th day of , 189 — . 670 APPENDIX F. Article 60. (making a fraudulent claim.) Charge. — Making a fraudulent claim against the United States, in violation of the 60th Article of "War. Specification. — In that First Lieutenant G W , — th Eegiment of Infantry, U. S. Army, Acting Assistant Quartermaster, U. S. Army, at Port , did present, or did cause to be presented for payment to Captain H T , Assistant Quartermaster, U. S. Army, Depot Quartermaster at , , a claim against the United States — to wit, a pay-roll for the payment of dollars ($ ), to A B , D , E F , and G H , for services alleged to have been rendered by them as civilian employees of the United States at the post of , , during the month of September, 189 — , virhich claim was false and fraudulent, and was well known by the said First Lieutenant G AV to be false and fraudulent. This at , , on the — th day of , 189 — . Article 60. (peesexting a fraudulent claim.) Charge. — Presenting a fraudulent claim, in violation of the 60th /irticle of War. Specification. — In that First Lieutenant P F , — th Eegiment of Cavalry, U. S. Army, did prepare or cause to be prepared and did present to Colonel H D , 6th Regiment of Cavalry, for approval (or did present to Captain G K , Assistant Quartermaster, Depot Quarter- master at , , for payment) a claim against the United States, amounting to two hundred and eighty dollars ($380.00), the said claim being a voucher for the payment of certain civilian employees of the United States, at the post of Fort , , for services alleged to have been rendered during the month of September, 189 — , the said voucher being in the following words and figures, to wit: (here insert the fraudulent instrument in writing) well knowing the said claim to be false, fictitious, and fraudulent. This at , , on the — th day of , 189 — . Article 60. (coxspiring to obtain payment or allowance of claim.) Charge. — Entering into an agreement, (or conspiring) to defraud the United States, by obtaining the allowance of a fraudulent claim, in violation of the 60th Article of War. Specification. — In that First Lieutenant F P , — th Eegiment of Cavalry, U. S. Army, did enter into an agreement (or did conspire) with one W G , a citizen, to cheat and defraud the United States by FORMS OF OHABQES. 671 obtaining, or aiding and assisting to obtain, the payment or allowance of a false and fraudulent claim for services alleged to haye been rendered by E "¥ , G H , I J , K W , and W R , as civilian employees of the United States, at the post of , , j during the month of September, 189 — . This at , , on the — th day of , 189 — . Aeticle 60. Charge. — Making a false statement in writing, in violation of the 60th Article of "War. Specification. — In that First Sergeant H Y , Company D, — th Eegiment of Infantry, U. S. Army, did, for the purpose of obtaining the allowance or payment of a claim against the United States, make or cause to be made an instrument in writing purporting to be the final statement in the case of Private W S , Company D, — th Eegiment of Infantry, in the following words and figures, to wit (here insert the fraudulent instru- ment in writing), which final statement was well known by the said First Sergeant H Y to be false and fraudulent. This at , , on the — th day of , 189 — . Aeticle 60. Charge. — Signing a certificate without knowledge of its correctness, in violation of the 60th Article of War. Specification. — In that Captain D F , Assistant Quartermaster, U. S. Army Depot Quartermaster at , , being authorized as such to make and deliver receipts for property furnished for the military service, did make or cause to be made and delivered to C G , a con- tractor for furnishing forage, under a contract with the United States dated th, 189 — , a certificate to the effect that he, the said Captain D F , had received from the said contractor a quantity of forage, to wit, one hundred thousand pounds (100,000 lbs.) of corn and one hundred and fifty thousand pounds (150,000 lbs.) of oats, for the use of the said military service, which certificate was given by the said Captain D F without having full knowledge of the truth of the statements therein contained, and with intent to defraud the United States. This at , , on the — th day of , 189 — . Article 60. (making shoet payment.)' Charge. — Making a false payment, in violation of the 60th Article of War. ' Where a disbursing officer having caused a creditor of the United States to sign a receipt in blunk paid him a less sum than was due him, and afterwards inserted the. 672 APPENDIX F. Specification. — In that Captain G H , as Assistant Quarter- master, U. S. Army, Post Quartermaster at Fort , , and as such being in charge and custody of certain money and property of the United States furnished and intended for the military service thereof, did make and deliver or cause to be made and delivered to R H , a contractor for the supply of forage at the said post of , a voucher purporting to account for the purchase of a quantity of forage, to wit, one hundred tons of hay, amounting to eight hundred dollars ($800.00), and did cause and require the said R H to sign a receipt attached to and forming a part of the said voucher in the following words and figures, to wit (here insert the receipt), the said receipt purporting to be given for the payment of eight hundred dollars ($800.00), which receipt was false, in that the sum of five hundred dollars only was actually paid to and received by the said R H , in consideration of the delivery to the United States of the stores aforesaid. This at Port , , on the — th day of , 189—. Article 60. (purchasing AMMUlflTIOlir, ETC.)' Charge. — Purchasing ammunition, in violation of the 60th Article of War. Specification. — In that Corporal T G , Company G, — th Regi- ment of Cavalry, did, without authority, purchase from Private B R , Company A, — th Regiment of Infantry, a quantity of ammunition, to wit, one hundred and fifty (150) rounds of carbine cartridges, calibre 45, the said ammunition being the property of the United States, for which Captain P K , — th Regiment of Infantry, was responsible, and did give to the said Private E R in payment therefor the sum of one true amount due in the receipt so as to olitaiu credit with the United States for the greater sum. held that he wiis chargeable with the offense defined in the 7lh paragraph of this Article. Dig. J. A. Gen , 5fi, par. 5. Where iiii ofBcer by collusion with a contractor who had contracted for the delivery of military .supplies received for a pecnniary rorsideration from the latter a less amount of supplies tlian the United Stales was entitled to under the contract, wliile at the same time giviuff him a vouolier ciTlifying on its face the delivery of the whole amount, helct that such ofBcer wns chargeable with an offense of the class defined in IheSlh paragraph of this Article. Ibid., par. 6. Where an ofHcer allowed to an enlisted man and paid to him out of cctain public funds consisting of the proceeds of a public sale of condemned quarterma<^ter stores an amount of ten per centum on the total of such proceeds as a compensation for llie ser- vices of such man as auctioneer at the sale, held that such payment was i'legal and unau- thorized.* and constituted an embezzlement of public money chargeable under the 60lb or the 62d Article. Ibid., 60, par. 30. ' The unlawful sale or purchase of arms, ammunition, or equipments not issued to enlisted men as a part of their equipment for service should be charged under the 60th Article. * So, also, held by the Second Comptroller of the Treasury in the same case. See opinion published in arc. No. 3 (H. A.), 1894. FORMS OF 0HAB0E8. 673 dollar and fifty cents ($1.50), -which sale was fraudulent, the said ammu- nition being furnished to Private E E ^ Company A, — th Regi- ment of Infantry, for use in the military service, and he having no lawful right to dispose of the same. This at , , on the — th day of , 189 — . Aeticle 60. (embezzlement.)' Charge. — Embezzlement, in violation of the 60th Article of War. Specification. — In that Captain G L , Commissary of Subsist- ence, U. S. Army, Depot Commissary of Subsistence at , , having in his oificial capacity as such depot commissary of subsistence received officially the sum of one hundred and eighty dollars ($180.00), moneys of the United States (here state the source from which the funds were received, as from sales to officers, sales at auction, and the like), fur- nished and intended for the military service thereof, did fraudulently, unlawfully, and feloniously convert to his own use and did embezzle the same. (Or " did unlawfully and wholly fail to account to the United States for the said sum or any part thereof, but did convert the same to his own use.") This at , , on the — th day of , 189 — . Article 60. (misapplication. ) Charge. — Misapplication of public property, in violation of the 60th Article of War. ' In a case of embezzlement of public funds* or property charged under t-his Article it is not necessary to allege in terms or to prove an intent to defraud tlie United States. It is the act of legal embezzlement which is made the ofEense, irrespective of the purpose or motive of such act. Dig. J. A. Gen., 56, par. 7. See, also, par. 9, ibid. In order to delerraine whether certain acts or conduct may properly be charged as constituting embezzlement of public money under the 9tli paragraph of this Article, the sections of the Revised Statutes, especially those contained in Chapter 6 of Title LXX, may properly be recurred to. Acts here specilii'd as constituting embezzlements in law may, when committed by officers of the Army, be clmrged as embezzlements under this Article, and the rules of evidence established by these sections may also be applied where apposite to military ca.ses f But as to the penalties prescribed in the same, these, though useful as ijoiiig to indicate a reasonable measure of punisliment when imprison- ment or fine is proposed to be adjudged, are of course in no respect obligatory upon military tribunals, and any approved military penalty or penalties, such as dismissal, suspension, etc., may be imposed by courts-martial upon conviction of embezzlement, either alone or in connection with imprisonment or fine. So a term of confinement or a fine (or forfeitiire of pay) in excess of tlie penalties authorized for civil offenders may legally be adjudged by such courts. Ibid., par. 8. * "All monev lawfully in the hands of a public officer, anrl for which he is accountable, is money of the United States." United States vs. Watkins. 3 Cranch r. C 441. t See cases in which embezzlements of this class were charged aeainst officers of the Army in G. O. 1, War Dept , 1861 ; G CM. O, 4.3. 86. Hdqrs. of Army, 1868; do. 21, War Dept., 1871 : do. 87, 34, id., 1878: do. 81, id., 1874; do. 52, Hdqrs. of Army, 1877. 674 APPMNDIX F. Specification. — lu that First Lieutenant K T , — th Eegiment of Infantry, U. S. Army, being on duty as Post Quartermaster at Fort , , and having in his'capacity as such post quartermaster received a quantity of lumber (to wit, eight hundred feet), the property of the United States, furnished for the use of the military service thereof, did knowingly and willfully misappropriate the same by causing it to be manu- factured into articles of household furniture for the personal use of the officers serving at Fort (or, " did knowingly and wilfully convert a portion of the same, to wit, three hundred feet, more or less, to his own use by causing it to be manufactured into articles of furniture for his personal use). This at Fort , , on the — th day of , 189—, Article 60. (pledging goveknmbnt peopertt.) Charge. — Receiving arms in pledge, in violation of the 60th Article of War. Specification. — In that Sergeant R W , Light Battery D, — th Regiment of Artillery, did receive from Private R F , Troop E, — th Regiment of U. S. Cavalry, one Colb's revolver, pattern of 1894, in pledge for the payment of a loan of two dollars and fifty ceubs ($2.50), made by him to the said Private R F , the said revolver being the property of the United States, issued to him for use in the military service, and for which Captain F Y , — th U. S. Cavalry, was responsible, and which the said Private R F had no lawful right to pledge. This at , , on the — th day of , 189 — . Article 61.' Charge. — Conduct unbecoming an officer and gentleman, in violation of the 61st Article of War. Specification.- — In that Captain R Y , Subsistence Department, ' To constitute au ofEeiise uuder this Article iLe conduct need not be "scandalous iind infamous." These words, contained in the original Article of ITYS, were dropped in the form adopted In 1806. Nor is it essential that tlie act should compromise the liOTior of the officer* It is only necessary that the conduct should be such as is at once dis- graceful or disreputable, and manifestly unbefitting both an officer of the Army and a gentleman. ■)■ An act, however, which is only slightly discreditable is not in practice made the subject of a charge under this Article. Tlie Article, in making tlie punish- ment of dismissal imperative'in all cases, evidently contempl.ntes that the conduct, while unfitting the party for the society of men of a scrupulous sense of decency and honor. * G. O. 3.^. Dept. of the Missouri, 1867. + " An offlcnr ot tlie Army is bound by the law to be a gentleman." Atty.-Gen. Ciishing. 6 Opins., 417 See definitions or partial definitions of the class of offen=;es contemplated by this Article in G. O. 45 Army of the Potomac, 1864: do. 29, Dept. ot California, 1865; do. 7, Dept. of the Lakes, 1872; G. C. M. O. 69, Dept. of the East, 1870; do. 41, Hdqrs. of Army, 1879. FORMS OF OHARGES. 675 U. S. Army, did (here set forth, the facts constituting the alleged violation of the Article). This at , , on the — th day of — -» 189 — . shall exliibit him as unworthy to hold a commission in the Army. Dig. J. A. Gen., 61, par. 1 . The following acts committed in a particular case Tield to be offenses within this Article : preferring false accusations against an officer; attempting to induce an officer to join in a fraud upon the United States; attempt at subornation of perjury. lUd., 63, par. 3. Knowingly making to a superior a false official report, held chargeable under this Arlicle. So of a deliberately false official certificate as to the truth or correctness of an official voucher, roll, return, etc. So of any deliberately false official statement, written or verbal, of a materiiil character. Ibid., par. 3. The violation by an officer of a promise or pledge on honor, given by him to a superior in consideration of the withdrawal by the latter of charges preferred fordrunk- enuess. Ibid., 63, par. 6. Engaging when intoxicated iu a fight withanolher officer in the billiard-room at a post-trader's establishment in the presence of other officers and of civil- ians, lield an offense within this Article. So held of an entraging in. a disorderly and violent altercatiou and fight with smother (.fficer iu a public place at a military post in sight of officers and soldiers. So held of an exhibition of himself by-au officer in a pub- lic place in a grossly drunken condition. Ibid., 63, par. 8. Gambling with enlisted ■men iu a public place, held an offense within this Article. And so of frequenting in uniform a disreputable gambling-house and gambling witli gamesters. Ibid., par. 9. To justify a charge under this Article it is not necessary that the act or conduct of the officer should be imrnedialely connected with or thoTild AVcc% afltct the military service. It is sufficient that it is morally wrong and of such a nature that, while dishon- oring or disgracing him as a gentleman, it compromises his character and position as an officer of the Army.* Ibid., par. 10. Thus, though a mere neglect on the part of an officer to satisfy his private pecuniary o'^ligations will not ordinarily furnish sufficient ground for chaigts against him, yet .where the debt has been dishonorably incurred— as where money has been borrowed under false promises or representations as to payment or security, or where the non-pay- ment has'been accompanied by such circnmstiinres of fri(\:d, deceit, evasion, denial of indebtedness, etc., as to amount to dishonorable conduct— the continued nonpayment in connection with the facts or circumstances rendering it dishonor: ble may properly be deemed to constitute an offense chargeable under this Article. -f- 7Szd., par. 11. The following acts held to constitute offenses under this Arlicle : fraudulently pro- curing a divorce from his wife by an officer; Jailure on the part of an officer to support his wife and child without adequate excuse therefor; procuring or allowing h'mself by a retired officer to be placed by legal proceedings undtr a conservator as a habitual drunkard. Ibid., 65, par. 20. The use of abusive language toward a commanding officer may constitute an offense under this Article. Ibid., par. 31. The duplication of a " pay-roll " or claim for monthly pay is always an offense under this Article.^: It is no defense that the transfer was made before the fay was actually due and payable, i.e., before the end of the month. While such a transfer may be inoperiitive in view of par. 1300. A. R. of 1895, in so far as that the Government may refuse to recoffnize it, it is valid as between the officer and the party, and to allow the former to shelter himself behind the regulation would be to permit him to take advan- tage of his own wrongful and fraudulent act. Ibid., par. 33. It has also been held that a continued nesrlect without adeq'iafe excuse to satisfy a pecuniary obligation long over- due after specific nssiiiances given of speedy payment was a dishonorable act constitut- ing an offense under this Article.§ Ibid., 66. par. 26. * See. also, G-. C. IVr. O. 27, A. G. O., 1888; 8 ibid., 1890; G. O. 106, A. G. O., 1893; 66 id., 1894. t Cases of ofiftcers made amenalile to trial liy court-martial under thiaArticIe for the non-fulfilment of pecuniary ohUp:ariOMS to other officers, enlisted men. post-traders, and civilians are found in the fol- lowing General Orders of the War Dept. and Hriqrs, of Army: No. 87 of 1866; do. 3, S6, 64 of 1869; do. l.'iof 1870; do. 17of IRTl; do. 28, 46 of 187^; do. 10 of 187.3; do 25,50, 68, 83 of 1874; do.25of 1876; do. 100 of 1876; do. 46 of 1877. See, also, G. C. IVf. O. 27, A. G. O., 1888; 3 iUd., 1889; 86 id., 1891 ; G. O. 66, 66, and 106, A G. O.. 1893; S3 id., 1894; 80 id., 1896; 38 id.. 1896. ' t Pee G. C. M. O. 27, A. G. O., 1888; 20 ibid.. 1890; G. C. M. O. 8, A. G. O., 1893. § See the recent ruling to a similar effect by the Supreme Court in Fletcher vs. U. S., 148 tJ. S., 91, 93; also the same case in 86 Ct. CI., 541. 676 APPENDIX F. Akticle 62.' Charge. — Neglect of duty, in violation of the G2d Article of War. Specification. — In that First Lieutenant K L , — th Regiment of Artillery, U. S. Army, being ofBcer of the day at Fort , , did wholly fail and neglect to inspect the guard under his charge, after midnight, as required by paragraph , of the authorized Manual of Guard Duty." This at Fort , , on the — th day of , 189 — . Aeticle 62. Charge. — Creating a disorder (or " provoking a quarrel "), in violation of the 63d Article of War. Specification. — In that Private T H , Light Battery B, — th Eegiment of Artillery, IT. S. Army, did create a disorder (or provoke a quarrel) in the quarters of Light Battery E, — th Eegiment of Artillery, by (here set forth the acts or words which caused the disorder or provoked the quarrel). This at , , on the — th day of , 189 — . Article 63. Charge. — Absence without leave, in violation of the 63d Article of War. Specification. — In that Captain G K , 3d Eegiment of Artillery, IT. S. Army, did absent himself from his company and duty, without ' For forms of charges in the ciise of certain crimes at common law, such as larceny, burglary, mayhem, etc., see the 58th Article. For the conditions to be fulfilled by an ofEense in order to authorize its trial under this Article, see Dig. J. A. Gen., 67, pars. 1 and 3. '' A crime, disorder, or neglect cognizable under this Article may be charged either by its name simply as "larceny," " drunkenness," " neglect of duty," etc., or by its name with the addition of ihe words "to the prejudice of good order and military discipline," or simply iis "conduct to the prejudice of good order and military discipline," or as " violation of the 62d Article of "War." It is immaterial in which form the charge is expressed, provided the specification sets forth facts constituting an act prima fade prejudicial to good order and military discipline. Whenever the charge and specifica- tion taken together make out a statement of an act clearly thus prejiidiciiil, etc, the pleading will be regarded as substantially sufficient under this general Article. Dig. J. A. Gen., 72, par. 8. A charge of "conduct to the prejudice." etc., with n specification pelting forth merely trials and convictions of the accused for previous oSenses is not a pleading of an offense under this Article or of any military offense. So of a charge of "habitual drunkenness to the prejudice," etc., with a specification setting forth instances in which the accused has been sentenced for acts of drunkenness. Such charges indeed are in contiavention of the principle that a party shall not be twice tried for the same offense. So, a specification under the charge of " conduct to the prejudice," etc.. which sets forth not a distinct offense, but simply the result of an ageregation of similar offenses, is insufiicient in law. Where the specifications to such a charge in a case of an officer set forth that the accused was " frequently" drunk, "'frequently " absented himself with- out authority from his command, etc., Jield tliat these specifications were properly struck out by the court on the motion of the accused. In such a case the only correct plead- ing is a general charge under this Article, with specificntions setting forth, each sepa- rately, some particular and specific instance of ofEense. Ibid., par. 9. F0BM8 OF CHARGES. 671 authority, from a.m., th, 189 — , until p.m., on — th, 189—. This at , . Aeticle 62. (making use of eepeoachful speeches, etc.) Charge. — Making use of reproachful speeches or gestures, in violation of the 62d Article of War. Specification. — In that Corporal H E , Troop D, — th Eegiment of Cavalry, U. S. Army, did address the following reproachful (or " provok- ing ") speeches (or gestures) to Private G Y :, Troop D, — th Eegi- ment of Cavalry (here insert the language used, literally or in substance), ,or did make use of provoking gestures toward Private Gr Y , Troop D, — th Eegiment of Cavalry, by (here describe the gestures or other provoking conduct). This at , , on the, — th day of , 189 — . Aeticle 62. (neglect of duty.) Charge. — I^eglect of duty, to the prejudice of good order and military discipline. Specification. — In that Private A B , Co. , — th U. S. Infantry, being on duty as , and it being his duty as such to , did fail and neglect to perform said duty. This at , , on the — th day of , 189 — . Aeticle 62. (PEEJUET. ) Charge. — Perjury,' to the prejudice of good order and military dis- cipline. Specification. — In that Private A B , Co. , — th U. S. Infantry, having been duly sworn, at his own request, as a witness in his own defense before a court-martial, convened at , by order No. , dated , 189 — , for his trial, did willfully, falsely, and corruptly testify as follows : 1 " Peijury before courts-martial is by statute made indictable in most jurisdictions ; but eveu when a slatute does not apply, the wciglit of autbority is that it is perjury at common law." (Wharton, Crim. Law, § 1359.) It is a statutory crime under section 5393, Eevised Statutes of the United States. So tliat false swearing before a court- martial, if it possesses the other elements of perjury, is perjury, hnd can be tri"d as such by onurt-marlial under the 62d Article of War. The rules of evidence in regard to per- jury will tlien apply. When any of the elements of perjury are lackinsr, the offense will properly be charged as "false swearing," e.g., when the matter is not material to the issue. Manual for Courts-martial, 116. See, also, Dig. J. A. Gen., pp. 585, 686. ^*^ APPENDIX F. Question by J udge-adyocate: ? Answer: . Which testimony was false in that (specif y in what respects), and which testimony was known by him, the said A- — B , to be false, was material to the issue then being tried, and was given with intent to deceive the court. This at , , on the — th day of , 189—.' Article 62. (rkaudt7lent enlistment.) Charge.— Fraudulent enlistment, in violation of the 62d Article of "War. Specification.— In that Private A B , Co. , — th Infantry, a soldier in the service of the United States, did, without a discharge from said regiment of infantry, fraudulently enlist in Troop , — th U. S. Cavalry, at , on the — th day of , 189—, under the name ofC D .' Article 62. (fraudulent enlistment.) Charge. — Fraudulent enlistment, in violation of the 62d Article of War.' Specification. — In that Private A B , Co. , th IT. S. Infantry, did, at , on the — th day of , 189—, fraudulently enlist as a soldier in the service of the United States, by falsely representing that he had never been discharged from the United States service by sen- tence of a military court and by deliberately and willfully concealing from the recruiting officer, , the fact of his dishonorable discharge from ■ , on , pursuant to sentence of court-martial ; and that he has at , since said enlistment, received pay and allowances thereunder. Or, Specification. — In that Private A B , Co. , — th U. S. Infantry, did, at , on the — th day of -, 189 — , he being a minor, fraudulentlv enlist as a soldier in the service of the United States by falsely representing himself to be over 21 years, to wit, years and , months of age ; and that he has at , since said enlistment, received pay and allowances thereunder. ' For forms of charges in other crimes, see the 58th Article, supra. ' If a soldier deserts and enlists in another troop he should be charged with desertion under the 47th Article and also with " fraudulent enlistment to the prejudice of good order and military discipline " under the 63d.* ' This form should be used when the person oflending is a citizen and the fraud alleged was committed at enlistment. ♦ See Article 50, and G. O. 57, A. G. O., 1892. FORMS OP CEABOES. 679 Aeticle 63. (drunkenness, etc.) Charge. — Drunkenness and disorderly conduct, to the prejudice of good order and military discipline. Specification. — In that Private A B , Co. , — th U. S. Infantry, was drunk and disorderly in . This at , , about , on the — th day of , 189—, Article 62. (neglect of duty.) Charge. — Suffering a prisoner to escape, to the prejudice of good order and military discipline. Specification. — In that Private A B , Co. , — th tJ. S. Infantry, while on duty as a sentinel, did, through neglect, suffer Private C D , Co. , — th II. S. Infantry, a prisoner under his charge, , to escape. This at , — , on the — th day of , 189 — . Article 65. (breach of arrest, in quarters.) Charge. — Breach of arrest, in violation of the 65th Article of War. Specification. — In that Captain T E , — th Regiment of Artil- lery, U. S. Army, having been lawfully placed in arrest by his commanding ofiRcer, Major E C , — th Regiment of Artillery, did, without au- thority (or ' ' not having been released from such arrest by competent au- thority"), leave his quarters (or tent), and did visit (here specify the place visited by the accused). This at , on the — th day of , 189 — . Article 65. (breach oe arrest, on the march.) Charge. — Breach of arrest, in violation of the 65th Article of War. Specification.— In that First Lieutenant G T , — th Regiment of Infantry, U. S. Army, having been lawfully placed in arrest by his com- manding officer. Major T P , — tli Regiment of Infantry, and hav- ing been ordered, by the said commanding officer, to march in rear of his company, did, without authority (or " not having been released from such arrest by competent authority"), leave the place assigned him in column and did visit — ■ (or " did advance to the head of the column of his 680 APPENDIX F. regiment, " or "did fall back from the place assigned him in column and join the stragglers in rear of the command") . This at or near , , on the — th day of , 189 — . Akticle 62. (kepeoachfttl speeches ok gestures, see akticle 25.) Charge. — Conduct prejudicial to good order and military discipline, in violation of the 62d Article of War. Specification. — In that Private T R , Troop F, — th Regiment of Cavalry, did make use of reproachful speeches toward Private B D , Troop F, — th Regiment of Cavalry, by calling him a d d coward. (If gestures were used, they should be accurately described. ) This at Fort , , on the— th day of , 189—. Article 68. Charge. — Failing to report the confinement of a prisoner, in violation of the 68th Article of War. SpecificatioE. — In that First Lieutenant G S , — th Regiment of Infantry, U. S. Army, being officer of the guard at Fort , , and a prisoner — to wit, Private E Y , Troop D, — th Regiment of Cavalry — having been lawfully committed to his charge, did wholly fail and neglect, upon being relieved from duty as such officer of the guard, or within twenty-four hours after such commitment, to submit a report in writing of the said confinement to his commanding officer. Colonel T K , — th Regiment of Infantry, U. S. Army. This at Fort , , on the — th day of , 189—, Article 69. (releasing a prisoner.) Charge. — Releasing a prisoner without authority, in violation of the 69th Article of War. Specification. — In that Second Lieutenant R G , — th Regiment of Infantry, TJ. S. Army, being officer of the guard at Port , , and a prisoner, to wit. Private F W , Battery F, — th Regi- ment of Artillery, haring been lawfully committed to his custody by Captain X G , — th Regiment of Artillery, did, without authority, presume to release the said prisoner. This at Fort , , on the — th day of , 189—. FORMS OP OEABGES. 681 Article 69. (suffering a PEISOITEE TO ESCAPE.) Charge.— Suffering a prisoner to escape, in ■violation of the 69th Article -In that Second Lieutenant G I , — th Eegiment of War. Specification. of Artillery, U. S. Army, being officer of the guard at Fort , and a prisoner, to wit. Private E H , Troop D, — th Regi- ment of Cavalry, having been lavrfiilly committed to his custody, did, through negligence, suffer the said prisoner to escape. This at Fort , , on the — th day of , 189—, (being a spy.) Charge. — Being a spy, in violation of Section 1343, Revised Statutes. H , a citizen, did deliberately, will- Specification. — In that J- fuUy, secretly, and in disguise, to wit, in the dress and garb of an enlisted man of the United States Army, come within the lines of the United States Army, in time of war, for the purpose of obtaining intelligence of the said forces with intent to convey the said intelligence to the enemy, and did secretly, furtively, and covertly obtain information with respect to the said forces and did attempt to convey the same to the enemy. This at , on the — th day of , 189 — . statement of service.' Statement of service of {Required ly paragraph 927, Army Regulations.) -, Company , — th Regiment ■ FOBMEB SERVICE. Date of EDlistment. Date of Discharge. Character on Discharge. Date of present enlistment — , 189- Date of confinement under present charges (Place.) -, 189—. Commanding . (Date.) ' Required by paragraph 937, Army Regulations of 1895. 682 APPENDIX F. suegeon's eepokt on alleged deseeteb,' FOBT 18—. Sik: In compliance with paragraph 121, Army Kegulations of 1895, I have the honor to report that I have critically examined , an alleged deserter, and find him fit for service; (or) unfit for service on account of . Post Surgeon. To the Post Adjutant. ' Required by paragraph 121, Army Regulations of 1895. APPENDIX G. FORMS OF PLEAS. Plea to the Jueisdiction. General Court ma^^tial Rooms, Fort , , May —, 189— May it please the Court : The nndersigaed, W H , having heard the charges and specifi- cations read, in which it is alleged that he is a private in Company D, — th Eegiment of Cavalry, U. S. Army, says that he is not now and never has been an enlisted man in the company or regiment aforesaid, or a member of the military establishment of the United States, but that he is a citizen, not connected with the military service; and this he is ready to verify." W ~ H . EECOED OF DEOISIOK. And the court, having maturely considered the plea and statement of the accused (together with the evidence submitted in its support') and the state- ment of the jadge-advocate in opposition thereto, sustains the plea of the accused (or, " finds that the accused is not a member of the military estab- lishment of the United States), and directs that he be excused from making further answer to the charges and specifications aforesaid (or, " overrules the plea and directs that the defendant make farther answer to the charges and specifications"). ' If the plea be based upon the claim that the offense charged is not a military offense, the following form of words should be used: "says that the offense alleged against him in tlie afol-esaid charge and specification is not an offense under the — th Article of War aforesaid. Wherefore he prays judgment of the snid charge and speci- fication, and that he may be dischirged from further answer to the said charge and specification." ^ If testimony is submitted in connection with the plea, it is recorded in the usual form. The accused, having the burden of proof cast upon him by the rules of evidence, presents his testimony in support of the plea, and this is followed by testimony iu re- buttal, if any there be. The accused, having the affirmative of the issue raised by the plea, is entitled to the opening and closing address. 684 APPENDIX O. PoEMEK Acquittal or CosvicTioif. General Court-martial Rooms, Fort , , June — , 189 — . May it please the Court : The undersigned, Captain H J , — th Eegiment of Infantry, IT. S. Army, having heard the charges and specifications read, says that the United States ought not farther to prosecute the ■ — d specification of the — d cliarge against him, because on th, 189 — , he was brought before a general court-martial, convened at Fort , , by virtue of Special Orders Number 3, Headquarters Department of , dated at , , on the — th day of , 189 — , and was then aud there duly tried and lawfully convicted (or acquitted), of the ofEense charged in the charge and specification aforesaid ; and this the undersigned is ready to verify. Wherefore he prays that he may be discharged from making further answer to the — d specification of the — d charge aforesaid. H J , Captain — th Regiment of Infantry, United States Army. EECOED OF DECISION. The court having maturely considered the plea of the accused and the testimony submitted in its support,' together with the statement of the judge-advocate in opposition thereto, sustains the plea and orders that the defendant be excused from making further answer to the — d specification of the — d charge (or, if the plea be not sustained, the record should state, after the word support, " overrules the same and- directs the defendant to make further answer to the — d specification of the — d charge "). Paedoit. General CorKT-MARTiAL Rooms, FOKT , , -. , 189—. May it please the Court : The undersigned, Major T L , — th Eegiment of Infantry, U. S. Army, having heard the charges and specifications read, says that the United States ought not to prosecute the — d specification of the — d charge against him because the offense was pardoned by Brigadier-General K H , commanding the Department of the , the said pardon being contained in a letter restoring the said defendant to duty without trial, ' See note 1, page 683, ante. FORMS OF PLEAS. 685 which letter was in the following words and figures, to wit (here insert the letter) ; and this the undersigned is ready to verify. He therefore prays that he may be discharged from making further answer to the said — d specification of the — d charge aforesaid. T L , ^ Major — th Regiment of Infantry, United States Army. EECOED OF DECISIOK. The court, having maturely considered the plea of the accused (together with the evidence submitted in its support), and the statement of the judge- advocate in opposition thereto, sustains the plea and orders that the defend- ant be excused from making further answer to the — d specification of the — d charge (or if the plea be not sustained, the record should state, after the word thereto, " overrules the same and directs the defendant to make further answer to the — d specification of the — d charge"). Statute of Limitations. General Couet-mabtial Kooms, Post , , , 189—. May it please the Court : The undersigned, First Lieutenant J K f Corps of Engineers, U. S. Army, having heard the charges and specifications read, says that he ought not to be compelled to answer to the — d specification of the — d charge, because he says that the offense therein alleged was committed on the — th day of , 189 — , more than two years previous to the date of the order convening the court for his trial, upon the charge and specification aforesaid (or, "more than two years previous to the date upon which the charges against him were referred to the court for trial ") ; and this the defendant is ready to verify. "Wherefore he prays judgment that the — d specification of the — d charge be quashed. J K , First Lieutenant, Corps of Engineers, United States Army. KECOED OF DECISION. The court having maturely considered the plea and statement of the accused (together with the evidence submitted in its support), and the statement of the judge-advocate in opposition thereto, sustains the plea and directs that the said ' — d specification of the — d charge be quashed (or, " overrules the plea and directs that the accused make further answer to the — d specification of the — d charge"). 6S6 APPENDIX a. Plea in Abatement — Misnomek. GbNEKAI, CotTRT-MAETIAL KoOMS, Fort , , May —, 189—. May it please the Court : The undersigned, Private Henry Khind, Battery D, — th Kegiment of Artillery, U. S. Army, having heard the charges and specifications read,. in which he is charged by the name of Henry Eyan, alleges that his name is Henry Ehind, and that he now is and from his earliest childhood has been known by the name of Henry Khind ; and this he is ready to verify. Henkt Ehind, Private Battery D, — th Regiment of Artillery, United States Army. Plea in Abatement— Misnomer in Christian Name. General Coitrt-martial Kooms, Fort . , June — , 189 — . May it please the Court : The undersigned. Sergeant Samuel Jones, Troop F, — th Eegiment of Cavalry, U. S. Army, having heard the charges and specifications read, in which he is charged by the name of William Jones, alleges that he was baptized by the name of Samuel, towit, in the town of , coiinty of . , State of , and that he has always since his baptism been called and known by the Christian name of Samuel, and that he has hitherto never been called by the name of William as by the said charges and specifications is supposed ; and this the undersigned is ready to verify. Samuel Jones, Sergeant Troop F; — th Regiment of Cavalry, United States Army. kecoed of decision. And the court, having maturely considered the plea and statement of the accused (together with the evidence submitted in its support), and the statement of the Judge-advocate in opposition thereto, finds the true name of the defendant to be Samuel Jones. It is therefore ordered that Samuel Jones, the true name of the said defendant, be entered on the record and that all further proceedings against him be conducted in that name. .FORMS OF SENTENCES. DEATH BY SHOOTING. Porm: And the court does therefore sentence him. Private H Q ^ Company D, — th Eegiment of Infantry, to be shot to death with FORMS OF PLEAS. 687 mnsketry at such time and place as the reviewing authority may direct, two thirds of the members concurring therein. DEATH BY HAKGIK'G. And the court does therefore sentence him, Private E T , Troop D, — th Eegiment of Cavalry, to be hung by the neck until he is dead, at such time and place as the reviewing authority may direct, two thirds of the members concurring therein. DISMISSAL. And the court does therefore sentence him, Captain T Y , — th Regiment of Artillery, to be dismissed the service. DISMISSAL AND IMPEISONMEKT. And the court does therefore sentence him, Captain H- Corps of Engineers, to be dismissed the service and to be confined at hard labor in such place as the reviewing authority may direct for the period of . years. DISMISSAL AND FINE. And the court does therefore sentence him. Captain G T , Ordnance Department, to be dismissed the service, and to pay to the United States a fine of dollars, the amount of his embezzlement. ' DISMISSAL, IMPRISONMENT AND EINE. And the court does therefore sentence him. Major T E , Pay- master U. S. Army, to be "dismissed; to be imprisoned at hard labor in such place as the reviewing authority may direct for the period of ten years; and thereafter to be further imprisoned in such place as the reviewing authority may direct until he shall refund to the United States the amount of his embezzlement, dollars and cents ($ ).' REDUCTION IN RANK. And the court ,does therefore sentence him, Captain H T , Signal Department, U. S. Army, to be reduced in rank so that his name shall be placed at the foot of the list of captains in the Signal Department (or, " to be reduced in rank so that his name shall appear in the list of cap- tains in the Signal Department next below that of Captain E S "). ' This form of sentence is usually imposed in cases in which the United States has suffered a considerable pecuniary loss in consequence of the embezzlement, larceny, or misappropriation of public money or property. 2 See note to form next preceding. 688 APPENDIX Q. SUSPElfSION. And the court does therefore sentence him, Fu'st Lieutenant H — '- -, — ^th Regiment of Artillery, to be suspended from rank (or " from rank and command," or " from rank, command, and pay ") for the period of years. FOKFEITUEE OF PAT. And the court does therefore sentence him, Lieutenant-Colonel Y E , — th Eegiment of Cavalry, U. S. Army, to forfeit to the United States seventy-five dollars per month of his pay (or, " all pay except dollars per month ") for a period of months (or, " to forfeit to the United States all of his pay, except dollars per month, for a period of months"). CONFINEMENT TO LIMITS. And the court does therefore sentence him, Major T G , Ordnance Department, U. S. Army, to be confined to the limits of the United States Arsenal at , , for the period of years (or, " to the limits of the Military Reservation of Port , , for the period"), etc. EEDUCTION. * * * " to be reduced to the ranks." ' CONFINEMENT. * * * " to be confined at hard labor, under charge of the post guard (or, *' at the place where his company may be serving'"), for ( — ) days." FORFEITURE. * * * "to forfeit ( — ) dollars of his pay." ' CONFINEMENT AND FOEFEITITRE. * * * " to be confined at hard labor, under charge of the post guard, for ( — ) months, and to forfeit ( — ) dollars per month for the same period." ' ' In the Engineer, Ordnance, and Signal Departments, where privates of the first and second class are authorized, a private of the first class may be reduced to the second class, the form being " to be reduced to a second-class private " ' If it be intended that the prisoner shall change station with his company, the clause above indicated may be added: " at the plnce where his company may be serving." ' Detention of pay is no longer authorized, and the Act of June 16, 1890, providing for retention of four dollars per month of a soldier's pay during first year of enlistment •was repealed by the Act of February 13, 1895. FORMS OF PLEAS. 689 DISHONOEABLE BISCHAEGE AND BOKFBITUKB OF PAT AND ALLOWAKCES. * * * " to be dishonorably discharged the service of the United States, forfeiting all pay and allowances dae him." ' DISPONOEABLE DISCHAEGB, FOEFEITUEE OP PAT AND ALLOWANCES, AND CONFINEMENT. * * * " to be dishonorably discharged the service of the United States, forfeiting all pay and allowances due him, and to be confined at hard labor at SQch post (or in such penitentiary) as the reviewing authority may direct, for ( — ) years." If the period of confinement is less than one year, such a sentence should read: * * * "and be confined at hard labor, under charge of the post guard, for ( — ) months." " ' The clause "or to become due," so frequently added after "allowances due," in such sentences is superfluous, for the reason that the forfeiture takes effect on the date of the order promulgating the sentence. See Dig. J. A. Gen., 423, par. 20. ' See note 3, page 688, ante. APPENDIX H. FORMS OF RECORDS, EECOED OP A GENEKAL COURT-MAETIAL. FORM FOR RECORD.' Page l.» (In Margin.)* Case 1. Proceedings of a general court-martial which convened at -, pursuant to the following order : ' {Here insert a literal copy of the order appointing the court, and, follow- ing it, copies of any subsequent orders modifying the detail.) Hbadquabters Depabtmbnt of -, 189—. Special Orders ) No. . \ A general court-martial is appointed to meet at , , at — .M., on , 189 — , or as soon thereafter as practicable, for the trial of Captain E R , — th Regiment of Artillery (or, " of Captain E R , — th Regiment of Artillery, and such other persons as may be properly brought before it"), (or "of such persons as may be properly brought before it "). ' See the chapter entitled The Recoeb, and the title " Record of Proceedings " in the Manual for Co\irt5-martial. The record will be clear and legible, and if practicable, ■without erasure or interlineation. If a typewritten record is prepared, but one side of the sheet should be used. ' The paaes of the record will be numbered and margins of one inch will be left at the top, bottom, and left side of each page. Manual for Courts-martial, 119, note 1. ' "Words inclosed in parentheses ( ) or brackets [ ] are simply explanatory, and will not be copied in the record. Ibid., note 2. * " Every party tried by a general court-martial shall, upon demand thereof, made by himself or by any person in his behalf, be entitled to a copy of the proceedings and sen- tence of such court." (114tb Article of War.) Applications for copies under this Article will be addressed to the Judge-Advocate General. Par. 894, A. R. of 1895. FOBMS OF BEOOBDS. 691 DETAIL FOR THE COURT. Major , 5th Cavalry. Captain , 2d Artillery. Captain , Assistant Surgeon. 1st Lieutenant , 10th Infantry. 1st Lieutenant , 5th Cavalry. 2d Lieutenant , 2d Artillery. 2d Lieutenant , 10th Infantry. 1st Lieutenant , 5th Cavalry, judge-advocate. {If less than thirteen memlers are detailed, the order will state :) A greater number of ofl&cers cannot be assembled without manifest injury to the service. {If the case be one requiring an immediate exam.ple, the following clause should be inserted at this point :) The court is authorized to sit without regard to hours.' {In case travel is necessary, the following sentence will be added :) The journeys required in complying with this order are necessary for the public service. By command of Brigadier-General . Assistant Adjutant- General. FOKT . . , 189—. The couri met pursuant to the foregoing order at o'clock — .m.' PRESENT.' Major , 6th Cavalry. Captain , Assistant Surgeon. 1st Lieutenant , 10th Infantry. 1st Lieutenant , 5th Cavalry. 2d Lieutenant , 2d Artillery. 1st Lieutenant ,, 5th Cavalry, judge-advocate. ' "Proceediugs of trials shall be carried on only between the hours of eight in the morning and three in the afternoon, except in cases which, in the opinion of the officer appointing the court, require immediate example." 94th Article of "War. 2 In the record of the proceedings of a court-martial at its organization for the trial of a case the offlceis detailed as members and judge-advocate will be noted by name as present or absent. In the record of the proceedings of subsequent sessions tlie following form of words will be used, subject to such modifications as the facts may require : " Present, all Ihe members of the court and ihe judge-advocate." When the absence of an officer who has not qualified, or who has been relieved or excused as a member, has been accounted for, no further note will be made of it.* * JIanual for Courts-martial, p. 120; Dig. J. A. Gen , 641, par. d ; 648, par. e. 692 APPENDIX K ABSENT. Captain , 2d Artillery. 3d Lieutenant , 10th Infantry. {If the cause of absence is known, it will be recorded; if unknown, it will be so stated.)' The court then proceeded to the trial of Private , Battery — , — th U. S. Artillery, who, having been brought before the court, stated that he did not desire counsel; (or) introduced as counsel. [Repoktee.]' I was duly sworn as reporter." The order convening the court was read to the accused, and he was asked if he objected to being tried by any member present named therein; to which he replied in the negative. [Challenges.] (or) that he objected to on the following grounds: {Insert objections.) The challenged member stated : {Insert the statement of the challenged member, who should always be requested to respond to the challenge and inform the court upon its merits. Should the accused, after this statement, desire to put the challenged mem- ber upon his voir dire, the record should continue :) The accused having requested that the challenged member be sworn upon his voir dire,* was duly sworn by the judge-advocate and testified as follows:" {At the close of the examination of the member, if the court desires the testimony to be read, or if the member so requests, the record should continue :) The testimony of the challenged member was read to him, and was by him pronounced correct. {or) corrected as follows : {Insert corrections.) ' It is the duty of the judge-advocate to ascertain if possible the cause of absence. If a member is absent by order, the number and date of order will be given ; if absent sick, a surgeon's certificate of sickness and inability to attend will be furnished by the absent member and appended to the record. Manual for Courts-martial, 121, note 1. ^ To facilitate reference to the record, sub-heads entitled "reporter," "challenge," etc., are inserted and followed by vertical marginal lines. To use form in case no re- porter is employed, follow form to " reporter," and then omit as far as the vertical mar- ginal line under "reporter" extends. In like manner omit when necessary for other sub-heads. /6j(?., note 3. • The reporter must be sworn in each case. For form of oath, see p. 29, par. 4, Manual for Courts-martial. Ibid. , note 3. * For form of oath see page 29, par. 6, Manual for Courts-martial. ' The form of examination should be similar to that given for witness for theprosecution, page 694, infra. The accused should first question the member, after which the judge- advocate and court may put such questions as they may deem pertinent. Ibid., 132, note 1. FORMS OF BEC0RB8. 693 The challenged member, the accused, and judge-advocate then with- drew, and the court was closed, and on being opened the president announced in their presence that the objection of the accused was not sustained ; ' (or) that the objection was sustained. then withdrew. The accused was asked if he objected to any other member present;' to which he replied in the negative ; {or) that he objected to on the following grounds: {Insert objection in full and record as before.) The members of the court and the judge-advocate were then duly sworn.' [Ikteepretbe.] {If an interpreter is required, he should now be introduced, and sworn to the faithful performance of his duties.) [Delay.] {If delay is desired for cause known, application should now be made for a continuance under Article 93, and the proceedings of the court thereon recorded. If no delay is requested, the record should continue ;) The accused was then arraigned upon the following charges and specifi- cations : Charge I. . Specification 1st. Specification 2d. Charge II. [PiEA IN Bak.J To which the accused submitted the following special plea in bar of trial:' {or) To which the accused pleaded as follows : To the 1st specification, 1st charge: " Guilty; " (or) " Not guilty." To the second specification, 1st charge: " Guilty; " {or) " Not guilty." To the 1st charge: " Guilty; " {or) " Not guilty." To the first specification, 2d charge, etc. Sergeant John Jones, Co. , Infantry, a witness for the prosecu- tion, was duly sworn and testified as follows : ' In case of a tie vote, the motion to excuse not being sustained, the challenged mem- ber is not excused. ' Only one member at a time can be challenged, and a record of the proceedings in each case will be mnde iu the form indicated above. Manual for Courts-martial, 122, note 5 ' Whenever the same court-martial tries more than one prisoiier on separate and distinct charges, the court will be sworn at the commencement of each trial and separate proceedings in each case will be prepared. Ibid., nole 6, * If a special plea is made, the plea, the reply of the judge-advocate, and the action of the court thereon will be fully stated and recorded. If the plea is submitted in writing. It will be signed by the accused and attached to the record as an appendix. For forms of the several pleas, see Appendix G. 694 APPENDIX H. DIRECT ESAMINATIOlf. Questions by the judge-advocate: Q. Do you know the accused ? If so, state who he is. A. I do; Private , Battery , Artillery. {The succeeding questions of the judge-advocate and their answers should folloio in order.y OEOSS-EXAMINATION. Questions by the accused: Q. ? A. . {If the accused declines to cross-examine the witness, the record should state :) The accused declined to- cross-examine the witness. KE-EXAMINATION. Questions by the judge-advocate: Q. ? A. . EXAMINATION BT THE COUBT. Q. ? A. : [Objection to Question.]' Question by a member: ? To this question the accused (or party objecting) objected as follows: {Insert objection.) To which the member replied : {Insert reply.) The accused and judge-advocate withdrew and the court was closed, and on being opened the president announced in their presence that the objection was sustained, {or) was not sustained. {In the latter case the record should continue:) The question was then repeated by the judge-advocate. A. . ' The record should set forth fully all the testimony introduced upon the trial, the oral portion as nearly as practicable in the precise words of the witness. If the court should decide to expunge any part, It will not be literally expunged or onnitted from the record, but will not be thereafter considered as part of the evidence. Dig. J. A. Gen., 644, par. h. ' If a question put by a member is objected to by another member, or by the judge- advocate or the accused, and the objection is sustained, it will he recorded as a question by a member, and not answered; if the objection is not sustained, it will be recorded as a question by the court, repeated by the judge-advocate, and must be answered. If a ques- tion is objected to by any one, at any time during the trial, the above method of recording the action of the court will be followed. Manual for Courts-martial, 134, note 1. F0BM8 OF RE00MD8. 696 {If the court deems it proper to hear the testimony of the witness read, or if the ivitness request such reading, the fact will be noted in the record as follows ;') By direction of the court (or " at the request of the witness ") the testi- mony of the witness was read over to him, and was by him pronounced correct. (or) corrected as follows : ' {State corrections.) { When the testimony in lehalf of the prosecution has all been received, the record should continue :) The judge-advocate announced that the prosecution here rested. {If the court adjourns to meet the following day {or on a subsequent day), the record should continue :) The court then, at o'clock — .m., adjourned to meet at o'clock — .M., to-morrow (or at o'clock — .m., on the — th instant. C D , 1st Lieut. , Judge-Advocate. ' Fort , , 189-. The coart met, pursuant to adjournment, at o'clock, — .m. PEESENT. {If the entire membership be present the record should continue.) All the members of the court and the judge-advocate.* The accused, his counsel, and the reporter were also present. {If the proceedings of the previous day are required by the court to le read,'' the fact will be recorded in the following form :) The proceedings of were read ' and approved. {or) were corrected as follows : ' ' Tlie readiug over of the testimony to the witness after his examination has been completed is no longer required. See Circular No. 37, A. G. O. 1897; see, also, note 2, post. * If the witness finds that his testimony has been erroneously recorded, the court will permit him to malce such corrections therein as are necessary to make the testimony as recorded conform to the testimony as given. If the witness desires to modify his testimony in a material particular, the court may, in its discretion, permit him to do so; but the original testimony will not be expunged, and the matter submitted iu the way of modification or explanation will be so recorded as to show in what particulars the testi- mony as oris^inally given has been modified. See Dig. J. A. Gen., 753. par. 14. ^ The proceedings of each day are authenticated by the signature of the Judge- Advocate Paragraph 954. Army Regulations of 1895. * If there are absentees the form indicated at the beginning of the trial should be read. See note 3, piige 691, supra. ' The reading over of the testimony taken on the previous day is no longer required. See Circular No. 87. A G. O. 1897, whicli contains the requirement that, "the reading of previous proceedings and of testimony for approval will be dispensed with, unless, for special reason, such reading be considered necessary by the court." €96 APPENDIX m {In the latter case enumerate corrections, giving the page and line in which they occur.) Corporal John Smith, Co. , — th Infantry, a witness for the defense, was duly sworn and testified as follows: DIRECT EXAMINATION. Question by the judge-advocate: Do you know the accused? If so, state who he is.' A. . Questions by the accused: Q. ? A. . (27*6 examination should be conducted as incase of a witness for the prosecution, the judge-advocate cross-examining, and the accused, if he so desires, re-examining the witness.') {Should the accused wish to testify in his own lehalf, the record will con- tinue :) The accused, at his own request, was duly sworn as a witness, and testi- fied as follows : Q. ? A. . {The examination of the accused should be conducted in the same manner as that of any other witness.) {If the accused has no other witness to call, the record should continue ;) The accused had no further testimony to offer and no statement to make. {or) having no further testimony to offer, made the following verbal state- ment in his defense. {or) having no further testimony to offer, submitted a written statement in his defense, which was read to the court, and is hereto appended and marked A.° {or) requested until o'clock — .M. to prepare his defense. {If the court takes a recess during the time asked for, the record will continue :) The court then took a recess until o'clock — .m. ; at which hour the members of the court, the judge-advocate, the accused, his counsel, and the reporter resumed their seats. ' Though this is a witness for tlie defense, (he judge-advocate will ask the preliminary question for the purpose of determining his identification of the accused. '' All documents and papers made part of the proceedings, or copies of them, will be appended to the record in the order of their introduction, after the space left for the remarks of the reviewing authority, and marked in such a manner as to afford easy reference. It is not necessary to encumber a record by spreading upon it documents or other writings, or matter excluded by the court. The record should simply specify the character of the writings and the grounds upon which they were excluded by the court. Dig. J. A. Gen., 651, par. 14. FORMS OF BECOEDS. 697 {Or, if the court has other business before it, the record may continue:) The court then proceeded to other business, and at o'clock — .m. resumed the trial of this case; at which hour, etc. The accused submitted his defense, which was read to the court, and is hereto appended and marked B.' The judge-advocate submitted the case without remark. (or) replied as follows :' {Itisert reply.) (or) submitted and read to the court a written reply, which is hereto appended and marked 0. The accused and his counsel and judge-advocate then withdrew and the court was closed, and finds the accused, Private , Battery — , — th U. S. Artillery: Of the 1st specification, 1st charge: " Guilty; " (or) " Not guilty." Of the 2d specification, 1st charge: " Guilty, except the words ' ,' and of the excepted words Not guilty." Of the first charge: " Guilty; " (or) " Not guilty; " (or) " Not guilty, but guilty of, etc., ." Of the 1st specification, 3d charge, etc. [Previous Convictions wheee the Accused is Pounb Guiitt.] {If the offense is of such character as to admit of evidence of previous convictions, and the accused is found guilty, the record should continue :) The judge-advocate and accused were then recalled and the court opened ; the judge-advocate then stated that he had no evidence of pre- vious convictions to submit. {or) the judge-advocate then read the evidence of previous convictions ' hereto appended and marked D, E, etc. {If the accused has any statement to make in regard to his previous convictions, it will be recorded.) The accused and judge-advocate then withdrew and the court was closed, and sentences him, Private , Battery , — th TJ. S. Artillery, _ ■ The statement of Ihe accused, or argument in his defense, and all pleas In bar of trial or in abatement, when in writine. should he siened by the accused, referred to in the proceedings as having been submitted by him, and appended to the record, whether he is defended by counsel or not. For forms of pleas spe pp. 683-686, ante. '' Tlie iudee-advocate is entitled by usnge to sum up the rase and present an argument at the conclusion of the trialj even' though the accused declines to make an argument or to submit a statement. Pig. J. A. Geri.. 711, par. 4. ' See " Previous Convictions." p 147, supra. When the proof produced is the copy furnished to the company or other commander, in accordance with par. 932, A. R. of 1895, it will l)e returned to him and a copy of it attached to the record of the general, regimental, or garrison court trying the case. Par. 929, A. R. of 1895. ^^^ APPENDIX H. [No Peevious Convictions, oe Accused Acquitted.] [If the offense is not of such cJiaracter as to admit of evidence of pre- vious convictions, or if the accused is acquitted, the record, after the findings are stated, should continue :) And the court does therefore senteace him, etc. {or) does therefore acquit him, Private , Battery , — th U. S. Artillery. The ]udge-advocate was then recalled and the court at .m. pro- ceeded to other business. {or) adjourned until — m. , the — inst. {or) adjourned to meet at the call of the president.' {or, on completion of the trial of the last case before the court), adjourned sine die. A B , Major , President. C D , 1st Lieut. , Judge- A dvocate. {At least two blank pages will be left after the adjournment for the deci- sion and orders of the reviewing authority.) FoEM OP Beief. {The papers forming the complete record will be fastened together at the top, and the record folded in four folds, and briefed on the first fold as follows :)' Private, Co. Trial by general court-martial at ; commencing , 18 — ; ending , 18-^. President : Major , Judge-Advocate : 1st Lieut. ' The hour of adjoiiminent will be stated, unless the court is authorized to sit without regard to hours. * "When the record is completed, the judpe-advocate will forward it without delay to the convening authority. Par. 955, A. R. of 1895. F0BM8 OF RE00BD8. 699 FOHM FOE EeVISION OF EeCOED." Fort , , , 189—. The court reconvened at o'clock — .m., pursuant to the following order : {Insert copy of order.) {or) pursuant to the following indorsement {Insert copy of indorsement.) PRESENT.' ABSENT. {Insert names of absentees, and state cause of absence, if known.) The judge-advocate read to the court the foregoing order. {or) the foregoing indorsement of the convening authority. The judge-advocate then withdrew, and the court was closed and, having revoked its former findings, finds the accused, etc. {or) revokes its former sentence, and sentences the accused, etc. {or) respectfully adheres to its former findings and sentence. {or) amends the record by, etc' The judge-advocate was then recalled and the court at .m., etc. A B , Major ■ President. C D- 1st Lieut. Judge-Advocate. {The record of revision ivill be appended to the original proceedings and the whole indorsed and forwarded as before.) ' See " Revision of Recoi'd." pp. 158-160, supra. ' If tlie findings and sentence are to be considered, all the members who voted on them should be present, if possible. At lea.st five members of the conrt who noted upon the trial must, and the judge-advocate should, be present at the proceedings in revision; but it is in general neither necessary nor desirable that the accused should be present. Manual for Coiuts-mariial, p. 130, note 2. ' For method of amending the record, see p. 159, supra. This form is intended to answer the purposes of a charge sheet, which, when completed by the Summary Court and the commanding oflBcer, will become the complete record of the trial. The ofiBcer preferring the charges will enter on this form the name of the accused, the list of witnesses, and the charges as called for by the headings, together with his signature thereto; and, in proper cases, the accused will be required to sign the statement showing whether or not he consents to trial by summary court — the necessary alteration being made in the certificate if he does not consent. The case will then be submitted in the usual way for trial. Each sheet is intended for one case only, and will be given a serial number in the order of trial; and they will be bound in numerical order in books of convenient size, each case being added to the book when completed by pasting or other method, the margin at the left being intended for this purpose. Paper binding will be sufficient, a good quality of tough and heavy paper being used therefor. 701 APPENDIX I. BE CORD OF A SUMMARY COURT. FORM FOR RECORD. Record of a summary court at Orders No. , Headquarters No. of Gase- appointed by — 190- ITame, Rank, Company, and Regiment, and List of Witnesses. Witnesses: si ■3.2 Specification, with Signature of Officer Preferring Charges. .Beg't. bo a ■a a GO m a a o .2 •■3 >.2 ID > o Sentence, with Signature of Trial Officer, and Consent to Trial, if Given. I hereby con- consent to trial by Sum- mary Court on those charges. Private Go ... Action of Cora, manding Offi- cer, with Date and Signature. NoTB. — This form may be used to furnish copies of the record, the same to ba certified to be "a true copy " by the post commander or adjutant. MONTHLY REPORT OP SUMMARY-COURT CASES. Report of cases tried ly summary court at , ,for the month of , 189—. .a Name, Rank, Company, and Regiment. Synopsis of Specification. fe O tn ipon lequest of the lioard, such available troops and material as may be required by boards iu the exec^itioii of this order When it is not practicable to obtain the requisite troops and material for tlie complete practical examination as prescribed for artillery, oral and written examinations will be substituted by the board for the portion omiited. Q. O. 41, A. G. O. 1897. 716 APPENDIX M. questions will be asked in each subject, but the board is not limited to that number. The total Talues and relative weights of all subjects for which questions are furnished by the Adjutant-General shall be as follows: Subject. Total value, Relative weight. I. Administration II Drill regulations III. Exterior ballistics, etc. ... IV. Fire discipline V. Hippology VI. Jlilitary field-engineering VII. Militarj' law VIII Military topography IX. Minor tactics 200 200 200 200 200 200 200 200 200 In computing the examination, find the percentage in the various sub- jects, multiply each by the relative weight of that subject, then divide the sum of these products by the sum of the relative weights of the subjects in- cluded in the examination of each oflBcer. The numerous questions embraced in each list, together with such origi- nal questions as may be formulated by the board, admit of considerable variation, and make it possible to arrange examinations radically difEerent as regards particular questions, but essentially the same in respect to scope and character. It is desirable that the questions be selected indiscriminately in each case, to the end that each officer undergoing examination may have a different arrangement of questions, even when simultaneous examinations of a similar character are being conducted. For the present, questions furnished for the use of examining boards by the Adjutant-General will be prepared from Army Kegulations, General Orders, Circulars, Drill Eegulations, and the following publications : Abridgment of Military Law. — Winthrop. Ballistics, Exterior, Handbook of Problems in. — Ingalls. Ballistic Machines. — Ingalls. Defense of the Seacoast of the United States. — Allot. Explosives, Lectures on. — Walke. Gu nmaking. — Birnie. Gunnery. — Mackinlay. Horses, Saddles, and Bridles. — Garter. Infantry Fire: Its use in battle. — Batchelor. Manual of Field-engineering. — Beach. Manual of Heavy Artillery. — Tidball. Military Topography and Sketching. — Root. Organization and Tactics. — Wagner. The Service of Security and Information. — Wagner. FOBM OP RECOBD: BOARD OF EXAMINATION: Yl? TJnder these conditions they are recommended for special study by officers preparing for examination for promotion. No officer will be passed who fails to obtain 75 per cent in each of the Written, oral, and practical examinations. Graduating diplomas of the Infantry and Cavalry School, and the Artillery School, dated not more than five years anterior to examination, shall be accepted as evidence of proficiency, except for physical examina- tion.'] (G. 0. 41, A. G. 0. 1897.) When the examination as to professional capacity has been completed, the record will continue, in the case of an officer found to be qualified for promotion : CAPTAIN. The Board is of opinion that , — Kegiment of , United States Army, has the physical, moral, and professional qualifications to per- form efficiently all the duties of the grade to which he will next be eligible, and recommends his promotion thereto. {In cases where the officer is found to be qualified for promotion, the proceedings will be authenticated by the signatures of all the members, except the medical members, and the recorder. If any member dissents from the opinion of the Board, it will he so stated.) The Board then adjourned sine die {or, until A. M. , 1899; or, to meet at the call of the president). President. Recorder. ' For scope of examination in the cases of officers of the line and of the several stafE departments, see G. O. 41, A. G. O. 1897. APPENDIX K FORMS OF RETURN TO WRIT OF HABEAS CORPUS. 1. WHERE WRIT ISSUES PROM A STATE COURT. FOEM 1. PEKSOlf HELD UKDER WAKRANT OF ATTACHMEKT. In re . {Name of party held.) — Writ of habeas corpus — return of respondent. To the .' 'The respondent, Major , — th U. S. Infantry, upon whom has been served a writ of habeas corpus for the production of , respect- fully makes return and states that he holds the said by authority of the United States, pursuant to a warrant of attachment issued under sec- tion 1302 of the Revised Statutes of the United States by a judge-advocate of a lawfully convened general court-martial and duly directed to him, the said respondent, for execution; that he is diligently and in good faith engaged in executing said warrant of attachment, and that he respectfully submits the same for the inspection of the court, together with the original subpoena and proof of service of the same, and a certified copy of the order convening said general court-martial. And said respondent further respectfully makes return that he has not produced the body of the said , because he holds him by authority of the United States, as above set forth, and that ' is without jurisdiction in the premises, and he respectfully refers ,to the decisions of the Supreme Court of the United States in Ableman v. Booth, 21 Howard 506, and Tarble's Case, 13 Wallace, 397, as authority for his action, and prays ' to dismiss the writ. Dated Major, — tJi U. S. Infantry. —, 18- ' " Court " or " judge," as the case may be. ' ' This court" or "your honor," as the case may be. 718 FOBMS OF RETURN TO WRIT OF HABEAS CORPUS. 719 Form 2. person" held as a deserter. The respondent, respectfally makes retarn and states that he holds the said by authority of the United States, as a deserter irom the U. S. Army, under circumstances as follows: That the said was duly enlisted as a soldier in the service of the United States at , , on , 189~, for a term of years. That the said deserted said service at , on — , 189 — , and remained absent in desertion until he was apprehended at , , on : — , 189 — , by , and was thereupon committed to the custody of the respondent as commanding officer of the post of , . That charges for said desertion, a copy of which is annexed, have been preferred against the said , and that he will be brought to trial thereon as soon as practicable before a court-martial to be convened by the commanding general of the Department of . {or) convened by Special Orders No. — , dated Headquarters Department of , 189 — , a copy of which order is hereto annexed. And the said respondent further makes return, etc. {Conclude with last paragraph of form 1.) 2. WHERE WRIT ISSUES FROM A UNITED STATES COURT. RETURN" TO "WRIT. {Make return as in case of writ iy a State court, except as to last para- graph, for which substitute as follows:) In obedience, however, to the said writ of habeas corpus tbe respondent herewith produces before the court the body of the said , but for the reasons set forth prays this honorable court to dismiss the said writ. Major, — th U. S. Infantry. Dated , , , 189—. APPENDIX O. MISCELLANEOUS FORMS. SUBPCENAS, SUMMONS, ETC. SUMMONS FOR A MILITARY WITNESS. Fort -,18. To — Infantry. SiK : Yon are hereby summoned to appear on the — of , 189 — , at o'clock — .M., before a general court-martial, convened at , by Special Orders, No. , from , as a witness in the case of Private A B , Company — , — th Infantry. C D- Judge-A dvocate. United States J SUBPffiNA FOR CIVILIAN WITNESS. Subpcena. The President of the United States, to , greeting : You are hereby summoned and required to be and appear in person on the ^th day of , 189 — , at o'clock — .m., before a general court-martial of the United States, convened at , by Special Orders, No. , Headquarters , dated , 189 — , then and there to testify and give evidence as a witness for the in the above-named case. And have you then and there this precept. Dated at , , this — th day of , 189 — . Judge-Advocate of the Court- Martial. 720 MISCELLANEOUS FORMS. 721 SUBPCENA DUCES TECUM. {Civilian witness.) United States ) m. > Subpoena. The President of the United States, to , greeting : You are hereby summoned and required to be and appear in person on the — th day of , 189 — , at o'clock — .m., before a general court-martial of the United States, convened at by Special Orders, No. , Headquarters , dated , 189 — , then and there to testify and give evidence as a witness for the in the above-named case ; and you are hereby required to bring with you, to be used in evidence in said case, the following described documents, to wit: . And have you then and there this precept. Dated at , , this — th day of , 189 — . Judge-Advocate of the Court-Martial. KETTTRN OF SEEVICE. {Indorsement of preceding writs.y Un^ited States vs. , 18. I certify that I made the service of the within subpoena on , the witness named therein, by personally delivering to him in person a, duplicate of the same at , on the ^th day of , 189 — . -:V -, being duly sworn, on his oath states that the foregoing certificate is true. Subscribed and sworn to this — th day of , 189 — , before me." ' Oq the back of each form of writ are forms for both certificate and affidavit. It is not necessary to make the affidavit unless the witness be in default and it is proposed to issue process to compel attendance. In such case the affidavit can be filled out from the certificate made at the time of service. Manual for Courts-martial, 139, nole 1. ' After service, as above indicated, the original subpoena should be at, once returned to the judge-advocate of the court ; il^ the witness cannot be found, the judge-advocate should be so informed. If a civilian witness be summoned from a distance, pars. 6 and 7, page 714, infra, will be copied on back of subpoena to enable witness to keep a proper memorandum of expenses. 722 APPENDIX 0. WARRANT OF ATTACHMENT. United States) ««. [• The President of the United States, to ,' greeting: Where iS , of , , was on the — th day of , 189 — , at , duly subpoenaed to appear and attend at , , on the — th day of , at o'clock — .M., before a general court-martial duly convened by Special Orders, No. , dated Head- quarters Department of , -, 189 — , to testify on the part of the in the above-entitled case ; and whereas he has failed to appear and attend before said general court-martial to testify as by said subpoena required, and whereas he is a necessary and material witness in behalf of the in the above-entitled case; N^ow, therefore, by virtue of the power vested in me, the undersigned, as judge-advocate of said general court-martial, by section 1203 of the Eevised Statutes of the United States, you are hereby commanded and empowered to apprehend and attach the said , wherever he may be found within the of ," and forthwith bring him before the said general court-martial assembled at , , to testify as required by said subpoena.' Judge-Advocate of said General Gourt-martial. Dated , , — , 189—. ' Here insert the name and designation of the officer or non-commissioned officer designated by proper authority to serve the writ. ' State, Territory, or District where the court sits. ' See the article " Witnesses," pp. 245-350, in the chapter entitled Evidbncb. See, also, p. 460, ante. MISCELLANEOUS FORMS. 723 ACCOUNT OF CIVILIAN WITNESS. ' Tlie United States to , Dr. 189—. Expenses as witness before a military court convened under annexed order. Dolls. Cts. ^|2i S a •"- ■SgS fe cS From , 189— to , 189— For mileage from to and return, being miles, at 5 cents per mile For allowance while travelling to and from said court, between the above dates inclusive, days, at $1.50 per day For allowance while in attendance on said court, from , 189—, to , 189 — , as per judge-advocate's certificate hereon, days, at $1.50 per day Total From , 189—, to , 189— For actual cost of travel from to and re- turn, as per memorandum annexed For actual cost of meals and rooms while travelling to and from said court, between above dates inclusive, days.... For actual cost of meals and rooms while in attendance on said court, from , 189 — , to , 189 — , as per judge-advocate's certificate hereon, days Total m t», a Q. -■s s ^ » .§ H "3 a > o o N C5 I solemnly swear that the above account is correct ; that I have not been furnished with Grovernment transporbatioa for any part of the journey for which travel fafe is charged, and that the journey was performed without unnecessary or avoidable delay. , Witness. Sworn to and subscribed before me at on this — th day of , 189—. Judge- Advocate. Eeceived this — th day of , 189 — , of Major , pay- master, U. S. Army, dollars, in full of the above account, by check No. , on . [In duplicate.] I certify that . witness from — -, Witness. judge-advocate's cebtimoatb. {On lack of form.) , a civilian, has been in attendance as a material , 189 — , to , 189 — , inclusive, before a 724 APPENDIX 0. general court-martial duly convened at this place, and that he was duly sum- moned thereto from , . Judge- A dvocate. Place, , Date, , 189 — . (Note. — If the witness be " in Government employ,''^ these words will he inserted in the above certificate after the word ' ' civilian") KTTIES GOTEBimfG ACCOUlirTS OF CIVILIAN WITNESSES. The Paymaster-General is, under paragraphs 962-966, Army Regula- tions, governed by the following rules in the treatment of vouchers for travel expenses of civilian witnesses before military courts : 1. The voucher must be accompanied by a copy of the order convening the court, with the original summons in the case, or, if the attendance was authorized by military order, by the original order. In the absence of the original order or summons, certified copies of the same will be accepted. 3. The affidavit of the witness (on face of voucher) and the judge-advo- cate's certificate (on back of voucher) are required in all cases. The voucher and all accompanying papers must be in duplicate. 3. The items of expenditure authorized in paragraphs 962 and 963, Army Regulations of 1895, will be set forth in detail in a memorandum which will be attached to each voucher. No other items will be allowed. The correctness of the items will be attested by the affidavit of the witness, to be made, when practicable, before the Judge-advocate. 4. The certificate of the judge-advocate will be evidence of the fact and period of attendance, and will be made on the voucher. 6. Upon execution of the affidavit and certificate the witness will be paid upon his discharge from attendance, without waiting for completion of- return travel. The charges for return journeys will be made upon the basis of the actual charges allowed for travel to the court. 6. A civilian witness not in Government employ will receive 5 cents a mile for going from his place of residence to the place of trial or hearing and 5 cents a mile for returning, distances to be calculated by the shortest usually trawlled route. He will also receive $1.50 for each day actually and unavoidably consumed in attendance upon the court under the summons. No other items will be allowed. 7. Civilian witnesses in Government employ will be reimbursed ps follows : (a) Amount actually paid for cost of transportation or travel fare. [b) Amount actually paid for cost of transfers to and from railway stations, not exceeding 50 cents for each transfer. MISCELLANEOUS FORMS. 725 (c) Amonnt actaally paid for cost of one double berth in sleeping-cars or on steamers, where an extra charge is made therefor. {d) The actual cost of meals and rooms at a rate not exceeding $3 per day for each day actually and unavoidably consumed in travel or in attend- ance upon the court. 8. Travel must be estimated by the shortest available usually travelled route; the charge for cost of travel (items a, 5, c) by established lines of railroad, stage, or steamer should not exceed the usual rates in like cases, the time occupied to be determined by the ojfficial schedules, reasonable allowaace being made for customary unavoidable detention. 9. The summons, or order for attendance, will be presumed to show in all cases, by indorsement or otherwise, if transportation in kind or commu- tation of rations has been furnished. Transportation in kind will, for any distance covered thereby, be a bar to payment of item a. Indorsements of transportation furnished will be scrutinized to ascertain if any part of item c has been included. Commutation of rations will be a bar to payment of item d. Transpor- tation and commutation of rations will be a bar to any payment. 10. No per diem allowance can be made where the attendance upon the court does not require the witness to leave his station. (This applies to civilians in Government employ.) 11. Compensation to civilians in or out of Government employ, for attendance upon civil courts, is payable only by the civil authorities, 12. If a witness is in Government employ the judge-ad. vocate will state the fact. If it does not appear in the certificate or elsewhere in the papers, and is not known to the paymaster, it will be assumed that the witness is not in Government employ. 13. Whenever needed, judge-advocates can procure blank accounts for civilian witnesses from any army paymaster or from the Paymaster-General's Office. The accounts may then be made out upon a witness' discharge from attendance. If no paymaster be present at the place where the court sits, the accounts, authenticated as above directed, may be transmitted to any paymaster for payment, with confidence that the witness will receive his pay without unnecessary delay. INTERROGATORIES AND DEPOSITIONS. Inteeeogatokies. The United States 1 To {Name of officer who is to cause the United States ) vs. > deposition to be taken.) Interrogatories and cross-interrogatories to be propounded under the 91st Article of War to , a witness for the (prosecution or '''26 APPENDIX 0. defence) ia the above-entitled case, now pending and to be tried before the general court-martial, convened at , , by paragraph , Special Orders, No. , Headquarters Department of , dated th, 189—. 1st interrogatory : ? 2d interrogatory : ? Etc. 1st cross-interrogatory : ? 2d cross-interrogatory : ? Etc. DEPOSITIOlf. the witness above named, being first duly sworn, doth depose and say for full answers to the foregoing interrogatories, as follows To the 1st interrogatory : ? To the 2d interrogatory : ? Etc. {Signature of witness.) Subscribed and sworn to before me, this — th day of , 189 — . 189- I, , the oflBcer designated to cause the deposition of the said to be taken on the foregoing interrogatories and cross-interroga- tories, do certify that it was duly made and taken under oath. ' To be signed by the parties or party propoundlDg the interrcgalories and cross- interrogatories. If the witness is for tlie prosecution and there are no cross-interrogatories, the judge-advocate will certify that the defense had an opporinuity tc propound Ihem. (Sl'C 91st Article of War.) With the cousunt of the opposite party the depositions of a ■witness residing within the State, Territory, or District in which the court sits may be taken and read in evidence. A simple consent entered on this form will be snfBcient. Mitnual for Courts-martial. 141, note 1. ' The jurat to be signed by the officer administering the oath, who will add his official designation. If the oath is administered by a notary public, his seal will be affixed to the deposition. Ibid. , note 3. APPENDIX P. MAXIMUM LIMITS OF PUNISHMENT. The Act of September 27, 1890,^ provides that " whenever by any of the Articles of War for the government of the Army the punishment on convic- tion of any military ofEense is left to the discretion of the court-martial, the punishment therefor shall not, in time of peace, be in excess of a limit which the President may prescribe." The last order of the President pre- scribing limits of punishment is as follows :' ExBCtTTivB Mansion, June 13, 1905. The Executive order, dated March 20, 1895, establishing limits of pun- ishment for enlisted men of the Army, under an Act of Congress approved September 27, 1890, and which was published in General Orders, No. 42, 1901, War Department, is amended so as to prescribe as follows, to take efEect thirty days after the date of this order: Article I. In all cases of desertion the sentence may include dishonorable discharge and forfeiture of pay and allowances. Subject to the modifications authorized in Section 3 of this article the limit of the term of confinement (at hard labor) for desertion shall be as follows : Section 1. In case of surrender — (a) When the deserter surrenders himself after an absence of not more than thirty days, one year. (S) When the surrender is made after an absence of more than thirty days, eighteen months. Sec. 2. In case of apprehension — (as) When at the time of desertion the deserter shall not have been more than six months in the service, eighteen months. (5) When he shall have been more than six months in the service, two and one-half years. ' 26 Stat, at Large, 491. ' General Orders No. 43, War Department, 1905. 737 728 APPENDIX P. Sec. 3. The foregoing limitations are subject to modification under the following conditions : (a) The punishment of a deserter may be increased by one year of con- finement at hard labor in consideration of each prcTious conviction of desertion. (5) The punishment for desertion when joined in by two or more soldiers in the execution of a conspiracy, or for desertion in the presence of an out- break of Indians or of any unlawful assemblage which the troops may be opposing, shall not exceed dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. Article II. Except as herein otherwise indicated punishments shall not exceed the limits prescribed in the following table : Offenses. Under 17th Aeticle of Wab. Selling horse or arms, or both Selling accoutrements Selling clothing Losing or spoiling horse or arms through neglect. Losing or spoiling accoutrements or clothing through neglect. Under 20th Article of War. Behaving himself with disrespect to his commanding officer. Under 24th Article of War. Refusal to obey or using violence to officer or non-commissioned officer while quelling quarrels or disorders. Limits of Punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. Four months' confinement at hard labor and for- feiture of $10 per month for the same period; for non-commissioned officer, reduction in ad- dition thereto.' ThreemoDths' confinement at hard labor and for- feiture of f 10 per month for the same period; for non-commissioned officer, reduction in ad- dition thereto. Four months' confinement at hard labor and for- feiture of $10 per month for the same period ; for non-commissioned officer, reduction in ad- dition thereto. One month's confinement at hard labor and for- feiture of $10 ; for non-commissioned officer, reduction in addition thereto. Six months' confinement at hard labor and for- feiture of $10 per month for the same period ; for non-commissioned officer, reduction in ad- dition thereto. Dishonorable discharge, with forfeiture of all pay and allowances and confinement at hard labor for two years. 1 ExECDTiVE Mansion, Augutt 10, ]896. To the oresent schedule of punishments for enlisted men, established under Act of Congress approved Seotember 27 1890, and announced in Executive order of March 20, 1895, as promulgated in General Orders No 16 of 1895, from the Headquarters of the Army, is added : "First-class privates of Engi- npiTS and Ordnance may be reduced to second-class privates of those corps, respectively, in all cases where for like offenses on the part of non-commissioned officers their reduction in grade is now author- '^^"^■^ GEOVER CLEVELAND. MAXIMUM LIMITS OF PUmSHMBNT. Y29 Offenses, Undeb 32d Abticlb op Wab. Absence witliout leave ;' One hour or less For more than one to six hours, in- clusive. For more than six to twelve hours, inclusive. For more than twelve to twenty- four hours, inclusive. For more than twenty-four to forty- eight hours, inclusive. For more than two to ten days, in- clusive. For more than ten to thirty days, inclusive. For more than thirty to ninety days, inclusive. For more than ninety days. TJndbe 33d Article of War. Failure to repair at the time fixed, or the place appointed, etc. — , For reveille or retreat roll-call and 11 p. m. inspection. For assembly of guard detail For guard-mounting (by musician detailed for gui r I), For guard-mounting (by musician nnt detailed for guard). For assembly of fatigue detail For parade,, For inspection and muster, weekly or monthly inspection. For target practice For drill For stable duty For athletic exercises For pest school Limits of FuDishment. Forfeiture of $1; corporal, $3; sergeant, |3; 1st sergeant or non-commissioned officer of higher grade, $4. Forfeiture of $2; corporal, $3; sergeant, |4; 1st sergeant or non-commissioned officer of higher grade, $5. Forfeiture of $3; corporal, $4 ; sergeant, $6; 1st sergeant or non-commissioned officer of higher grade, $7. Forfeiture of $5; corporal, $6; sergeant, $7; 1st sergeant or non-commissioned officer of higher grade, $10. Forfeiture of $5 and five days' confinement at hard labor. For corporal, forfeiture of $8; sergeant, $10; 1st sergeant or non-commis- sioned officer of higher grade, $13, or, for all non-commissioned officers, reduction. Forfeiture of $10 and ten days' confinement at hard labor; for non-commissioned officer, re- duction in addition thereto. Forfeiture of $30 and one month's confinement at hard labor; for non-commissioned officer, reduction in addition thereto. Dishonorable discharge and forfeiture of all pay and allowances and three months' con- finement at hard labor. Dishonorable discharge and forfeiture of all pay and allowances and nine months' con- finement at hard labor. Forfeiture of $1; corporal, $2; sergeant, $3; 1st sergeant, $4. [•Forfeiture of $5; corporal, $8; sergeant, $10. -Forfeiture of $2; corporal, $8; sergeant, $5. 1 Upon trial for desertion and conviction of absence without leave only, the court may, in addition to the limit presci'ibed for such absence, award a stoppage of the amount paid as reward for the apprehension and delivery of the accused to the military authorities. 730 APPENDIX P. OSenses. Under 38th Akticle op Wab. Found drunk — On guard On duty as head cook On extra or special duty At formation of company for drill or on drill. At target-practice At formation of company for dress parade or on dress parade. At reveille or retreat roll-call At inspection and muster, weekly or montlily inspection . At inspection of company guard detail or at guard-mounting. At stable duty On fatigue Under 40th Article of War. Quitting guard Under 51st Article op War. Persuading soldiers to desert Limits of Punishment. Under 60th Article op War. Under 62d Article op War. Manslaughter Assault, with intent to kill Burglary Forgery Perjury False swearing •• ■ Robbery ' Six months' confinement at hard labor and for- feiture of $10 per month for the same period; for non-commissioned officer, reduction in ad- dition thereto. Forfeiture of |20. 1 Forfeiture of $12 ; for non-commissioned oflScer, reduction and forfeiture of $30. Six months' confinement at hard labor and for- feiture of $10 per month for the same period ; for non-commissioned officer, reduction in ad- dition thereto. Dishonorable discharge, forfeiture of all pay and allowances, and one year's confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and four years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and ten years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and ten years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and seven years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and four years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and four years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and two years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and seven years' confine- ment at hard labor. MAXIMUM LIMITS OF PUNISHMENT. T31 OCEenses. Limits of Punishment. Under 62d Akticle of War — Cont'd. Larceny or embezzlement of property — ' Of the value of more than $100 . . . Of the value of $100 or less and more than $50. Of the value of $50 or less and more than $30. Of the value of $30 or less. Fraudulent enlistment, procured by false representation or concealment of a fact in regard to a prior enlist- ment or discharge, or in regard to conviction of a civil or military crime. Fraudulent enlistment, other cases of. Disobedience of orders, involving will- ful defiance of the authority of a non-commissioned officer in the exe- cution of his office. Using threatening or insulting language or behaving in an insubordinate manner to a non-commissioned officer while in the execution of his office. Absence Ir im fatigue duty Absence from extra or special duty . . . Absence from duty as company, general mess, or hospital head cook. Introducing liquor into post, camp, of quarters in violation of standing or- ders.- Drunkenness at post or in quarters . . . Drunkenness and disorderly conduct, causing the offender's arrest and con- viction by civil authorities at a place within 10 miles of his station. Noisy or disorderly conduct in quarters. Drunk and disorderly in post or quar- ► ters. Abuse by non-commissioned officer of his authority over an inferior. Non-commissioned officer encouraging gambling. Non-commissioned officer making false report Sentinel allowing a prisoner under his charge to escape through neglect. Sentinel willfully suffering prisoner under his charge to escape. Dishonorable discharge, forfeiture of all pay and allowances, and four years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and three years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and two years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and one year's confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for six months. Six months' confinement at hard labor and for- feiture of $10 per month for the same period ; for non-commissioned officer, reduction in ad-* dition thereto. Two months' confinement at hard labor and forfeiture of $10 per month for the same period; for non-commissioned officer, reduc- tion in addition thereto. Forfeiture of $4 ; corporal, $5 ; sergeant, $6. Forfeiture of $4 ; corporal, $5 ; sergeant, $6. Forfeiture of $10. Forfeiture of $3 ; for non-commissioned officer, reduction and forfeiture of $5. Forfeiture of $3 ; for non-commissioned officer, reduction and forfeiture of $5. Forfeiture of $10 and seven days' confinement at hard labor ; for non-commissioned officer, reduction and forfeiture of $13. Forfeiture of $4 ; corporal $7; sergeant, $10. Forfeiture of $7 ; for non-commissioned officer, reduction and forfeiture of $10 Reduction, three months' confinement at hard labor, and forfeiture of $10 per month for the same period. Seduction and forfeiture of $5. Reduction, forfeiture of $8, and ten days' con- finement at hard labor. Six months' confinement at hard labor and for- feiture of $10 per month for the same period. Dishonorable discharge, forfeiture of all pay and allowances, and one year's confinement at hard labor. > In gpecltlcations to charges of larceny or embezzlement the value of the property shall be stated. 732 APPENDIX P. Offenses- Limits of Punishment. TTiTDER 62d Article of War — Cont'd. Sentinel allowing a prisoner under his charge to obtain liquor. Sentinel or member of guard 'drinking liquor with prisoners. Disrespect or aftront to a sentinel Resisting or disobeying sentinel in»law- f ul execution of his duty. Lewd or indecent exposure of person . . Committing nuisance in or about quar- ters. Breach of arrest in quarters Two months' confinement at hard labor and for- feiture of $10 per month for the same period. Two months' confinement at hard labor and for- feiture of $10 per month for the same period. Two months' confinement at hard labor and for- feiture of $10 per month for the same period; for non-commissioned oflicer, reduction in addition thereto. Six months' confinement at hard labor and for- feiture of $10 per month for the same period; for non-commissioned oflScer, reduction in addition thereto. ! Three months' confinement at hard labor and forfeiture of $10 per month for the same period ; for non-commissioned officer, re- duction in addition thereto, ne month's confinement at hard labor and forfeiture of $10; for non-commissioned officer, reduction in addition thereto. Article III. The introduction and use of evidence of previous convictions is subject to the following regulations : Section 1 . Such evidence shall be limited, except as provided in section 5 of this article, to previous convictions by courts-martial of an offense or offenses within one year preceding the date of commission of any offense charged and during the current enlistment." These convictions must be proved by the records of previous trials and convictions, or by duly authen- ticated copies of such records, or by duly authenticated copies of the orders promulgating such trials and convictions. Charges forwarded" to the authority competent to order a general court-martial, or submitted to a summary, garrison, or regimental court-martial, must be accompanied by the proper evidence of previous convictions. Sec. 2. Whenever a soldier is convicted of an offense for which a dis- cretionary punishment is authorized, the court will receive evidence of previous convictions (see section 1 of this article), if there be any. General, regimental, and garrison courts-martial wUl, after a finding of guilty, be opened for the purpose of ascertaining whether there is such evidence and, if so, of receiving it. Sec. 3. Previous convictions in connection with inferior court offenses. — When a soldier is convicted of an offense the punishment for which under Article II of this order or the custom of the service does not exceed three months' confinement at hard labor and forfeiture of three months' pay, the MAXIMUM LIMITS OF PUNISHMENT. 733 punishment so authorized may, upon proof of previous convictions (see sec- tion 1 of this article) be increased one-half for each of such convictions up to the limit of three months' confinement at hard labor and forfeiture of three months' pay, and, for non-commissioned officer or first-class private, re- duction in addition thereto. Upon proof of five or more of such con- victions, if not less than five of them were followed by sentences, in each case, of not less, substitutions considered (see Article VII), than forfeiture of $10 or confinement at hard labor for 20 days, the limit of punishment shall be dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three months; but if dishonorable discharge be not adjudged, the limit shall be three months' confinement at hard labor and forfeiture of three months' pay, and, for a non-commissioned officer or first-class private, reduction in addition thereto. Sec. 4. Previous convictions in connection with general court-martial offenses. — ^When the conviction is for an offense punishable under Article II of this order or the custom of the service with a greater punishment than three months' confinement at hard labor and forfeiture of three months' pay, such punishment shall not be increased by reason of previous con- victions, except as hereinafter specified; but evidence of those described in section 1 of this article will be submitted to the court to aid it to deter- mine upon the proper measure of punishment subject to the limit already authorized. Upon proof of five or more of such convictions, if not less than five of them were followed by sentences, in each case, of not less, sub- stitutions considered (see Article VII), than forfeiture of $10 or confine- ment at hard labor for 20 days, the court may, if the authorized limit does not include dishonorable discharge, adjudge dishonorable discharge and forfeiture of all pay and allowances with the authorized confinement. Sec. 5. On a conviction of desertion, evidence of convictions of previous desertions may also be introduced, irrespective of the enlistment or of the period which may have elapsed since such conviction or convictions. Sec. 6. When a non-commissioned officer is convicted of an offense not punishable with reduction, he may, upon proof of one previous conviction within the prescribed period (see section 1 of this article), be sentenced to reduction in addition to the punishment already authorized. Sec. 7. First-class privates may be reduced to second-class privates in all cases where for like offenses on the part of non-commissioned officers their reduction in grade is now authorized. Article IV. When a soldier shall, on one arraignment, be convicted of two or more offenses, none of which is punishable under Article II of this order or the custom of the service with dishonorable discharge, but the aggregate term 734 APPENDIX P. of confinement for which as specified in said article may exceed six months, dishonorable discharge with forfeiture of pay and allowances may be awarded in addition to the authorized confinement. Article V. If, in any case where the limit of punishment is dishonorable discharge, forfeiture of aU pay and allowances, and confinement at hard labor for a stated number of months, dishonorable discharge be not adjudged, the limit of forfeiture shall be all pay due and to become due during the pre- scribed hmit of confinement. Article VI. This order prescribes the maximum limit of punishment for the offenses named, and this limit is intended for those cases in which the severest punishment should be awarded. In other cases the punishment should be graded down according to the extenuating circumstances. Offenses not herein provided for remain punishable as authorized by the Articles of War and the custom of the service. Article VII. Substitutions for punishment named in Article II of this order are authorized at the discretion of the courts at the following rates: Two days' confinement at hard labor for one doUar forfeiture, or the reverse; one day's solitary confinement on bread-and-water diet for two days' confinement at hard labor or for one doUar forfeiture: provided that a non-commissioned ofiicer not sentenced to reduction shall not be subject to confinement; and provided that solitary confinement shall not exceed fourteen days at one time, nor be repeated until fourteen days have elapsed, and shall not exceed eighty-four days in one year. THEODORE ROOSEVELT. INDEX. Abandoning post. 413-415. (See 43(2 Article of War.) Abatement, pleas In, 107-110 (see Pleas): accuser, name of, 109. additions, false, 107. character, 107. charges, difference in copies, 108. effect, 107. ' failure to serve charges, 109 false additions, 107. idem swians, 107. misdescriptions, 107, 108. misnomers, '107, 108. nature of pleas, 107. procedure, 110. waiver, 107, 109, 110. Absence, 1.36, 137, 359, 360 (see nh and 12th Articles of War): certificates of, 365. of judge-advocate, 136. of member, 136. reasons for, 365, 366. reports of, 359. Absence yrithont leave, 402-404 (see 32d and 41st Articles of War): character of absence, 402, 403. commissioned ofi&cers, 403, 404. enlisted men, 402-404. intent, 402, 403. forfeitures, 403, 404. stoppages, 403. time lost, 404. Absentees, 359, 360 (see 12th Article of War): certificates, 365. lists of, 360. reasons for absence, 365, 366. reports of, 359. Abusive language, 471. (See 21st and 61st Articles of War.) Acting as spies, 562, 563. Accident, 864, 365 (see Property): avoidable, 364. homicide by, 448. inevitable. 364, 365. unavoidable, 364, 365. Accountability for property, etc., 364, 865: disciplinary, 364, 365. ' fiscal, 364, 365. Accounts, pay, duplication of, 470, (See SOth and 6Ist Articles of War.) Accused: as witness, 132. amenability to trial, 98, 99. arraignment, 96-118 challenges, 86-90. continuances, 90, 91. copy of record, 553, 654. counsel, 36-40. defense, 124-132. pleas, 96-100. postponements, 90, 91. ~ revision proceedings, 168-160. statement, 183, 138. Accuser, as convening officer, 17, 18: challenge to, 88. name of, 109. Accomplices, as witnesses, 257: credibility of, 257. Accoutrements, 360, 364, 372: accountability, 360, 363, 364. loss, 372. sale, 372. spoiling, 372. Acquittal, 145, 146: effect, 145, 146. forms, 146. plea of previous, 100, 101. remarks in, 146. tie vote, operates as, 146. Actual contempt, 508. (See SSth Article of War.) Additions, false, 107, 108 (see Pleas): to sentence, 155, 157. Adjonrnments, 135, 136, 195 (see Trial): control of court over, 135. dissolution of court by, 136. effect of, 135, 136. record of, 196. time, 135. to another place, 135. Admissions against interest, 269, 270. without proof, 292. Advising desertion, 432, 433 (see 57th Article of War): nature of offense, 483. penalty, 433. Afildavits, 229, 294 (see Depositions): 735 736 INDEX. kt&Aiyita— Continued. authority, 229. (Note 2.) character, 229. (Note 2.) evidential value, 829. execution, 229. ex parte in character, 239. nature, 394. not depositions, 294. purpose, 389, 830. Affirmation, 119. (See Oaths.) Agreements, fraudulent, 468. (See eoth Article of War.) Alarms, false, 414, 415. (See 41st Article of War.) Albemarle Articles, 340. (See Articles of War.) Alibi, 129. (See Defenses.) Allegations in specifications, 72-75: intent, 642. names, 72. persons, 72. place, 73, 74. time, 73, 74. AUoiraiices, forfeitures of, 150-153. Alternate forms, 73. (See Charges.) Amenability to military Jurisdiction : beginning of, 54. commissioned officers, 54. conscripts, 51. double, 43. enlisted men, 54, 55. military establishment, 47. militia, 47-51. retainers to camp, 47, 53. volunteers, 47. Amendment of charges, 75. (See Charges.) Ammunition, 363, 364: accountability, 360, 364. sale, 372. spoiling, 378. waste, 373. Appeal from inferior conrt, S25, 838: from summary court, 213, 214. procedure in, 227, 888. to general court, 225, 338. Appearance as witness, 245-350: civilians, 245-250. compulsory, 848-250. military persons, 245. subpoenas, 245-248. writ of attachment, 848-350. Apprehension of deserters, 423-428: by whom made, 423-428. legality of, 423-428. payment of reward, 423-438. rewards for, 423-428. Approval of proceedings, 199-303; death sentences, 543, 544. dismissal of officer, 544, 545. sentences respecting general officers, 546. Arguments, 133, 133 (see Statements) : accused, 139, 138. closing, 133. defense, 132, 133. latitude in, 132, 133. opening, 132, 133. Argnments— Continued, order of, 138, 133. prosecution, 132, 133. waiver of, 133. Arms, 363, 364 (see Returns): accountability for, 363. disciplinary responsibility, 363. fiscal accountability, 363. sale, 372. spoiling, 378. Army, command in, S59-SS1: employment of, 323-336. rank, 559-661. Army regulations, 6-10: authority, 6. classification, 8. conformity to law, 7. definition, 6. obligatory force, 6. violation of, how chargeable, 474. Arraignment, 96-119 (see B9th Article of War); demurrers, 113, 114. general issue, 114-117. inconsistent statements, 115, 116. pleadings, 96. pleas, 96-113. abatement, 107-113. bar of trial, 100-107. jurisdiction, 96-100. standing mute, 118. statements inconsistent with plea, 116, 116. statute of limitations, 111-118. Array, challenge to, 86. Arrest, 61-68, 481, 488, 487, 488 (see 6Sth Article of War): actual breach of, 63. breach of, 63, 64, 481. actual, 63. constructive, 63. penalty, 63. technical, 63. commanding officer ; power to arrest, 61, 481, 483. to extend limits, 62, 481, 482. to release, 64. to terminate, 64. control over, 63. by court-martial, 68. crimes, etc., 61. duration of, 64, 487, 488. duty of arrested officer, 68. emergency, 61, 65, 66 execution of, 61, 481, 483. extension of limits, 62, 483. how imposed, 61. limits, 62, 483, 483. march, 63. medical officers, 482. nature of restraint, 63. not demandable, 63. non-commissioned officers, 66. officer, 61, 481-488. official visits, 62. order, 61. INDEX. 737 Arrest— Continued. power to arrest, 61, 65, 66.^ privilege from, 48S, quarters, 63. release, 64. remote posts, 488. restriction on, 64. service of charges, 80, 81. status of, 63, 483. sword, surrender of, 481. ten days thereafter, interpretation, 488. tent, 63. termination of, 64. twenty-fourth Article, 65. twenty-flfth Article, 66. visits, 63. Arson, 441, 442, 543 (see 58«7i Article of War): actual burning, 443. burning, extent of, 443. efinition, 441. intent, 441, 443. malice, 443. Articles of War : amendments of 1777, 343. 1786, 342. American, of 1775, 343. 1776, 348, 602-618. 1786, 619-624. 1806, 843, 625-640. 1874, 343. British articles : Albemarle's, 340. Arundel's, 340. code of 1774, 581-601. Henry VII., 339. Northumberland, 340. Prince Bupert, 340. Richard II., 339. Rupert, 340, 567-680. charges under, 641-643. commissioned officer, 343. enlisted man, 343. history, 339-343. interpretation, 343. limitation on punishments, 343, 344. origin. 339-343. publication, 562. reading to troops, 562. rules of Interpretation, 343. soldier, 343. sources, 339-343. Article 1 : history, 344. subscription to articles, 344. Article 2 : administration of oath, 345. civil magistrate, 345. enlistment, oath of, 344, 345. form of oath, 344. history, 344. oath, 344. Article 3 : charges under, 350, 351, 643. Article &— Continued. enlistment, 346-350. form of charge under, 643. fraudulent enlistment, 351, 353. method of enlistment, 348-350. offense under, 350, 351. prohibited enlistments, 346-361. aliens, 346, 347. deserters, 346, 847. ignorant persons, 846, 347. insane, 346, 347. infamous persons, 346, 347, minors, 346, 347. Article 4, 352-358: discharge by executive order, 355, 3 by expiration of service, 353, 355. by purchase, 368. without honor, 357. dishonorable discharge, 356, 357. effect of discharge, 353, 353, 855. forms of, 353-358. history of article, 352. honorable discharge, 853, 355. Article 5, 358 (see False Muster) : form of charge, 644. history, 358. unlawful muster, 358. Article 6, 359 (see Musters) : form of charge, 644. history, 359. no intent necessary, 359. offense, nature of, 359. rolls need not be false, 359. Article 7, 359, 360 (see Returns) v absent officers, 359, 360. by whom rendered, 359, 360. character of returns required, 359, failing to make returns, 359. form of charge, 644. histoiy of articles, 359. omitting to make returns, 359, returns, character, 369, 360. contents, 369, 860, list of absentees, 359, 360, to whom rendered, 359. Article 8, 360, 361: accountability, 360. false returns, 360. form of charge, 645. history, 360. returns, 360. scope of article, 860, 361. vouchers, 360. Article 9, 361-363: captured property, 361, 368. commanding officer, duty of, 361, 36 compensation foi', 863. disposition of, 361-363, ownership, 362, 363. personal property, 362, 363. private property, 862, 363. recapture of property. 863. title to captures, 362, 363. 738 INDEX. Article 10, 363-365 (see Property) : accidents, 364, 365. accoutrements, 363-365. actual service, 365. ammunition, 363-365. clothing, 363-365. history, 304. ' responsibility for property, 364, 365. Article 11, 365 : furloughs, 366. history, 365. power of company commander, 365. post commander, 365. regimental commander, 365. restriction on authority, 365. Article 12, 365, 366 (see Ith Article of War) : absentees, 365, 366. certificates of absence, 360, 365, 366. lists of absentees, 360, 365, 366. by whom made, 366. to whom reported, 356. transmission of certificates, 365, 366. Article 13, 366 (see Articles 7 and 12) : absence, 366. false certificate, 360. form of charge, 645. history, 360. pay, 360. Article 14, 366-369 (see 5th, eth, I2th and 13th Articles of War) : certificates, 366, 367. evidence, 367. false certificates, 367. musters, 367-369. form of charge, 645. history, 366, 367. muster in, 367, 368. out, 367, 368. rolls, 367, 368. mustering officer, 368. musters, how made, 367, 368, offense described, 367-369. Article 15 : accountability, 369. form of charge, 646. history, 369. neglect, 369, 370. offense, nature of, 369, 370. penalty, 369. stoppages, 370-372. Article 16, 372 (see Ammunition) ; ammunition, 372. form of charge, 646 history, 372. waste, etc., 372. Article 17, 372, 374: accoutrements, 373. arms, 372. clothing, 372, 374. title to, 374. damage, 372, 373. form of charge, 647. horse, 372, 373. improper disposition, 373. Article 17 — Continued. pecuniary responsibility, 873. Article 18, 374, 375 : duty, 374. extortion, 374, 375. form of charge, 648. imposition, 374, 375. necessaries, 374. purpose of Article, 374. Article 19, 375, 376 : contemptuous words, 375, 376, Congress, 375. disrespectful words, 375, 376. form of charge, 648. nature of offense, 375, 376. penalty, 376, 376. President, 375, 376. Vice-President, 375, 376. Article 20, 376, 377 : coiimianding officer, 376, .377. disrespect, 376, 377. form of charge, 648. history, 376. intent not essential, 377. nature of offense, 376, 377. purpose, 376, 37". Article 21, 378-389 (see Chders) : abusive language, 389. assaults, 387, 388. defenses, 386, 387. disobedience of orders, 382-387. drawing and lifting weapon, 389. forms of charges, 649-651. history, 378, 379. , justification, 386, 387. language iu violation of, 389. negative disobedience, 384. obedience to orders, 379-382. orders, 379-382. penalty for disobedience, 378. positive disobedience, 384. responsibility for obedience, 385-387. striking superior officer, 387, 388, superior officer, 387, 388. threatening language, 389. Article 22, 389-391 (see Mutiny) : beginning a mutiny, 390. causing a mutiny, 390. forms of charges, 661, 652. history of articles, 389. inciting a mutiny, 390. insubordination, 390. mutiny, 390-393. purpose of article, 391. sedition, 390. Article 23, 391-393 (see ZLd Article of War) ! duty of suppression, 391, 392. failure to give information, 392. force, employment of, 398, 393. form of charge, 652. history, 391. misprision, 392. quelling mutiny, 391-393. rule as to force used, 392, 393. INDEX. 739 Article 24, 393, 394 : arrests, 393. duty lequired by, 393, 394. form of charge, 653. history, 393. inferiors in rank, duty of, 393, 394. non-commissioiied ofKoers, duty of, 393, 894. officer, meaning of term, 393. power conferred, 394. what conditions govern, 393. Article 2S, 394-396 : arrests, 396. history, 395. jurisdiction conferred, 396. offenses under, chargeable under Article 62, 396. procedure under, 396. purpose of Article, 395. Article 2G, 394-398 (see 34th, SSf/t, and Wth Arti- cles of War) : challenges, 394-398. form of charge, 653, 654. history, 396, 397. nature of challenge, 398. penalty, 394. proof, 397, 398. Article 27, 394-398 (see 24tt, 25tt, and 86^ Arti- cles of War) : challengers, 394-398. duty of commander of guard, 397, 398, duty of commanding officer, 398. form of charge, 654. history, 394, 395. nature of offense, 397, 398 penalty, 394, 395. Article 28, 394-398: challenges, 394-39S. form of charge, 654. history, 394, 395. refusal to accept challenges, 395. Article 29, 395-400 (see Redress of Wrongs) : duty of commander, 399. history, 399. procedure, 399. redress, 399. Article SO, 400-402 (see Redress of Wrongs) : appeals, 400. healing, 400, 401. history, 400. investigation, nature of, 400. jurisdiction, 400, 401. limitation on authority, 401. not a trial, 400. procedure, 400, 401. scope of a^'ticle, 400. Article 31 : form of charge, 654. history, 401. lying out of quarters, 401. police regulation, 400. Article 82, 408-404 (see mh Article of War): absence, character of, 402, 403. commissioned officers, 403, 404. defenses, 408. forfeitures, 403. Article SZ— Continued. form of charge, 655. history, 408. stoppages, 403. time lost, 403, 404. Article 33, 404, 405 : application, 404, 405. designation of place of parade, 404. failure to repair, etc., 404. form of charge, 655. history, 404. necessity, 404, 405. offense', nature of, 404, 405 Article S4, 405 : form of charge, 655. history, 405. purpose of article, 405. written permission, 405. Article 35 (see 34th Article of War): form of charge under, 656. history, 405, 406. purposes, 405. Article 86 (see 37a Article of War) : application, 406. being excused, 406. contract of hiring, 406. form of charge, 656. hiring duty, 406. history, 406. illegality of contract, 406. power to excuse, 406. Article 37, 406 (see 36*h Article of War) : connivance at hiring, 436. form of charge, 656. history, 436. knowledge of officer, 406. ofBcers, duty of, 436. purpose of article, 436. Article 88: appearance at formation drunk, 408, 409. commanding ofiScer, 408. commissioned officer, 408. corporal punishment, 407, 409. drunkenness on duty, 406-409. off duty, 408, 409. ' enlisted men, 408. forms of charges, 657, 658 history, 407. medical officer, 408 off duty, 408. on duty, 408. penalty, 409. Article 39 (see Sentinels) : defenses, 410. duty of sentinels, 410-412 excessive duty no defense, 410. form of charge, 658. history, 409, 410. leaving post, 409-412. quitting post, 409-418. sentinels, 410-418. duty of. 410. execution of orders, 411, 412. respect for, 411, 413. 740 INDEX. Article 89— Continued. sleeping on post, 409, 410. Article 40 : form of charge, 659. leave of superior, 413, 414. necessity, 418, 414. quitting guard, etc., 413, 414. Article 41 : alarm, 413, 414. false alarm, 413, 414. form of charge, 659. history, 413. how occasioned, 413, 414. purpose of article, 413, 414. Article 42 : abandonment of post, 415. arms and ammunition, 415. cowardice, 415. forms of charges, 659. history, 415, misbehavior, 415. pillage, 416. plundering, 416. Article 48, 416 : abandoning post, garrison, etc., 415, 416. compulsion, 416. form of charge, 660. history, 416. mutiny, 416. penalty, 416. Article 44 : countersign, 417. form of charge, 660. history, 416, 417. intent, 417. parole, 417. scope of article, 417. Article 46, 417, 418 (see i&th Article of War) : application of article, 417, 418. enemy, public, 418. form of charge, 661. harboring enemy, 417. history, 417. holding correspondence with the enemy, 418. martial law, 417, 418. relieving the enemy, 418. whosoever, 417. Article 46 (see 46«ft Article of War) : correspondence, 418. enemy, 418. form of charge, 663. giving intelligence, 418. history, 417. holding correspondence, 418. intelligence, giving, 418. Article 47, 418-439 (see Desertion) : apprehension of deserters, 423-438. deserters, 420-436. desertion, 418-439. form of charge, 662. history, 418, 419. intent in desertion, 420, 421. rewards, 423^38. statutory consequences, 427-429. Article 48; absentees without leave, 430. history, 430. mailing good time lost, 430. restoration to duty, 430, 431. waiver of liabihty, 431. Article 49, 431 : constructive desertion, 431. by whom committed, 431. nature of offense, 431. statutory character, 431. form of charge, 663. history, 431. scope of article, 431. Article 60, 431, 431 (see Desertion) : enlisting in another corps, 431, 432. entertaining deserter, 431, 432. form of charge, 663. history, 433. object of provision, 433. penalty, 433. Article 61, 433. 433 : advising to desert, 432, 433. form of charge, 663. history, 483. persuading to desert, 433. Article 62, 433, 434 : attending divine service, 434, history, 434. penalty, 434. procedure, 434. Article 68, 434, 435 (see Profanity) ! enlisted men, 434. history, 434, 435. officers, 434. penalty, 434. profanity, 434, 435. Article 64, 435, 436 : beating, 435. citizens, injuries to, 435, 436. commanding officer, duty of, 435, 436. complaints under, 435, 436. extent of reparation, 435. form of charge, 664. history, 435. ill treatment, complaints of, 435, 436. justice to be done, 435, 436. nature of remedy, 435. offender, liability, 435, 436. pay of offenders, 435, 436. procedure, 435, 436. reparation, 435, 436. riot, 436. stoppages, 435, 436. Article 66 : behavior required, 436, 437. defense, 437. fish-ponds, 436. form of charge, 665. gardens, 436. general officer, orders as authority, 437. grain-fields, 436. history, 436. inclosures, 436. INDEX. 741 Article hi— Continued. meadows, 436. orders as a defense, 437, prevention of disorder, 436, 437. purpose of article, 436, 437. spoil, commission of, 436, 437. trees, 436. warrens, 436. waste, commission of, 436, 437. Article 56 : application of article, 437. foreign parts, 437. form of charge, 666. history, 437. provisions, persons bringing in, 437. violence to persons, etc., 437. Article 57 : by whom committed, 438, 439. extent of operation, 438, 439. foreign parts, 438, 439. form of charge, 666. history, 438. 439. nature of offense, 438, 439. rebellion, 438, 439. safeguards, 438, 439. territory in rebellion, 438, 439. Article 58: application, 440, 441. arson, 441, 443, assault and battery, 443. with intent to commit rape, 453, 453.. with intent to kill, 443, 443. battery, 443. burglary, 443-445. embezzlement, 450-453. false swearing, 456. forgery, 453, 454. forms of charges, 666-669. jurisdiction conferred, 440, 441. history, 439, 440. homicide, 445-449. larceny, 449. manslaughter, 446, 447. mayhem, 453. measure of punishment, 441, 443. murder, 445, 446. time of war, 441. perjury, 454-4S6. punishment, 441. rape, 453. receiving stolen goods, 453. robbery, 450. self-defense, 448, 449. war, time of, 441. when applicable, 441, wounding, etc, 443, Article 69 : application, 466-458. applications under, 458. by-laws, municipal, 458. civilians not subject to, 459, concurrent jurisdiction, 459, crimes, 456-468. directory in character, 459, Article &9— Continued. forms of charges, 669. history, 456, 467. law of the land, 457. municipal ordinances, 468. offense against United States, 469. party injured, 458. persons subject to, 459. procedure, 468, 469. process, service of, 469. purpose, 456, 457. State laws, 456-460. status of accused, 457. surrender, how effected, 458, 459. Territory, 460. Article 60, 463-468 : agreements to defraud, 463. blanlc, receipts in, 464. charges under, 466, 670-674. claims, fraudulent, 463. conspiracy to defraud, 463. embezzlement, 464, 465. intent, 465. equipment, purchase of articles of, 467. expiration of service, no bar to trial, 468. forgery, 463. forms of charges, 670-674. fraud, 463-468. fraudulent claims, 463. history, 468, 463. intent, 465. larceny, 464, 465. misapplication, 466. misappropriation, 466, negligence, 464. payments, fraudulent, 464. short, 464. penalty, 468, 467, 468. presenting false claim, 463. property, offenses against, 464-466. receipts in blank, 464. short payments, 464. stealing, 464. Article 61, 468-473 : abusive language, 469. assaults, 471. character of offense, 468-470. conduct unbecoming, etc., 468-470. by whom determined, 468-470. need not directly affect military service, 470. crime, 469-473. custom of service, 469. debt, 471. service, fraudulent, 471. drunkenness, 471, 473. duplication of pay accounts, 470. evidence, 468. fighting, 469, 470. false reports, 469. forms of charges, 674. fraud, 469-471. gambling, 471. history, 468. infamous conduct, 468. 742 INDEX, Article ^X~Continued , intoxication, 468. nature of offense, 468-470. neglect of pecuniary liability, 470. pay accounts, duplication of, 470, penalty, 471, 472. pledge, 470. scandalous conduct, 468. violation of pledge, 470. Article 62,472-478: breach of peace, 475. capital crimes, 476, 477. charging of offenses, 476, 477. civil crimes, 476. crimes not capital, 473-476. disorders, 474. druDkenness, 474, findings, 477, 478. forms of charges, 676-679. fraud, 474. history, 472, 473. lesser kindred offense, 477. military discipline, relation to, 473, 474. military duty, standards of, 473, 474. minor included offenses, 477. nature of offense, 472-478, neglects, 473, 474. negligence, 473, 474. prejudice of good order, etc., 473^75, standard of performance, 473, 474. Article 63, 478, 479 (see Jurisdiction) : all persons, etc., 478. application of article, 478, 479. armies in the field, 478, 479. camp-followers, 478. civil employees, 478, 479. civilians, 478, 479. history, 478. interpretation, 478, 479. peace, not applicable in time of, 478, 479. procedure under, 478, 479. restriction on jurisdiction, 479. Article 64, 479, 480 (see Jurisdiction) : all times and places, 479, 480. application of article, 479, 480. history, 479, 480. 5urisdiction, extent of, 479, 430. militia, 479, 480. offenses, not territorial, 479, 480, scope of article, 479, 480. Article 66, 480-483 (see Arrest) : arrest, how executed, 481, 482. arrest, under 24th and 25th Articles. breach of arrest, 481. commanding officer, powers of, 482. courts, power over, 482. execution of arrest, 481, 482. extension of limits, 483. form of charge, 679. history, 480, 481. limits of arrest, 483. medical officers, 482. 8tatus>- of arrest, 483. ^ swoicf, surrender of, 481. Article dB—Contintied. restrictions on arrested officer, 483. Article 66, 483-485 (see Confinement) : arrest of non-commissioned officers, 484, character of restraint, 484. confinement, 483-485. execution of, 484. status, 484-485. execution of confinement, 484. history, 483. labor required, 485. nature of confinement, 484, 485. status, 485. work required of prisoners, 485. Article 67, 485, 486 (see Confinement) : account in writing, 485, 486. character of prisoner, 486. duty of receiving officer, 486, history, 485. refusal to receive prisoner, 485. Article 68, 486 (see Confinement): general prisoners, 486. form of charge, 680. history, 486. report, 486, time of report, 486. when made, 486. Article 69, 486, 487 (see Arrest and Confinement); escape, 487. form of charge, 680. history, 487. negligence, 487, reasonable cause, 487. release, 487. Article 70, 487 (see Arrest) : arrests, duration of, 487. directory in character, 487. history, 487. limit of arrest, 487. wrongs under, remedy, 487. Article 71, 487-489 {see Arrest): duration of arrest, 488. history, 487, 488. limitation of time, 488, 489. release from arrest, 488, 489. Article 72, 489-492 (see Convening Authority) : accuser or prosecutor, 490, 491. convening authority, 489-491. history, 489-492. prosecutor, 489-491. Article 73 (see Convening Authority) : division commander, 492. history, 492. separate brigades, 492, 493. Article 74, 493, 494 (see Judge-Advocate) : appointing power, 493, 494. history, 493. judge-advocate, 493. power to appoint, 493, 494. Article 76, 494, 495 (see Composition of Courts' martial) : composition of courts-martial, 494, 495. eligibility to membership, 494, 495, history, 494. INDEX. 743 Article '2^— Continued, minimum membership, 495. number of members, 494, 495. officers only, eligible, 494, 495. quorum, 494, 495. Article 76, 495 (see Composition of Courts-mar- tial) : duty of commander, 495. history, 495. officers, how obtained, 495. Article 77, 495, 496 (see Composition) : competency of members, 496. history, 496. militia, 496. regular officers, 496. Article 78, 496, 497 (see Composition) : command, 496, 497. composition of courts, 497. duty of marine corps, 497. history, 497. marine corps, 496, 497. president, power of, 496. when subject to military law. Article 79, 497 (see Jurisdiction): composition of general courts, 497. general courts. 497. history, 497. inferiors in rank, 497. officers, courts for trial of, 497. trial by inferiors, 497. Article 80, 498, 499 (see Summary Court)i composition, 498. constitution, 498. detail, 498, 499. field officer, 498, 499. history, 499. jurisdiction, 499. review, 499. Article 81, 499. 500 (see Regimental Court) \ appeals from, 500 composition, 500. constitution, 500. engineer corps. 500. history, 499, 500. jurisdiction, 499, 500, ordnance corps, 500. restriction on, 499, 500. signal corps, 500. Article 82, 500-502 (see Garrison Courts) % composition, 501. constitution, 501. garrison, 501. history. 500, 501, place, 501, 502. where convened, 501, 502. Article 83, 502-504 (see ^Oth, Slsf, and ^d Articles of War) : extent of jurisdiction, 503. history, 502, 503. jurisdiction, 503. limitation on jurisdiction, 503, 504. offenses, 503, 504. persons, 503, 504. Article 84, 504-506 (see Oaths) : Article 84— Continued. administration of oath, 504. form of oath, 504. history, 504, 505. obligation of oath, 505, 506. procedure, 505, 506. secrecy, 506. Article 85, 506, 507 (see Oatfts) : administration, 506, 507. duty imposed, 507. form of oath, 506, 507. history, 507. obligation of oath, 507. procedure, 507. secrecy, 507. Article 86, 507, 508 (see Contempt) ! actual contempt, 508. constructive contempt, 508. extent of jurisdiction, 508. history, 507, 508. nature of offense, 508. nature of penalty, 508. power of court, 508. procedure, 508. summary character, 508. Article 87, 508, 509 : behavior of members, 508. calmness, 509. decency, 509. history, 509. Artirle 88, 509, 510 (see Challenge^*, challenges, 509. for cause, 509. to array, 509. extent of right, 509. history, 509. judge-advocate not subject to challenge, 509, objections, character of , 510. time of making, 510. waiver of right, 510. Article 89, 510, 511 (see^nmgjimcnt) ; deliberate design, 510, 511. history, 510. effect of failure to plead, 510. obstinacy, 510. standing mute, 510, 511. Article 90, 511, 512 (see Judge Advocate); counsel for defense, 511, 512. history, 511. judge-advocate, duties of, 511, 512. as counsel for accused, 511. as prosecutor, 511, 512. power to prosecute, 511, 512. prosecutor, 511,512. Article 91, 512-51 5 (see Depositions) : application, 513, 514. authentication of deposition, 513, 514. capita) cases, 512. competency of deponent, 515, depositions, 512-515. admissibility, 513-515. competency of deponent, 515. how taken, 514, 515. interrogatories, 514, 515. 744 INDEX. Article 91 — Continued, procedure, 514, 515. history, 513. interrogatories, 514, 5J5. scope of Article, 513, 514, Article 93, 516, 517 (see Oaths) : affirmations, 516. form of oath, 516. history, 516. oath, form of, 516. reswearing of witness, 517. witnesses, 516, 517. not resworn, 517. Article 93, 517, 518 {see Continuance^ : cause, showing of, 517. continuances, 517. history, 517. postponements, 518, note. procedure, 518. reasonable cause, 517. Article 94, 518, 519 (see Tnal)x application of Article, 519. defective proceedings, 519. history, 518, 519. hours of session, 519. record, 519. sessions at other hours, 519. Article 95, 520 (see Tt-ial) : history, 520. members, 520. order of voting, 520. rank, 520. voting, 520. Article 96, 520 (see Sentence) : capital sentence, 520. death sentences, 520. findings, 520. history, 520. majority required, 520. two-thirds to concur, 520. Article 97 : application, 522, 523. character of offenses, 521-523. history, 521. military offenses not subject to, 521, 522. prison, 522. offenses, 521-523. penitentiary, 522, 523. prison, 522, 523. state prison, 533. Article 98 : application, 524. history, 524. nature of prohibition, 524. Article 99, 524-528 (see Punishments) : application of Article, 524-528. dismissal by executive order, 524-528. effect, 526. procedure, 526. revocation, 526. when operative, 526, 527. dismissal by sentence, 534, 525. Mstory, 524. procedure, 524-526. Article 99— Continued. trial of dismissed officer, 527, 528. Article 100, 528, 529 (see Punishment^ i application, 528, 529. cowardice, 529. fraud, 529. history, 528, 529. publication, 529. Article 101, 529-533 (see Punishments)', effect of suspension, 530,533. files, loss of, 532, 533. form of sentence, 529, 533. history, 529. loss of rank, 532, 533. pay, 529-5a3. rank, effect on, 532, 533. suspension, 529-533 effects, 530-533. Article 102, 583-535 : application of Article, 533-535. civil trial, 534. history, 533. inadequate sentence, 634, 535. previous acquittal or conviction, 533-535. previous trial, 533-535. second trial, 533-535. Article 108, 535, 536 (see Statute of Limitations') absence, 535, 536. defense, 535. evidence, 535. fieeing from justice, 536. history, 535. matter of defense, 535. period of limitations, 53S. plea, 535. statute of limitations, 535, 536. suspension of statute, 536. when operative, 535, 536. Article 104, 537-5J3 (see Reviewing Authority) : action on proceedings, 538. record of, 540. history, 537. limitation on review, 540. power of reviewing authority, 643. reasons for action, 541. record of action in review, 541. reviewing authority, 537-543. limit of action by, 540. revision, 541. Article 106 (see 104ift Article of War)i arson, 543. assaults, etc., 543. commanding general, 543, 444. confirmation by President, 543, 544. deserters, 643. execution of sentence, 643, 544. guerillas, 543. history, 543, 544. mutineers, 543. robbery, 543. Tiolation of laws of war, 543. Article 106, 544, 545 : action of President, 645. approval of sentence, 544, 545. INDEX. T45 j4rticle XQ%— Continued, confirmation, 545. form of action, 545. history, 544, 545. Article 107, 545 {%ee Reviewing Authority)', brigade, separate, 545. * confirmation of sentence, 545. dismissal, 545. division, 545. general commanding army, etc., 545. Mstory^ 537. Article 108, 546. (See Reviewing Authority.) Article 109, 546 (see Reviewing Authority): commanding- general in the field, 546. history, 537, 543. officer commanding for the time being, 546. Article 110, 546 (see Reviewing Authority); brigade commander, 546. field officer, 546 history, 546. post commanders, 546. Article 111, 546 (see Reviewing Authority)'. apjDlication of Article, 546. procedure, 546. se;iterice, suspension of, 546. Article 112, 546-553 (see Pardon): commutation, 552. conditional pardons, 550. constructive pardons, 550. continuing punishments, 550. Jiistory, 547, 548. mitigation, 551, 553. operjttion of Article, 548, 549. pardoning power, 548. procedure, 551. punishment, effect on, 550. remission, 557. Article 113, 553 (see iSecord) : duty of judge-advocate, 553. history, 553. judge -advocate general, duty, 553, Article 114, 553, 554 (see Record) : accused entitled to copy, 553, 554. application for copy, 553, 554. history, 553. < when entitled, 553, 554. Article 115 (see Court of Inquiry) : application for court, by whom made, 556, challenges, 557. civilian not entitled to court, 556. contempts, 557. history, 555, 556. nature of inquiry, 556, 557. Article 116 (see Wbth Article of War) : composition of court, 557, history, 555, 556. recorder, 557. Article 117, 557 (see MUh Article of War) : form of oath, 557. history, 555, 556. member, oath of, 557. procedure, 557. recorder, oath of, 557. A.rticle 118 (see llbth Article of War) : Article 11%— Continued. examination of witnesses, 557, 558. history, 555, 556. procedure, 557, 558. Article 119, 558 (see Court of Inquiry)', application of Article, 558. history, 555, 556. nature of opinion, 558. opinion, 558, 559. remarks by court, 559. Article 120, 559 (see 115th Article of War.) Boards, military : examining, 230-236. in desertion, 241. retiring, 236-238. survey, 238-241. to determine character, 242. Boards, examining, 230-236. approval of report, 235, 236. Boards, examining— Continued, authentication, 235, authority for, 280. challenges, 232. composition, 230, 231. m case of volunteer ofBcer, etc., 230, 231. in general, 230, 231. confirmation, 236, 236. examinations, 232-234. conduct of, 232, 233. marks, 233. oral, 232. physical, 232, 233. subjects, 232, 233. weights, 233. findings, 234. judgments, 234. medical officers, 232. organization, 232. procedure, 232-236. record, 234, 235, 712-717. report, 234, 235. review, 235, 236. swearing, 232. subjects of examination, 233, 234. Boards of survey, 238-241 : affidavits, 229, 239. approval of report, 240. authority, 238. composition, 238, 239. constitution, 239. disapproval, 240. desertion, 241. evidence, 239. fixing of responsibility, 238, 239. no power to condemn, 239, 240. power, 239, 240. procedure, 239, 240. record, 240. report, 240, 241. approval, 240. as voucher, 241. disapproval, 241. review, 240, 241. witnesses, no power to summon, 239. Board of survey in desertion, 241 (see Boards oj Sui-vey) r constitution, 241. procedure, 241. purpose, 241, 242. report, 241, 242. Boards to determine character : constitution, etc., 242. powei's, 242. procedure, 942. report, 242. Body, flogging, marking, etc., prohibited, 624. Branding, prohibited, 624. (See Punishments.) Breach of arrest, 63, 481 (see 65tA Article) : actual, 63. character of offense, 481. construction, 63. penalty, 63. technical, 63. INDBX. U1 Breftliinff And entering, 443, 444. (See Burglary.) Brigade, separate, 493, 493 (see 73d Article of War) : definition, 493, 493. what constitutes, 493, 493. Britisli Articles of War : Albemarle's, 340. Arundel's, 340. Code of 1766, 340. Code of 1774, 340. Henry VII., 340. history, 339, 341. James II., 340. Northumberland's, 340, Eichard II., 339. Eupert's, 340. Burden of proof, 363, 366, 367 : amount necessary to convict, 366, 367. defendant, 267. rule for determining, 366. Burglary (see 58tft Article of War) : breaking, 444. actual, 443, 444. constructive, 443, 444. building, 444. definition, 443. felony, 443-446. execution of, 443-445. intent, 446. time, 444. Calmness, 60S, 509. (See Behavior of Members.) Camp, absence from, 403-404 (see 63(2 Article of War): false alarms in, 413, 414. followers, 61, 53, 478, 479. lying out of, 401, 402. retainers to, 51, 52, 478, 479. Capacity, criminal, 134-128. (See Defenses.) Capital crimes, when triable, 476, 477. (See 5Sth and 62d Articles of War.) Capital sentences, 543, 644 (see 105th Article of War) : approval of, by President, 543, 544. exceptions, 543, 544. suspension of, 546. (See 111th Article of War.) when executed by commanding general, 643,644. Captured property, 361.-363 (see Sth Article of War): disposition of, 363. personal property, 363. title to, .%3. Causes of cliallenge : accuser, 88. bias, 89. interest, 89, 90. material witness, 88. member of previous tribunal, 88. prejudice, 89. prosecutor, 88. raiilc of member, 89. opinion, 89. Certificates, 360, 365, 366 (see Absence ; see, also, 7th and 12th Articles of War) : absence, 360, 365. Ctrt'ittcatea— Continued. contents, 360, 365, 366. false, 365, 366. rendition of, 360, 366. Certified copies of documents, 278. (See Docu- mentary Evidence.) Challenges, to duels, 394-398 (see Duelling) : carrying, 397. definition, 396, 397. friends, 398. how determined, 398. Intent, 397. nature of, 398. promoters, 394, 398. seconds, 394, 398. what constitutes, 396, 397. Challenges to members, 85-90 (see SSth Article of War) : accuser, 88. bias, 86, 88. by accused, 85-90. by judge-advocate, 87. cause stated, 85, 86. causes: accuser, 88. bias, 89. material witness, 88. member of previous court, 88. opinion, 89. prejudice, 89. prosecution, 88. rank of member, 89. record of, 193. classification, 86. competency presumed, 80. exercise of right, 86. grounds of objection, 88, 89. incompetency, how established, 87. Individual, 86. judge-advocate not subject to, 85, note, 509. material witness, 88. nature of right, 85. number, 85, 86. opinion, 89. presumptions as to competency, 86. procedure, 85-88. rank of member, 89. testimony in support, 87, 88. to favor, 86. voir dire, 88. waiver, 87. when made, 87. withdrawal of member, 86. Character, 130, 265, 266 (see Evidence): admissibility of testimony to, 130. boards to determine, 343, 343. defense, 130. effect, 130. nature, 130. purpose of testimony as to, 130. rebuttal, 130. record, in support of, 130. services, 130. testimony to, 265, 366. 748 INDEX. Charact er— Continued. when importanD, 265. Charges aud specifications, 69-81, 641-643 : action on, by commanding officer, 79. actioQ on, by convening authority, 80. allegations in, 72-75. as to intent, 64^, 643. as to names, 72. as to persons, 72. as to place, 73, 74, 643. as to time, 73, 74, 642. alternate forms, 72. amendment of. 36, 75. averments, 72-75. by whom preferred, 76. civil offenses, 76. conditions, 69-75. convening authority, action on, 80. definition. 69. differences in, 108. documents in, 75. essential conditions, 69. evidence to be excluded, 71. exclusion of evidence, 71. forms, 69, Ti. (See Appendix, 643.) general considerations, 641-643. how drawn, 69, 70. joint, 75. language-used, 643. list of witnesses, 75. modification of, 36, 75. member, 72. objections lo, 109. oral statements, 75. originate with civilians, 77. originate with enlisted men, 77, papers to accompany, 77-79. preferred by whom, 76, 77. preparation of, 78. previous convictions, 77-79, record of. 194. service on accused, 80. signature to, 76. specifications, 641-643. statement of service, 79. submission of, 78, 79. surgeon's report, 79. when preferred, 77. withdrawal, 75. witnesses, list of. 75. Charges of dei-iertion, 429 : definition, 4'.'9. how raised, 439. renioval of, 429. restoration to duty, 429. statutory power to remove, 439. Chief of engineers, power to convene regimental courts. 499. 500. Chief of ordnance, power to convene regimental courts, 499. 500, Chief siffii.l1 officer, power to convene regimental couns. 499, 500. ChiTftlry, Court of, 13. Citizens, amenability to trial, 46, 51, 52: Citizens— Confmued, injuries to, 435, 436. CiTil claims, when triable, 476. (See tUh and 62d Articles of War.) Civil employees, subject to discipline when, 478, 479: when triable, 478, 479. (See 63d Article of War.) CiTil offeuRes, when triable, 76. (See b%th and 62d ArticUiS of War,) Civil riarhts, enforcement of, 331, 333. Civilians, charges may originate with, 77. injuries to, 435, 436. Claims, fraudulent,463. (See mth Article of War.) Classification of military law, 4. Classlticatiou of military tribunals, 16. Clemency, exercise of, in time of war, 543, 544 (see 105(/i Article of War) : recommendations to, 156, 157. Clerk to court-martial (see Reporter^ 40, 41) : detail, 41. duties, 40, 41; enlisted n?.an as, 41. introduction of, 85. compensatiuM, 41. Client, t>Kr, 288. (See Attorney and Client,) Closed doors, i;M, 135. (See Sessions.) Clot>ed sessioiLS, 191, 19^ : record of proceedings in, 191, 192. Clothing, 3(j0-364, 372-374 (see I7th Article of War) : accountability for, 360, 363, 364. improper disposition of, 372-374. ownership of, 374. sale of, 37^374. title to, 372-374. wasting, 372. Coercion, 127, 128 (see Compulsion) : marital, 128. orders, 126. Command : rule of, 559, 560. succession to, 559, 560. Commander of guard (see &7th and GSth Articles of War) : custodian of prisoners, 485-487. receiving prisoners, 485, 486. release of prisoners, 486, 487. repoit of prisoners, 486. suffering an escape, 486, 487. Commanding general : convening officer, 20. decisions of. 6. power to execute capital sentences, 543, 544. limitation on, 543, 644. Commanding officer : action on charges. 79, 80. arrests, power to impose, 482. authority over arrests, 481-483. disrespect to, 316, 317. drunkenness on duty, 408. on duty, 408. power to arrest, 481-483. Commissioned officers : absence without leave, 403, 404. INDEX. 749 CommisHiODed officers— Confznwed. amenability of, to military law, 46. arrest, 61-66. behavior in quai-ters, etc., 436, 437. breach of arrest, 63. conduct prejudicial to good order, etc., 472-478. conduct unbecoming an officer and gentlemaD, 46ti-472. confinement of enlisted men, 61, 66-68. constructive desertion, 431. death of, 561, 562. dismissal, by court-martial. (See 99Wi Article of War.) by executive order. (See 99fft. Article of War.) confirmation of sentence, 544. divine service, behavior at, 433, 484. drunk on duty, 406-409. effects of decedents, 562. (See I'Zlth Article of War.) entertaining a deserter, 431. failing to repair to place of parade, 404, 405. false alarms, 414, 415. forcing a safeguard, 438, 439. inferior in rank, not triable by, 497. lying out of quarters, 401, 402. maintenance of order on march, 435, 436. oaths, profane, penalty, 434. ofiE duty, 408. on duty, 408. preferring charges, 76, 77. profane oaths, 434. punishments of, 163-181. receiving prisoners, 485, 486. releasing prisoners, 486, 487. reparation for damage, 435-437. resignation, leaving post on tender of, 431. triable only by commissioned officers, 497. violence to persons bringing provisions, 437. Commutation, 210, 552 (see Pardons and I12th Article of War) : by whom exercised, 210. definition, 210. effect, 210. how exercised, 210. restriction on power of, 210. Company, Articles of War to be read to, 562. Competency of witnesses, 251-261 : definition, 2^1. grounds of incompetency : crimen falsi, 253. felony, S52, 253. idiocy, 258. infamy, 252, 253.. infancy, 258, 3:9. insanity, 259. interest, 254, 258. lunacy, 259. treason,. 252, want of religious belief, 359. understanding, 258, 359. objec'ions to, l'i2, practice of U. S. Courts, 253. presumption respecting, 260. Competency of Witnesses— C7oniin«ed. procedure, 254, 360, 361. tendency of legislation, 252. voir dire, 260, 261. Composition of Courts-martial (see 75^7i. 76/A, 77th, 7Sth, IQth, SOth, 8lst, and 82d Articles of War) : deficiency in members, 495. eligibility to membership, 494, 495. field-officer's court, 498, 499. garrison courts, 500-502. general courts, 26-41, 494-497. inferior courts, 30, 498-502. inferiors in rank, 28, 497. judge-advocate, 33-40, 493, 494. marine corps, 26, 496, 497. maximum membership, 29. militia, 27, 495, 496. members, 494-502, membership, 26, 27. minimum membership, 29, 494, 495. number of members, 27. regimental courts, 499, 500. regular officers, 495. volunteers, 495, 496. Compulsion, 137, 128, 416. (See Defenses.) Concurrent jurisdiction, 43. Conditional pardons, 206, 207, 550 (see Pardons and 112^71 Article of War) : amnesty, 207. conditions precedent, 207. subsequent, 307. form, 207. how exercised, 207. Conduct, infamous, 468 (see 61st Article of War) : prejudicial to good order and military discipline, 472-478. scandalous, 468. standard of, for officers, 468-470. unbecoming an officer, etc., 468-473. Conduct of prosecution, 123. Conduct prejudicial to good order and military discipline, 473-478 (see 63d Article of War) : breaches of the peace, 475. capital crimes, 473. character of offense, 473. charging of offenses, 476, 477. crimes, when chargeable, 473-476. disorders, 474. drunkenness, 474. duty, standards of, 472-473. ' findings, 477. fraud, 474. lesser kindred offense, 477. military discipline, relation to, 473, 474. duty, standard of performance, 473, 474. minor included offense, 477. nature of offense, 472-478. neglects, 418, 474. negligence, 473, 474. prejudice of good order, etc., 474-475. standard of performance, 473, 474. Conduct unbecoming an officer and geutleman, 408-472 (see QUt Article of War) : 750 INDEX. Coudnrt aubecomiD^ an officer and gentleman— ConiiniLed. abusive language, 469. assaults, 471. character of offense, 468. 469. conduct by whom determined, 468. need not directly affect military service, 470. crime, when chargeable, 469-472. custom of service, 469. debt, 471. divorce, fraudulent, 471. drunkenness, 471, 472. duplication of pay accounts, 470. evidence, 468. false statements, etc., 469. fighting, 469, 470. fraud, 469-471. gambling, 471. infamous conduct, 468. intoxication, 468. nature of offense, 468-470. neglect of pecuniary liability, 470. pay accounts, duplication of, 470. penalty, 471, 472. pledge, violation of, 470. scandalous conduct, 468. scope of offense. 468, 469. violation of pledge, 470. Confessions, 268, :^69 (see Evidence) : admission, 268, 269. corroboration, 269. exclusion, 268, 269. promises, 268. threats, 268. voluntary, 268, 269. Confinement (by sentence), 185-190 (see Punish- Tnent) : ball and chain, 187. effects, 185. execution of sentence, 188-190. hard labor, 187. labor required, 485. military post, 186, 187. military prison, 186, 187. penitentiary, 185. sohtary, 187, 188. State prison, 185. status. 185, 485. work required of prisoners, 485. Conflueraent of eulisted men, 61, 66-68 (see 65f7L Article). arrest of non-commissioned offlcers, 66. by whom imposed, 61, 66. character of restraint, 484. commissioned officers, power as to, 61, 66. company commanders, powers of, 61, 66. duration of, 64, 67, 68. employment during, 66, 67. execution of, 66, 484. guard, commander of, 485-487. guard report, 67. how imposed, 61, 66, 67. labor during, 66, 67, 484. officers charged with, 67. Confinement of enlisted men^ContinKed, officer of the day, duty of, 68. order for, how executed, 66. provost marshal, 485-487. release from, 67, 68, 486, 487. report of, 67. status, 66, 67, 4S5. termination, 64, 67. work required during, 66, 67, 485. written charge, 67. Confirmation of sentence, 546 (see \QWi Article of War) : limitation of power, 546. Congress, contemptuous or disrespectful words against, 375, 376. Conscription, 51. Conscripts, 51. Conspiracy to defraud, 463. (See 60£/i Article of War.) Constable of England, 13 : authority, 13. court of, 13. duties, 13. judicial powers, 13, Constable's Court, 13 : history, 13. jurisdiction, 13. Constitution of Conrts-martial, 17-25, 490-fi02 (see 72d and 73d Articles of War) : accuser and prosecutor, 17-25, 491, 492. army, commander of, 17. brigades, 492, 493. delegation of authority, 19. divisions. 492, 493. field officer's courts, 23, 498, 499. garrison courts, 24, 500, 502. general courts, 17-22, 489-494. inferior courts, 22-25, 498-502. marine corps, 496, 497. militia, 495, 496. peace, time of, 490-492. power to convene, 17-25. President as convening officer, 17. regimental courts, 499, 500. regular offlcers, 495. separate brigades, 21. summary coui'ts, 24. volunteers, 495, 496. war, time of, 490-492. Constrnctive contempt^ 506. (See 86£7b Article of War.) Constrnctive desertion, 431 (see DesertiorC) : nature of offense, 431. statutory character, 431. Constrnctive pardons, 207 (see Pardon^ : definition, 207. effects, 207. how exercised, 207. pleading, 207. Contempt of Court, 139, 140, 507, 608 (see mth Article of War) : actual, 139, 508. constructive, 139, 508. direct, 139. INDEX. 751 Contempt of Court— Con tmue(2. jurisdiction, 508. power to punish, 139. procedure, 140, 508. punishment, 140; record of proceedings, 140. witness, faihire to answer, 508. Contemptuous words, 315, 376. (See President.) Coutiuuauces, 90, 91 (see 93ii Article of War.) application, 90. cause, 90. evidence, 90. grounds for, 90, 91. procedure, 90, 91. reasonable cause, 90, 91. restriction on, 90. Contract of Enlistment, 55 : character, 55. discbarge, 56. oath, 56. termination, 56. Convening Authority, 17-25, 489-494 (see Constitu- tion of Courts-martial) : accuser, 17, 491, 492. action on charges, 79, 80. attribute of command, 19. commander as prosecutor, 17, 18. commanding general as, 19. , delegation forbidden, 19. department commander, 17. division commander, 19, 492, 493. general courts, 17-32. inferior courts, 23-25. in time of peace, 17-19. in time of war, 20-25. judge-advocates, 492, 494. nature, 19. President, 19. separate brigades. 21, 492, 493. superintendent of military academy, 22. Conveniug Order : contents, 691, 703. reading of, 85. Conviction, previous, plea in bar, 100, 101. ConvictB, military, 58. Copies, 277, 278, 283, 284 (see Documents) : as evidence. 277-283. certified, 2, 278. examined, 278. exemplifications, 277, 278. when receivable, 275-278, 283, 284. Corps of Engineers, regimental courts in, 499, 500. (See Slst Article of War.) Corresponding irith enemy, 417, 418. (See ib(h and iGth Articles of War.) CoDusel, 36-40 (see Judge-Advocate) : access to, 40. assistance of, 38, 40. duty of, 36, 38, 39. inferior courts, 40. judge-advocate as, 36. member as, 40. restriction on, 39, 40. right to, 38. Counsel— Continued. selection of, 39. to assist judge-advocate, 38. Countersign (see 44th Article of War) ; application of, 416, 417. malting known, 416, 417. parole, 417. purpose, 417. to whom imparted, 416, 417. use, 417. watchword, 416, 417. Courts : decisions as evidence, 281. Conrts-martinl : authority, 15. calling witnesses, 130. classification, 16. composition, 25-41. constitution, 17-25, closed sessions, 134, 135. control over prosecution, 133. created, how, 16. duties in respect to record, 191. executive agencies, 15. functions, 15. histoiy, 13. hours of session, 133, independence, 156. origin, 13. recalling witnesses, 130. records of, 191-198. records as evidence, 282. responsibility for record, 130, revision proceedings, 158, 166. sessions, 133. Courts of honor, 16. (See Courts-martial.) Courts of inquiry, 220-224 (see 115t}ir-12lst Articles of War) : application for, 221, ^ challenges, 221. composition, 220, 221, 557. conduct of inquiry, 222, constitution, 220, 221, 555, 556. evidence, 221, 222. function, 220. history, 555, 556. oaths, 557. object, 220. opinion. 222, 223, 558, 559. procedure, 221, 557-559. purpose, 220. record, 222. as evidence, 227. recorder, 221, 557. witnesses, 557. Cowardice, 415, 416 (see 42d Article of War) : dismissal for, 528, 529. publication of sentence, 528, 529. Credibility of witnesses, 290-292 : character, 291, 292. conflicting testimony, 291. cumulative testimony, 292, 293. definition, 290. determined by court, 290, 752 INDEX. Credibility of Witnesses— Continued, impeaching credit, 291. inconsistent statements, 29,3. number of witnesses, 292, 293. reputation, 291, 292. Crime : charge of, under Article 61, 469-472. charge of, under Article 62, 47S-476. Crimen faUi, 253, 254 (see Ehjiderui^ : definition, 253, 254. procedure, 254. removal of disqualifieatioa, 254. Criminal capacity* 124-128. Criminating questions, 288 : by whom determined, 288. court, power of, 288. objection to, 288. privilege of witness, 288. profert of the person, 288. Cross-iiiterrogatorieSf 296. (See Depositions.) Camnlatire evidence, 292,293. Customs of service, 10 : authority, 10. conditions essential to validity, 10-12. extinguishment, 11. satiction, 10. source, 10. usages, 10, 12. validity, 10. Cnstom of war, 10. (See Customs of Service.) Damage, to private property, 435-437 : to public property. 363-:^65, 369-372 (see 10th and 15//1. Articles of War) : reparation for, 435, 436. stoppages, 369-3:2. Death, punishment of, 165. 166 (see 9Qih and I05th Articles of War) : approval of sentence, 543, 544. execution, 165, 166. * limitatioD, 165. sentences, 520. when impossible, 165. Debts, private, neglect of, 471. (See Gist Article of War.) Decedents, estates of, 561, 562 (see 125th, 126th, and 127th Articles of War) : inventory of effects, 562. Decisions of Courts, authority of, 6 : evidence of, 281. Decisions of heads of executive depart- ments, 6. President, 6. Declarations against interest, 269. Defense, 124-\3S (see Ptosecution) : accused as witness, 132. address, 129. character fn, 130. conduct of, 129. self-, 448, 449 (see Homicide), Defenses (see Defense) : alihi, 129. capacity to commit crime, 124-126. tests, 124-126. complete, 124-126. Def en ses — Conimued. compulsion, 127, 128. criminal capacity, 324. drunlienness, 126, 127. duress, 127, 128. force, 127, 128. idiocy, 125. ignorance of fact, 128, ignorance of law, 382. infancy, 125. insanity, 125. limitations, statute of, 111-113. lunacy, 125. marital coercion, 128. miilitary orders, 128. mistake of fact, 128. obedience to orders, 128. orders in defense, 128. statute of limitations, 111-313. sufficient, 124. valid, 124. Degrading questions, 286, 289, 290. (Bee Evidence.) Deliberations : behavior of members, 138. closed sessions, 335. control of President, 138. Demurrers, 113, 114 (see Pleas) : answering over, 114. basis; 113. effects, 113. grounds of, 113. how decided, 113. issue of law, 113, 114. judgment, 114. nature, 113. not favored, 113, 114. office of, 113. procedure under, 113, 114. substance, matter of, 113, 114. waiver, 114. Department commander : action on charges, 80. convening authority, 17-23, 489-494. reviewing authority, 199-210. Departures, 271, 272. (See Evidence.) Deponents, 294-298 (see Depositions) : competency of, 297. credibility, 297. Depositions, attestation, 294-298, 512-515 (see mst Article of War) : authority for, 295. capital cases, 295, 296. competency of deponent, 297, 298 court, power over, 296. deponent, 296-298. dismissal of officer, 295, 296. distinguished from affidavits, 294. evidential value, 297. execution, 296, 297. foreign countries, 298. interrogatories, 296. limitation iu use of, S94, 295. objections to, 297. procediye, 295, 296. INDEX. 763 Depositions* attestation — Continued, territorial restriction, 295, 296. Deserters, 423-428 (see Desertion and ilthr^lst Article of War) : apprehension of, 483-428. • approval of death sentences, 543. arrest of, 423-428. by whom made, 423-428. arrest of, legality of, 423-428. board of survey on, 241. delivery, 425. deposits, forfeit. procedure, 435. proceeds, application, 434, 435. Profanity, 434, 435 (see 53d Article of War) : nature of offense. 434, 435. penalty, 435. Professor^ at Military Academy : not eligible as members of courts-martiai, 26. status, 20. Proitibited enlistments, 346, 300, 351 aliens, 346. deserters, 350. infants, 346, 350. insane persons, 350. intoxicated persons, 350. minors, 350. Protection, to persons of citizens, 435-437 (see 5^th-5Sth Articles of War) : to property, 435-437. Property, 361-365 (see 9Wi, 10th, 54th, 5bth, 56th, 57th, and 58ih Articles of War) : accident, 364, 365. avoidable, 364. inevitable, 364. unavoidable, 364, 365. accountability for, 364. disciplinary, 364. fiscal, 364. blank receipts, 464. captured, 361-363. injuries to, on march, 435, 436. receipts in blank, 464. responsibility for, 3G0-364. rendition of returns; 360-364. returns of, 360-364. Prosecuting witness, 123. Prosecution, 119-124 (see Ti-ial) : address in opening, 119. close of, 124. conducted by judge-advocate, 123. independence of judge-advocate, 123. introduction of testimony, 119-124. power of court over, 123. prosecuting witness, 123. prosecutor, 133. testimony for, 119-134. Prosecutor, 17, 18, 88, 138. (See Accuser and Chal- lenges.) Protests, 145. (See Finding.) Provisions, bringing in, 437, 438 (see 5Uh Article of War) : violence to persons, etc., 437, 438. Provoking speeches, etc., 391-396. (See 25th Arti- cle of War.) Publication of sentence, 166. (See \00th Article.) Public documents, 375-283. authentication, 275. copies, 275. court-martial records, 283. descriptive tests, 283. evidential value, 276. executive departments, records, 278, 379. journals of Congress, 280, 281. judicial records, 380, 281. judgments, 281. military orders, 382, morning report book, 383. outline cards, 383. pay accounts, 283. physical examination paper, 283. previous convictions, 78. primary evidence, 276, 277. production, 275. proof, 833. i-ecords : court-martial, 282. executive departments, 278, 279. posts, 282, 383. secondary evidence, 276, 277. state laws, etc., 380. territorial laws, etc., 380. Public admonitions, 316. Public lands : removal of intruders from, 331, INDEX. 765 Public sessions, 134, 135. (See Sessions.) PunishineiitSi 163-191 {see Sentence) ', commissioned officers, 165-182 : confinement; see imprisonment, 167-170, 185-190. ball and chain, 187. commissioned officers, 167-170. enlisted men, 185-190. hard labor, 187. solitary, 187. cruel, 163. death, 165, 183. execution, 165, 16i>. discharge, 183-185. execution, 184, 185. dismissal, 166, 167. execution, 166, 167. publication, 166. statutory consequences of, 166, 167. disqualification for office, 167. executive orders respecting, 163. fines, 175, 176. forfeitures, 177-179. imprisonment, 167-170, 185-190. execution, 168, 169, 187-189. penitentiary, 169. state prison, 169. increase of, 164. limits of, 163 727-734. reduction in rank, 174. to the ranks, 175, 183. reprimands, 181, 182, 190. restrictions on, 163. solitaiy confinement, 187. sources, 165. stoppages, 178-181. suspension, 171-174, 182. unusual, 163. Pardoning power, 204-210 (see lOQth Article of War): commutation, 210. conditional pardons, 206. constructive pardons, 207. continuing punishments, 306. effects of exercise, 205. exercise of, in time of war, 543, 544, general power, 200, 204, 205. mitigation, 209. not retroactive, 207. remission, 208. source, 208. Pardons, 204-210 (see Pardoning Power; also, lOoth and 112Var, 562 (see 128th Article of War) : Reading over testimony, 121. Receipts in blank, 464. (See 60th Article of War.) Receiving stolen goods, 452. guilty knowledge, 452. intent, 452. Becommendations to clemency, 156, 157, discretionary, 156. not obligatory, 157. procedure, 157. reasons for, 157, record, not part of, 157. several may be submitted, 157. signatures to, 157. to whom made, 157. when appi'opriate, 157. Record, 191-198, 553 (see 113th Article of War) : accused entitled to copy, 553. adjournments, 195. arraignment, 193, 194. 766 INDJEX. llecorfl— Continued, authentication, 195, 196. challenges, 193. changes in membership, 192, 193. charges and specifications, 194. closed sessions, 19], 192. disposition of, 653. contents, 191. control of, 191. convening order, 192, 193. copy of, to accused, 197, 553. definition, 191. destruction of, 197. disposition of : general courts, 197. inferior courts, 197. erasures, 196. exclusion of matter, 195, findings, 195. general character, 191, 192. hours of session, 190. interlineations, 196. judge advocate, duty respecting, 553. kept by judge advocate, 191. loss of, 197. membership, 192, 193. open sessions, 191, 192. organization of court, 193. pleas, 196. presumption as to regularity, 195. responsibility for, 191. revision, 196 sentence, 195. separate in each case, 192. swearing of court, 194. testimony, 192, 194. Becords of conrts-martial : as evidence, 282. Redirect examiuation, 285, (See Sxamination of Witness.) Bedress of Wrongs, 224-228 (see Wth and 2ath Articles of War) : appeals, S24, 225, 227. commanding officer, 224, 225. enlisted men, 225-228. method in case of officer, 224, 225. method in case of soldier, 22S-228, procedure, 227. regimental court for doing justice, 223-228. appeals, 227. jurisdiction, 225-227. Beduced membership, 29. Beduciiig questions to writing, 121. Beduction, 174, 182 : in rank, 174. to the ranks, 182. Refreshing memory, 292 (see Evidence) : memorandum, 292. notes, by whom made, 292. Befnsal to receive prisoners, 485. Begiment, Articles of War to be read to, 562. Begimental conrt, 22, 216, 217, 499-502 (see 81