mmmimiimimmmmmfmim9>*m,.\i\ j\\wnm\ 'iib r iMj miMH I BfllMU a CORNELL LAW LIBRAR m aBa mmuuui m Ln m m Tra-»»^.r„^^^^»^,j^^y^p- Olorn^U ICam i>rl|ool Slibratji Cornell University Library KF 7209. W79 1920 Military law and precedents / 3 1924 020 024 570 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020024570 MILITARY LAW AND PRECEDENTS X' ^.i *> WILLIAM WINTHROP Colonel, United States Army AUTHOR OV THE ANNOTATED DIGEST OF OPINIONS OF THE JUDGE ADVOCATES GENEKAL SECOND EDITION REVISED AND ENLARGED WASHINGTON GOVERNMENT PRINTING OFFICE 1920 Wab Depaktmbnt. Document No. 1001. Offlce of The Adjutant Qeneral. Entered according to Act of Congress, in the year 1886, by WILLIAM WINTHROP, In the Office of the Librarian of Congress, at Washington, D. C. Copyright, 1S96, By William Winthkop. Wab Depabtment, Washington, February 9, 19W. WInthrop's Military Law and Precedents, second edition, is, with the per- mission of BBI^. Gen. W. A. Bethel, United States Army, owner of the copyright, reprinted fdr the information of the service. [062. 1^; A. 6. 0.] Bt obdeb of the Secbetabt ae Wab : PEYTON C. MABCH, General, Chief of Staff. OrFiciAL : P. C. HARRISf The Adjuta/ni Oeneral, TO HON. MARTIN F. MOERIS, ASSOCIATE JUSTICE OF THE COURT OF APPEALS OF THB DISTBICT OF COLUMBIA, AS A TRIBUTE TO HIS EMINENCE AS A LAWYER AND A JUDGE, AND AS AN EXPRESSION OF THE AUTHOR'S PERSONAL ATTACHMENT AND ADMIRATION, THIS WORK IS RESPECTFULLY DEDICATED. FBEFACE TO THE FIBST EDITION OF 1886. In view of the absence and want of a comprehensive treatise on the science of Military Law, it has beeai for some years the purpose of the author — a member of the bar in the practice of his profession when, in April, 1861, he entered the military service — to attempt to supply such want with a work, which, by reason of its extended plan and full presentation of principles and precedents, should constitute, not merely a text book for the army, but a law book adapted to the use of lawyers and judges. The present treatise was substantially completed in 1880, when the author was called upon to publish his annotated " Digest of Opinions of the Judge Advocates General," and some of the references embraced in the original work were inserted in the notes of that publication. Since its date certain unusually Important military trials and investigations have been had, sundry valuable opinions upon questions of military law have been pronounced by the courts and other legal authorities, and our written military law — especially the Army Regulations — ^has been materially modified. Meanwhile also, in England, the time-honored Mutiny Act and Articles of War have wholly passed away and been succeeded by the new •• Army Act " and " Rules of Procedure," — a reform of great interest to the military student, — and this legislation, &c., has been copiously illustrated by the excellent official " Manual of Military Law " and a series of minor com- mentaries. In view of these changes, the present work has been revised, and in great part re-written, and the references have been brought down to the end of the year 1885. Apart from the views and conclusions of the author, the precedentx, now first collected and considered, will, it is believed, be found to be valuable both as law and history. A complete history, for example, of the late war could scarcely be written without taking into consideration the more important trials and acts of military government of that period instanced in the course of these volumes. The author, however, will be fully recompensed for his labors if the same shall result in inspiring an interest in the study of Military Law as a depart- ment of legal science not heretofore duly recognized. The lawyer who, if he has not been led into the old error of confounding the military law proper with martial law, has perhaps viewed it as consisting merely of an unimportant and uninteresting scheme of discipline, will, It is hoped, discover in these pages that there is a military code of greater age and dignity and of a more elevated tone than any existing American civil code, as also a military procedure, which, by its freedom from the technical forms and obstructive habits that embarrass and delay the operations of the civil courts, is enabled to result in a summary and efficient administration of justice well worthy of respect and imitation. The military student, on the other hand, in examining the cases cited, as adjudicated by the courts which expound the international law, the common law, the criminal law, and the maritime law, will, it is thought, more fully appreciate the connection between the military law and the general law of the land ; — ^will perceive that the former, while distinct and individual, 6 6 PBEFACE TO THE FIRST EDITION OF 1886. Is not an Isolated exception, but a branch of the great body of the public law, variously and harmoniously affiliated with the other branches of the system. That Military Law, from its early origin and historical associations, its experience of many wars, its moderation in time of peace, Its scrupulous regard of honor, its inflexible discipline, its simplicity, and its strength. Is fairly entitled to consideration and study, is a belief of the author which he trusts his readers will share. FBEFACE TO THE PRESENT EDITION. Since the publication of tlie original edition of this Treatise in 1886, the scope of our military law has been enlarged, and its procedure modified, by new legislation of Congress; notable adjudications illustrating military questions have been made by the civil courts, and opinions rendered by the law officers ; important military trials have been held ; the Army Regulations have been re-codified ; and the discretion of courts-martial in the imposition of punishment in cases of enlisted men has been defined and restricted by statutory authority. A new edition of the work, revising the original text and bringing down the law and rulings to the present date, has thus seemed desirable. In preparing it, the subject of the Law of War, which was previously left somewhat incomplete, as a consequence of the author's absence at a station distant from Washington, has been materially supplemented. Meanwhile there have been published two editions, of 1887 and 1893, (revised in 1895,) of a compendiun^ of the text of this treatise, entitled an "Abridgment of Military Law," which has been adopted by the Secretary of War, and is now used, as the text book on Military Law for the Instruction of the Cadets of the Military Academy. Pari passu with this edition there has been prepared by the author, and recently published, a new annotated edition of the " Digest of the Opinions of the Judge Advocates General of the Army," covering the period from the date of the preceding edition in 1880 to 1895. This work will be frequently referred to in the notes herein. Since the plates of the present edition have been cast, there hasbeen completed in the War Department a new set of the Army Begulatfons, with which, when published, the Begulations mainly referred to in these volumes — those of 1889 — may be compared and the new numbers noted. The most material portion of the new Regulations — those relating to Coubts-Mabtial — ^have been extracted and are inserted in the Appendix at the end of Volume IL Washinoton, D, C, November 1, 1895. 1 NoTK. — The smaller type used in this reprint has necessitated repaging. Tlic paging of the 1896 edition Is here preserved, however, indented in the text at the left of the page. For typographical reasons the notes are renumbered, but It Is believed no considerable inconvenience will be caused thereby. The table of contents and index refer to the new paging. 8 CONTENTS. PART I. CHAPTER I. Page. The Sttbject Diifined and Divided — Constitutional Pkovisions 15 CHAPTER II. The Wbitten LfAW — ^Articles or Wab and othejs Discipmnabt Statutes. 17 CHAPTER III. Abmt Regxtlations and Okdebs 25 CHAPTER IV. The Unwbitten Militaby Law 41 CHAPTER V. The Cotibt-Maetial — Its Histoby and Natube 45 CHAPTER VI. The Constitution of Geneeal Coubts-Mabtial 57 CHAPTER VII. The Composition of Genebal Couets-Mabtial 70 CHAPTER VIII. The Jueisdiction of the Geneeal Couets-Mabtial 81 CHAPTER IX. The Peoceduee of Genebal Couets-Mabtial — ^Abbest 110 CHAPTER X. The Chaboe 132 CHAPTER XI. The Fobmal Obdeeino, Meeting, &c., of the Couet 158 CHAPTER XII. The Peesident and Membees 170 CHAPTER XIII. The Judge Advocate 179 9 10 CONTENTS. CHAPTER XIV. Page. Chaij:£noes ; 205 CHAPTER XV. Obganization — ^Akkaignment — Continuance — ^Noixe Pbosequi 231 CHAPTER XVI. Pleas and Motions 249 CHAPTER XVII. The Tbial : — Hovbs of Session — Opening — Coubse of Pboceedings — De- fence — Statement — Contempt 281 CHAPTER XVIII. Evidence , 313 CHAPTER XIX. The Finding ^ 374 CHAPTER XX. Sentence and Punishment 390 CHAPTER XXI. Action on the Pboceedings — ^The Reviewing Authobity 447 CHAPTER XXII. Infebiob Coubts-Mabtial and Militaby Boabds 480 CHAPTER XXIII. The Recced . 502 CHAPTER XXIV. Courts of Inquiry 516 CHAPTER XXV. The Aettces of Was Sepaeately Considebed 534 CONTENTS. 11 PAKT II. THE LAW OF WAR. Page. The liAW OP Wab as affectino the bights of oub own people 774 The Law of Wab as affbxjting intebcoubse between enemies in GENEBAL 776 The Law of Wab as specially applicable to enemies in asms 778 The status of Mhjtaby Govebnment and the Laws of Wab theeeto pebtainino . 798 The status of Mabtial Law and the Laws of Wab applicable theeeto- 817 Tbial and punishment of offences undeb the Law of Wab — ^The Mili- TABT Commission 831 MIUTABY AUTHOBITY and JTJBISDICTION TTNDEB THE RECONSTEUCTION ACTS OF 1867 846 PART III. CIVIL FUNCTIONS AND RELATIONS OF THE MILITARY. Employment of the Mtt.ttaby in a Civil of Quasi Civil capacity 863 Liability of the Mimtaby to civil suit oe peosecution 877 Otheb Civil Relations of the Miutaby 895 APPENDIX 901 EXPLANATION OF REFERENCES. The known military writers, or authors of works on military or naval law or history, are generally cited simply by name — as Bruce, Adye, Sullivan, Grose, WllUamson, Tytler, McArthur, Samuel, Delafons, McNaghten, Simmons, Har- court, Griffiths, Kennedy, Napier, Hughes, Hickman, D'Aguilar, Prendergast, Thrlng, TuUoch, Franklyn, Gorham, Jones, O'Dowd, Brackenbury, Pratt, Story, Tovey, Worsley, Macomb, Maltby, O'Brien, DeHart, Copp6e, Bengt, Lee, Harwoqd, Ives, Birkhimer. Hough's principal work on Courts-Martial, published in 1825, is referred to as — ^Hough. His "Practice of Courts-Martial and other MiUtary Courts," (1834,) a»— Hough, (Practice.) His " MiUtary Law Authorities," (1839,) as— Hough, (A.) His " Precedents in Military Law," (1855,) as— Hough, (P.) Clode's " MiUtary Forces of the Crown," (2 vols.,) is referred to as — Clode, 1 (or 2) M. F. His "Administration of Justice under MiUtary or Martial Law," as — Clode, M. L. James' " Collection of the Charges, Opinions and Sentences of General Courts- Martial," is referred to as — James. "A Letter to the Queen on a late Court-Martial," by Samuel Warren, Is re- ferred to as — ^Warren. The "Rules for the guidance of Courts-Martial in the Bombay Army," is referred to as — ^Bombay R. The " Manual of MiUtary Law," by Col. J. K. Pipon and J. F. Collier, Esq., is referred to as — Pipon & Col. The official "Manual of MiUtary Law," the work of some seven different writers, revised by the Judge Advocate General, and published by the British War Office, Oct. 1st, 1882, is referred to as— Manual. The French " Manuel Pratique des Tribunaux Militaires," by P. Alia, Is referred to as — ^Alla. The edition referred to of the Journals of (the Continental) Congress, is that published by Way & Gideon, Washington, 1823. The MiUtary Dictionaries referred to are speciflcally Indicated as those of Voyle, Duckett, Campbell, Dnane, Scott, &c. The numerous military Trials or Inquiries referred to are chiefly the printed proceedings contained in volumes to be found in the law Ubrary at the Capitol, Washington, the libraries of the Executive Departments, and other law or gen- eral Ubraries. Others are to be found, and are cited as pubUshed, in the "American Archives " or " State Papers." Of others, which exist only in the original records on file in the Judge Advocate General's Department, the pro- ceedings have generaUy been published in specified General Orders. The Orders of the War Department or Headquarters of the Army, [including the earlier O., (A & I. G. O.,) which were dated but not numbered,] are In 13 14 EXPLANATION OF BEFKKBNCBS. general referred to simply as G. O. or G. C. M. O., of such a year, &c., without adding " War Dept.," or " Hdqrs. of Army." They are thus distinguished from the G. O. and G. G. M. O. of the military Departments, &c., in citing which the name of the specific Dept., Division, Army, &c., is always given. The other military work of the present author — the annotated "Digest of Opinions of the Judge Advocates General " is referred to simply as — Digest. MILITARY LAW. CHAPTER I. THE SITBJECT DEFINED AlID DIVIDED— CONSTITUTIONAL PEOVISIONS. 1 MnjTAKY Law, In its ordinary and more restricted sense, is the specific law governing the Army ' as a separate community. In a wider sense, it includes also that law, which, operative only in time of war or like emergency, regulates the relations of enemies and authorizes miUtatu government and martial law. The general subject of MiUtary Law will therefore naturally be presented under two Parts, as follows: Part I. The Military Law Proper. Part II. The Law of War. But a treatise on Military Law can scarcely be complete, or satisfactory to the military profession, without some reference to the quasi civil functions which may be devolved upon the army and to the legal relations in which its 2 members may be placed toward the civil community. A further Part has therefore been added to this work, entitled — Part III. Civil functions and relations of the Military. SOURCE OF AND AUTHORITY FOR MILITARY LAW IN GENERAL. Historically, as will hereafter be indicated, our military law Is very con- siderably older than our Constitution. With the Constitution, however, all our public law began either to exist or to operate anew, and this Instrument therefore as in general referred to as the source of the military as well as the other law of the United States. Thus it is said by Chief Justice Chase, in Ex parte Milligan : ' — " The Constitution itself provides for military government as well as for civil government. * * * There is no law for the government of the citizens, the armies, or the navy of the United States, within American jurisdiction, which is not contained in or derived from the Constitution." 1 " The military establlEliinent of this country is divided by the general laws of the United States into the Army and the Navy." — ^U. S. v. Dunn, 120 U. S., 252. Military Law, or the " liaw Military," in Its most comprehensive sense, may thus be deemed to embrace the law governing the NoAyy. This law, however. It Is not proposed to advert to except in so far as Its provisions or principles may Illustrate those of the law pertaining to the Army, or affect the status of the Marine Corps when serving with the Army. For the distinctive features of our Naval Code, reference may be had to Title XV. of the Revised Statutes, the U. S. Navy Regulations, ed. of 1881, the Gen. Ct. Mar. Orders of the Navy Department, which have been Issued regularly since February, 1879, and Commodore Uarwood's treatise on Naval Courts Martial, published in 1867. >4 Wallace, 137. 16 16 MILITAEY LAW AND PEECEDENTS. SPECIFIC CONSTITUTIONAI. PROVISIONS. The provisions of the Con- stitution which may be regarded as the source or sanction of, or authority for, our existing military law and Jurisdiction — the discipline of armies as well as the war power — are the following, viz. : Xst. Those by which Conqbess, as the Legislativ>e branch of the government Is empowered — "To define and punish * ♦ * offences against the law of nations ; " " To declare war, grant letters of marttue and reprisal, and make rules concerning captures on land and water ; " " To raise and support armies ; " " To provide and maintain a navy ; " " To make rules for the government and regulation of the land and naval forces';" "To provide for calling forth the mlUtia to execute the laws of the Union, suppress insurrections and repel in- vasions ; " " To provide for organizing, arming and disciplining the militia, and for govemlog such part of them as may be employed in the service of the United States ;"*nd farther, generally^ "To make aU laws which shall be necessary and proper for carrying into esecntlDn the foregoing powers," (t. «. those here recited together with various others set forth in the same 3 section,) " and all other powers vested by this Constitution In the gov- ernment of the United States or In any department or oflScer thereof." * 2d. Those by which the President, as the Executive power, is constituted " Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual service of the United States ; " by which he is empowered to appoint, (generally In conjunction with the Senate,) and is required to commission, the officers of the Army, &c.; and by which it is made his duty to " take care that the laws be faithfully executed." * 9d. The provision of the Vth Amendment," that — "No person shall be held to answer for a capital or otherwise infamous crime ' unless on a presentmait or indictment of a Grand jury, except in actual service In time of war or public danger." ' These provisions' will be variously applied and Illustrated in the several Parts of the work. 'Const., Art I., Sec. 8. < Const, Art II., Sees. 1, 2 and 3. ' " This provision in effect says that offences In the land or naval force shall be dealt with according to military law." — Runkle v. C. S., 10 Ct. CL, 397, 410. And see authorities dted in Chapter V, pp. 61, 62, pott. * That the term " infamous crime," as here used. Is now mainly applicable to crime ponishable by imprisonment in " a penitentiary or similar institution," see Ma parte Wilson, 114 TJ. S., 417 ; Macldn v. U. S., 117 TJ. S., 348 ; In re Claasen, 140 U. S., 200, 204. ' This Amendment has been very recently construed by the D. S. Supreme Court, in the case of Johnson «. Sayre, April 1895, (158 U. S., 109,) in which it was held that the description — >" when in actual service in time of war or public danger " — applied not to " the land or naval forces," but to the " militia " only. ■ With those cited may also be noticed Art. III. of the Amendments prescribing that : " No soldier shall in time of peace be quartered in any house withont the consent of the owner, nor in time of war, but in a manner to t>e prescribed by law." The billeting of soldiers, however, is practically unknown in our Army, CHAPTER 11. Part I— MILITARY LAW PROPER. THE WRITTEN LAW— AETICLES OP WAR AMD OTHER DISCI- PIINARY STATUTES. 4 MIUTABY LAW PROPER— OE WHAT IT CONSISTS. Military law proper is that branch of the public law which is enacted or ordained for the government exclusively of the military state, and is operative equally In peace and In war. We will term it, in general, simply military law, in contra- dlstlnctibn to the law administered by the civil tribunals. Like that law, it consists of a Written and an Unwritten law. THE WBITTEIT ItllLITARY LAW. This, which comprises much the greater part of the Law to be considered, is made up of : — I. The statutory Code of Articles of War; II. Other statutory enactments relating to the discipline of the Army ; III. The Army Regulations ; IV. General and Special Orders. I. The Aeticles of War. The Articles, or Rules and Articles, of War, are statutory provisions for the enforcement of discipline and administration of criminal justice in the army, enacted by Congress in the exercise of the constitutional power " to make rules for the government and regulation of the land forces." In their origin, however, a majority of these Articles considerably pre-date the Constitution, being derived from those adopted by the Continental Congress between 1775 and 1786, which were themselves taken from pre-existing British articles having their inception in remote antiquity. EARLY CODES. While no written military codes remain from the times of the Greeks or Romans, some of the principal military offences familiar 5 to our present law, as desertion, mutiny, cowardice, the doing of violence to a superior, and the sale or appropriation of arms, were recognized in their armies ; and, of the punishments inflicted by them, while a portion, such as decimation, denial of sepulture (in connection with the death penalty), maim- ing, exposure to the elements, taking of meals standing, &c., have long ceased to be known, others, such as dishonorable discharge, expulsion from the camp, labor on the fortifications, carrying of burdens, and servile or police duty, have come down to our day without substantial modification. Among the early Germans, in the absence of a written law, justice was in general administered summarily by the chief commanders, through the instrumentality of the priests ; the principal punishments, besides death, being whipping, forfeiture of horses or cattle, and a civil and military disqualification or dishonoring imposed for such offences as volunteering for a campaign but failing to take the field, losing the shield in battle, and returning alive from a battle where the chief had fallen. Of the written military laws of Europe the first authentic instance appears to have been those embraced in the Salic code, originally made by the chiefs 440S93 O - 42 - 2 17 18 MrLITABY LAW AND PEECEDENTS. Of the Salians at the beginning of the fifth century, and revised and matured by the successive Frankish kings: other written laws — as those of the Western Goths, the Lombards, the Burgundians and the Bavarians, extending in date to the ninth century, belong to this period. These codes were all civil as well as military, the civil and military jurisdictions being scarcely distinguished and the civil judges being also military commanders in war.' The date of the first French ordonnanoe of military law is given as 1378 ; the first German Kriegsartikel are attributed to 1487. The laws however of the Merovingian and Carlovingian Franks appear to have reached their full develop- ment In 1532 in the celebrated penal code of the Emperor Charles V., which has been viewed as the model of the existing military codes of continental Europe. The Articles of War of the Free Netherlands of 1590, republished in 1705 ; 6 the elaborate Articles of Gustavus Adolphus, framed in 1621 ; the Regula- tions of Louis XIV., of 1651 and 1665 ; the Articles and Regulations of Czar Peter the Great; of 1715 ; and the Theresian penal code of the Empress Maria Theresa, of 1768, with the later " Norma " — are among the most noted of the systems of European military law which have succeeded the " Carolina." " Some of the details of these laws will, be hereafter referred to. THE BRITISH MILITARY COBE. For nearly two centuries, and tlU a very recent date, this parent code was made up of — (1) the statute known as the Army Mutiny Act, and (2) the Articles of War. The Early Articles. The Articles are much older in history than the statute. The earliest articles appear to have been specific military orders or directions issued to the army, for its government, when about to proceed upon an expedition, or from time to time during war.' They were commonly ordained directly by the King, by virtue of his royal prerogative, and with the aid and counsel of his peers, especially of the High Constable and Earl Marshall,* officials hereafter to be referred to as composing the court of chivalry, viewed by some writers as the proper original of the court-martial in England." Early ordinances of this character are indicated by the authorities as promulgated by Richard I.,° Richard II.,' Henry V.,"^ Henry VII., and Henry VIII. ;' these 7 were succeeded by more extended precepts which continued to be put forth by the Crown, or by its authority, till the period of the Rebellion ; those of 1629 and 1639 being the most elaborate." In some Instances the gen- erals commanding the armies were empowered by the King, by special commls- '^ Among the principal authorities consulted upon tlie subject of these early military laws are Potters' Archaeologia Grseca ; Smith's Dictionary of Greek and Roman Antiquities ; Adam's Roman Antiquities ; Vegetius, De Re Militari ; LudovicI, Kriegsprocess ; Kopp- mann, Militiirstrafgesetzbucb ; Von Molitor, Kriegsgerichte und Milit&rstrafen ; Le Faure, Lois Mllitaires de la France ; Foucher, Commentaire sur le Code (ie la Justice MiUtaire. " The more usual designation of the code of Charles V. ; the full description being " Con- stitutio Carolina Criminalls." "2 Grose, History of the English Army, 58; Plpon & Col., 14; Clode, M. L., 29, 72. As to the early history of niwal military law prior to the Act of 13 Cbas. II., "which brought the naval usages and ordinances into the form of a statute," see Forsyth, Cases & Opins. of Const. Law, 193-4. « 2 Grose, 58 ; Adye, 5 ; Tytler, 38 ; Samuel, 61 ; GrifHths, 18. = See Chapter V. " 2 Grose, 63 ; Samuel, 60, 89. And see Appendix. 'These "Statutes, Ordinances and Customs" of Richard II. (A. D. 1385), as given by Grose, vol. 2, pp. 64^69, will be found in the Appendix. s These contain " regulations respecting duties, musters, watches and guards," etc. 2 Grose, 70. And see Samuel, 90 ; Pratt, 3. They will be found printed in the preface to Grose's Antiquities. of England and Wales. " 2 Grose, 70 ; Samuel, 59-63 ; Pipon & Col., 14. i» Clode, M. L., 9-11. The articles of 1639, as contained in Clode, 1 M. F., 429-440, are ninety in number and arranged under six separate titles. MILITARY LAW AND PBEOEDENTS. 19 slon, to make rules and articles of war." Among the last of these was the ordinance issued in 1640 by the Earl of Northumberland as Lord General," which was followed by a similar one (of ninety-six articles under twelve beads,) promulgated in 1642 by the Earl of Essex as commander of the opposing army of parliament and with the sanction of that body." Just before the dates last mentioned, vi^. in 1639, there was published in London " the Code of Articles, already referred to, of Gustavus Adolphus, pro- mulgated by him toliis army in July, 1621. In reading these (one hundred and sixty-seven in number), it is readily concluded that not a few of the articles of the English codes of a later date were shaped after this model or suggested by its provisions." In some Instances, in our own present articles, there are retained quaint forms of expression identical with t«rms to be found in this early code as translated. 8 Subsequently to the Rebellion, articles were put forth, from time to time, by the Crown or under its authority, during the reigns of Charles II. and James II., viz.: the articles of 1662-3, 1666, 1672 ("Prince Rupert's code"), 1685 and 1688;" the last being those in force at the period of the English Revolution and at the date of the first Mutiny Act — 1 William and Mary, c. 5, of April 3, 1689. With this Act British Military law began to as- sume a statutory form. The most important of the early series of Articles are set forth in the Ap- pendix. The first Mutiny Act, of 1689. The event which induced the adop- tion of this enactment — the mutiny and substantial desertion of a detachment of troops, mainly Scotch, which adhered to the cause of the Stuarts and, refus- ing to obey the order of William III. to proceed to Holland, marched north- ward — is familiar to the student of militaTy law." The offences thus com- mitted were, by the custom of war, punishable with death, but, by the laws of the realm, not always regarded in this particular by the sovereign, this punish- ment could not be imposed within the kingdom by the executive power in time of peace." Parliament therefore availed itself of the occasion of asserting its "2 Grose, 58-59 ; Samuel, 64 ; Clode, M. Ij., 6, 10 ; also Id., 2 M. P., 425, where Is given In full tlie commission of Cbas. I to tlie Barl of Arundel as commander-in-chief, under which were Issued the articles of 1639. »=2 Grose, 70; Samuel, 65; Clode, M. L., 10. " 2 Grose, 71 ; Samuel, 65 ; Clode, M. li., 84. And see Clode, 1 H. F., 442, wbere, as also in Pipon & Col., 367, extracts are given from this Code. Clode, (M. L., 10,) referring to these similar sets of articles, adds — " so that both armies, though opposed to each other, were governed by the same military code. On p. 40, (referring to the articles adopted from the British by our Continental Congress,) he observes — " In 1775 the same thing happened in America." As to the administration of military justice during the period of the Rebellion and the Protectorate, see, further, Pipon & Col., 15-18. "In Ward's Animadversions of Warre, Boole Second, pp. 41-54. See the reference to this code in Stevens' Life of Gustavus Adolphus, 129-130. "A large number of English had served, as officers and soldiers, in the armies of Gustavus Adolphus. Scott's Brit. Army, vol. 2, pp. 41-2, 566. As to the influence of his Articles, and of the military laiv of the Low Countries, in shaping the English code, see Simmons, I 1, and notes. " See Appendix. " See 1 McArthur, 22 ; Adye, 30 ; Tytler, 102 ; Samuel, 136 ; Clode, M. L., 19 ; Id., 1 M. F., 142, 497 ; Pratt, 5. 1" "Attempts were made from time to time, especially during the despotic reigns of the Tudors to enforce military law under the Prerogative of the Crown in time of peace ; but no countenance was afforded to such attempts by the law of England, and com- missions for the execution of military law in time of peace issued by Chas. I. in 1625 and the foUowine years gave rise to the declaration in 1627, contained in the Petition of Bight (3 Chas. I., c. 1,) that such an exercise of the Prerogative was contrary to law." ' Manual of Military Law, 7-8. 20 MILITABY LAW AND PBECEDBNTS. exclusive authority to license sucli punishment by enacting on the date above mentioned a statute providing generally that any officer or soldier who should thereafter excite, cause, or join in a mutiny or sedition in the army, or should desert the service, should be punished with death or such other penalty as a court-martial might adjudge." The existing articles of war were not super- seded, nor was the prerogative of the Sovereign to make articles, or to 9 authorize the death penalty for offences committed abroad, impaired by the Act: its effect was, as to this penalty, to preclude its infliction at home for any military offences except those which it designated." Later, in 1718, the making of Articles by the Crovm, to be operative within the Kingdom as well as beyond seas, was expressly authorized by Parliament in the Mutiny Act ; and in 1803 it was enacted that both the Act and the Articles should henceforth apply to the army equally at home and abroad. A general statutory sanction was thus given to the Articles, which no longer depended entirely for their authority upon royal prerogative." The Mutiny Act, initiated as above indicated, was limited in its operation to a term of about seven months, but, soon after its expiration, was renewed for a year. With frequent additions and modifications it has, since, except for a few brief intervals," been, by annual enactment, continued in force until a very recent period. Meanwhile, though originally consisting of but ten sections, it had become so enlarged as to embrace, in 1878, upwards of one hundred. Mean- while also the Articles of war, always published with the Act, and from time to time revised, had become, at the date mentioned, nearly two hundred in number. The Articles repeated, though in a different form, many of the provisions of the Act, while in others the two were quite distinct. The necessity of constantly comparing the two, and passing from the one to the other in order to ascertain and harmonize the law, was at least inconvenient, and that the body of law thus dissevered was not sooner consolidated and simplified must remain a matter of surprise to the American student. The Heform of 1879-1881. Army Aci; and Bules of Procedure. At length, in 1879, after nearly two centuries of existence, the Mutiny Act, (and with it the code of Articles,) was allowed to expire without renewal, and there was substituted for it, on July 24th of that year, a quite new statute — also however intended to be annually renewed — entitled the " Army Dis- 10 cipline and Regulation Act."" In a section of this statute the Sovereign was expressly authorized to make not only articles of war but also " Rules of Procedure" for courts-martial, reviewing ofiicers, &c. Rules, (but no Arti- cles,) were made and published accordingly, but, in 1881, both Act, now desig- nated as the "Abmt Act," (or "Army Annual Act,") and Rules, underwent a full revision. The revised Act, passed August 27, 1881, has been since annually continued in force, (as of April 30th in Great Britain and later dates abroad,) i»The Act is given in full In the Appendix. »Clode, M. L., 22; Pratt, 4. And see Barwis v. Keppel, 2 WUson, 314. => Pratt, 4 ; Clode, M. L., 22, 25 ; Id., 1 M. F., 146, 503. And see the full history of the Mutiny Act and ArUcles, between 16&9 and 1879, as given In the Manual, pp. 14-18. 2! The only considerable interval, according to the authorities, was one of about two years and ten months, »•«., from April 10, 1698, to Feb. 20, 1701. Adye, 21 ; Clode, 1 M. F., 389-391. ^ 42 & 43 Victoria, c. 33. This Act superseded also the Marine Mutiny Act. A similar change— it may be noted — had previously taken place In the na/val code ; the naval Articles of War and general laws for the government of the Navy having been " recon- structed and placed on a new footing by the Legislature in the Naval Discipline Act of 1866." Thring, preface and p. 393. MILITABY LAW AND PRECEDENTS. 21 and, with the Revised Bules, (first promulgated, August 29, 1881,) and a few army regulations," constitutes the existing code for the royal military forces. The Army Act is not only a substitute for the old Mutiny Act, but it sub- stantially incorporates also the previous Articles of war,"" and though the King, is still empowered to make Articles, yet the fact of such incorporation, in con- nection with the creation of the Rules of Procedure, will, as observed by a recent writer,"" " probably render the exercise of this power unnecessary or very rare." There are thus now no British Articles of war, nor are there likely to be any for an indefinite period. The Act and Rules, instead of abridging and simplifying the law, constitute a code considerably more extended than that which they superseded." 11 Whether the elaboration resorted to will prove to have been judicious is as yet a question. There are certainly, however, embraced in the new law many excellent provisions, some of which vrill be hereafter referred to. References will also be made to the admirable "Manual of Military Law," first published by the War Office, October 1, 1882, by which such provisions are illustrated. • THE MILITARY CODE OF THE UNITED STATES. The two main points of difference between the composition of the American military code and that of Great Britain are — 1, that we have in our law no " Mutiny," or " Army Annual " Act, or other corresponding legislation ; 2, that our Articles of war, though in large part derived from the British, are wholly statutory, having been, from the beginning, enacted by Congress as the legislative power. Of these Articles we now proceed to outline the history. Early History — Code of 1775. The second Continental Congress having, early in its session, to wit, on June 14, 1775, " resolved " " that a mili- tary force should " be immediately raised," to " march and join the army near Boston," proceeded, on the same day, to appoint a committee, consisting of George Washington, Philip Schuyler, Silas Deane, Thomas Gushing, and Joseph Hewes, "to prepare rules and regulations for the government of the Army."" On June 28th following, there was reported by the committee, and on June 30th adopted by Congress, a set of Articles, prefaced by a preamble reciting the causes which had induced the Colonies to assume a defen^ve attitude and raise an armed force — " for the due regulating and well ordering of which," it is declared, " the following rules and orders are established." ^ " See " The Queen's Begalations and Orders for the Army, 1881," Sec. VI. ^The Act Is "a consolidation of the Army Mutiny Act and Marine Mutiny Act, the Articles of War, and the Army Bnllstment.Act of 1870." Jones, IS.- And see Graham, p. 5. »■ Jones, p. 18. " " The efCecf of the recent legislation has been rather to complicate than to simplify the military code. Some anomalies have been swept away, but with them has also disappeared much of the simplicity which characterized the administration of military law under the Mutiny Act and Articles of War. Not only has the actual punitive code been largely increased in size, but the manner of carrying it ont, on the procedure of courts-martial, has become so Involved that the regulations concerning It require close attention." Col. Brackenbury, in Preface to Pratt's Military Law. As the Act and Bules, with their many Forms, take up so much space, they are not reproduced in this Edition. They will be found published, with copious explanatory notes, in the authorized Manual of Militaet Law. ^ 1 Journals of Congress, 82. The enactments of Congress prior to the adoption of the Constitution were in the form of Kesolutions. "" 1 Jour. Cong., 83. Of this committee, Washington was, on June 15th, chosen general of the army, and Schuyler, on June 19tb, a major-general. 1 Jour. Cong., 83, 86. *>1 Jour. Cong., 90. These Articles, with the subsequent codes, are given in the Appendix. 22 MILlTAEY LAW AND PEECEDENTS. 12 Of this code, comprising sixty-nine articles, the original was the existing British code in force in the " ministerial army." " Many, how- ever, of the articles were, with slight modifications, copied directly from the intermediate Massachusetts Aeticles of the preceding April, which may be said to have constituted the first American written code of military laws." The Articles of War thus Inaugurated were, by a Resolution of the same Congress, of November 7, ITTS," amended and added to by sixteen further provisions intended to complete the original draft in certain particulars in which it was imperfect." In the meantime a provision, which was in fact a separate Article, and Is still traceable In our code, relating to precedence In command between officers of the continental and provisional establishments and of the militia, had been adopted, on November 4th. Code of 1776. The Articles of 1775 did not remain long Ih force. On June 14th of the following year It was resolved by Congress that " the committee on spies be directed to revise the rules and articles of war;" this being a com- mittee of five, consisting of John Adams, Thomas Jefferson, John Rutledge, James Wilson ahd R. R. Livingston, which had been previously appointed " to consider what is proper to be done with persons giving intelligence to the enemy or supplying them with provisions." " New articles prepared by 13 this committee were reported on August 7th following, and the same were agreed to by Congress on September "20, 1776." Meanwhile, however, there had been adopted on June 17, 1776, a provision " that no officer suttle or sell to the soldiers," under pain of fine and dismissal by sentence of court-martial." And, further, on August 21st, an article pro- viding for the punishment of spies, whose crime was made capital.™ The code of 1776, which was an enlargement, with modifications, of that of 1775, was also a complete re-casting of the same ; the articles being assembled, (according to the form of arrangement of the British articles,) under sepa- rate Sections, each comprising the provisions relating to some specific or gen- eral subject." Amendments of 1786, &c. The Articles of 1776 continued In force till after the date of the adoption of the Constitution ; meanwhile, however, under- going certain very considerable amendments. The most important of these was the last, that of May 31, 1786, by which Section XIV. of the existing code, with "• These British Articles, as copied from the original puhllcatlon In possession of the Massachusetts Historical Society, are set forth In the Appendix. The fact that the two opposing armies were, at this period, governed by similar codes, has already been noticed. "These articles', (inserted in the Appendix,) were adopted on April 5th, 1775, by the Provisional Congress of Massachusetts Bay, for the observance of its own troops. (Am. Archives, Fourth Series, vol. I., p. 1350.) They were followed by similar articles adopted, in May and June of the same year, successively, by the Provlflclal Assemblies of (Connecticut and Bhode Island, and the Congress of New Hampshire, (Id., vol. II., pp. 665, 1153, 1180;) In April, 1776, by the Pennsylvania Assembly, (Id., vol. V., p. 705,) and later, apparently, (see 1 Jour. Cong,, 423,) by the Convention of South Carolina — for the government of their respective levies. =»1 Jour. Cong., 97, 167. " See Appendix. »1 Jour. Cong., 374. " 1 Jour. Cong., 365. See Works of John Adams, vol. III., p. 83, as to his part in procuring the enactment of these Articles. " 1 Jour. Cong., 435, 482. The Articles are set forth In the Appendix. "1 Jour. Cong., 377. " 1 Jour. Cong., 450. The resolution enacting this article was ordered to be " printed at the end of the rules and articles of war " — ^where Indeed a corresponding provision has ever since remained. "This arrangement was abandoned in the Code of 1806, and has not since been re- sumed. The material differences between the articles of 1775 and 1776 will be indi- cated when we come to treat of the present Articles separately. MILITAKY LAW AND PRECEDENTS. 23 " such other articles as related to the holding of courts-martial and the conflrjna- tton of the sentences thereof," was repealed and a new Section, entitled " Ad- ministration OF Justice," consisting of twenty-seven articles, was substi- tuted." The occasion of this Amendment, as expressed In the preamble of the Resolution of Congress, was the fact that the pre-existing Articles failed to make adequate provision for the trial of ofCenders *' serving with small detach- ments," those articles requiring that a general court-martial should consist of thirteen members, and a regimental or garrison court of five members : in the new section the number of the inferior court was fixed at three, and the 14 minimum of the general court at five— limitations which have subsisted to the present time." Between the dates of the code of 1776 and the important Amendments of 1786 there were enacted various other articles of war or provisions In the nature of such articles, the greater part of which, hdwever, were but temporary in their operation. Those which are material to be considered in connection with the study of the specific articles of the present code will be hereafter noted. Later history — Code of 1806. After the adoption of the Constitution, the Articles in force at that date were, by the First Congress, in an enactment of September 29, 1789, (and see, to a similar effect, the Act of May 26, 1790, s. 13,) expressly recognized and made to apply to the existing army. They were subsequently, (with some additions,) continued In operation, by the suc- cessive statutes by which provision was made for increasing the army," until the Inauguration of a new code by the Act of April 10, 1806. The Articles of 1806, which superseded all other enactments on the same subjects," were adopted by Congress mainly for the reason that the changed form of government rendered desirable a complete revision of the code." These Articles — one hundred and one in number, with an additional provision relating to the punishment of spies — remained in force, (except as amended,) for nearly seventy years, or till the enactment of the revised code of 1874. During this long Interval the military statute law underwent but few changes prior to the commencement of the late war. After that date the alterations and additions were much more numerous. But a comparatively small propor- tion, however, of these modifications were permanent. 15 Code and 'Revision of 1874. The Code of 1874,-:— that at present In In force, — consisting of one hundred and twenty-eight articles, with a sup- plementary provision relating to the trial and punishment of spies, Is embraced in Sections 1342 and 1343 of i the Revised Statutes of the United States," being Chapter Five of Title XIV, " The Aemt." All the codes which have been enumerated are set forth in the Appendix. Modifications of the last Code. Since the taking effect of the Code of 1874, but few modifications of the Articles have been enacted.. Those which have been amended, (with the nature of the amendment,) are as follows: — Art. 17, (in doing away with the penalty of stoppage, and leaving the punish- " 4 Journals, 649. See Appendix. " The Articles of '86, however, amended the existing code in various particulars other than those indicated in the preamble. «See Acts of April 30, 1790, s. 3; March 3, 1791, s. 3, 10; March 5, 1792, s. 11; May 9, 1794, s. 4 ; March 3, 1795, s. 14 ; May 30, 1796, s. 20 ; April 27, 1798, s. 2 ; May 28, 1798, s. 2 ; July 16, 1798, B. 8 ; March 2, 1799, c. 27, s. 8 ; March 2, 1799, c. 31, s. 3 ; March 16, 1802, s. 10 ; Feb. 28, 1803, s. 3. In the Acts of 179Q, 1795 and 1796, It is added — " so far as the same " (the existing articles) " are applicable to the Con- stitution of the United States." "Mills V. Martin, 19 Johns., 23. <• See remarks of Mr. Varnum of the House of Eepresentatives. Annals of Cong., 9th Cong., 1st Ses., p. 264 ; also O'Brien, 335. «As to what are the Revised Statutes, see Chapter XVIII. — Legislative Acts and acts of State. 24 MHITAEY LAW AND PEECEDBNTS. ment to the discretion of the court;) Arts. 38 and 98, (in prohibiting the pun- ialiments of flogging, branding, marking and tattooing;) Art 72, (In extend- ing the authority to convene general courts-martial to colonels commanding departments;) Art. 84, (in slightly modifying the terms of the oath to be taken by members of courts martial;) Art. 103, (in prescribing a separate rule of limitation of prosecutions for desertion in time of peace;) Arts. 104 and 110, (in causing them to specify more intelligibly the act of approval necessary to the execution of sentences;) and all the Articles which leave the punishment of the offence to the discretion of the court, by providing, (Act of September 27, 1890,) that such punishment "shall not, in time of peace, be in excess of a limit which the President may prescribe." Such other changes as, in the opin- ion of the author, may well be made in the present Articles are indicated at the end of Chapter XXV. Our military code,- however, stands alone among our public statutes in its retaining many provisions and forms of expression dating back from two hundred to five hundred years, and while it is desirable that some of the Articles should be made more precise or extended in scope, and the code itself be simplified by dropping a few Articles and consolidating others, any radical remodeling which would divest this time-honored body of law of its historical associations and interest would be greatly to be deprecated. Our existing code of Articles, consisting of the revision of 1874 and sub- 16 sequent amendments, is contained in the Appendix. In subsequent parts of this work, these Articles will be separately reviewed, and their rela- tions to the provisions of other existing statutes, as well as to those of the earlier sets of articles, be remarked upon. II. Otheb Statutoby Enactments Relating to the Discipline of the Abmy. The second of the components of the Written Militaky Law consists of those of the public statutes which concern the government or discipline of the military service but are not included in the existing code of Articles, although some of them indeed might well be classed as articles of war. The statutes here intended are those relating to such subjects as — the author- ity of the Superintendent of the Military Academy to convene general courts- martial and execute their sentences ; the jurisdiction of courts-martial over militia, marines, cadets, retired oflScers and convicts at the Military Prison ; the trial and punishment of officers or soldiers aiding or allowing the escape of convicts; the authority of judge advocates to issue process of attachment of witnesses, to appoint reporters, to administer oaths, and to be present in court ; the competency of accused persons as witnesses ; the revision of the proceedings and disposition of the records of military courts ; the restoration of dismissed officers; the dropping of officers for desertion; the trial by court-martial of officers, dismissed by order; the composition of courts-martial for the trial of militia ; the forfeiture of civil rights incurred by deserters ; the military rela- tions of post traders ; the fixing of maximum punishments ; the institution of summary courts; the jurisdiction of courts-martial in cases of fraudulent en- listment, etc." These various statutes (which will be found in the Appendix) will hereafter be recurred to, and construed or otherwise considered under the appropriate heads. A further class of enactments, authorizing or restricting the employment of the army for civil or quasi civil purposes, will be reserved for consideration in Part III of this treatise, " See Rev. Sts., Sees. 1202, 1203, 1228, 1229, 1230, 1258, 1320, 1326, 1359, 1360, 1361, 1621, 1644, 1658, 1996-1998, 5306, 5313 ; and Acts of June 23, 1874, c. 458, s. 2 ; July 24, 1876, c. 226, s. 3 ; March 3, 1877, c. 102, o. 1 ; March 16, 1878, c. 37 ; April H, 1890, c. 78 ; Sept 27. 1890, c. 998 ; Oct. 1, 1890, c. 1259 ; July 27, 1892, c. 272. CHAPTEE III. ASHY KEOULATIONS AND OEDERS. ARMY REGULATIONS. 17 In passing from Articles of war to Army Regulations, we pass from the province of one department of the government to that of another — from legislative statutes to executive acts. The subject will be treated under the following heads : I. Regulations in general ; II. Regulations for the Army ; III. Principles governing regulations; IV. Special sets of Regulations. I. Regulations in Geneeal. Their Classification — Express Authority for Regulations. While all law is regulation in a greater or less degree, regulations proper, whether army regulations or other, are administrative rules or directions as contrasted with enactments. The word "regulation" or "regulations," (as also the allied term "rules,") is employed sometimes in the Constitution' as descriptive of statute law, and this use has proved confusing to the student. A similar designation occurs in certain, especially of the earlier public Acts, though it Is not frequent. As a general practice. Congress, in framing a public law in which provision Is made for an elaborated system, a measure of policy, or other extended subject or project, of which the execution involves minor details of performance, disposes of such details in one of three forms." It either goes on itself to prescribe rules, general or specific, for such performance; or it authorizes some public officer to make proper rules for the purpose ; or it is entirely silent on the subject, prescribing no regulations itself and devolv- ing no authority, in terms, upon any official. The rules of the first 18 class are statutes: those of the second class regulations as distinguished from statutes, and bearing a relation to statutes similar to that which the latter bear to constitutional provisions. The third class, in which are Included army regulations, will be considered presently. The first form — where specific regulations are set forth — ^is comparatively rare,' for the reason that the Legislature can seldom foresee all the details that may require to be regulated in the course of the execution of a statute.' Of the second form the instances are frequent, and this is the form ordinarily adopted in enactments relating to complex subjects. Thus, by Sec. 161 of the Revised Statutes, the heads of the executive departments are authorized by Congress "to pre- scribe regulations not inconsistent with law" for the internal government of their departments, the conduct of the business, and the custody and use of the records and public property in their charge. So, in a multitude of other important statutes, Congress, in imposing or conferring some special charge » In Art. I., Sec. 4 i 1 ; Id., Sec. 8 § 11, 14 ; Art. 4, Sec. 3 § 2. ' See McCall's case, as cited in note, post. 'Conspicuous instances of specific regulations prescribed in statutes are found in tbe early Acts of March 23, 1792, c. 11, s. 2 ; March 3, 1803, c. 37, s. 1 ; April 10, 1806, c. 25, s. 2 and J. S. 14 of July 23, 1846; also in Act of April 29, 1864, c. 69, s. 1, (Sec. 4233, Eev. Sts. ;) in Sec. 337, Eev. Sts., and in the recent Acts of March 3, 1879, c. 195 ; Aug. 2, 1882, c. 374 ; March 3, 1885, c. 354, and Aug. 19, 1890, c. 802. 'fioody V. V. S., 1 Wood'& Minot, 164; U. S. v. Webster, Daveis, 38. 25 26 MILITAEY LAW AND PEECEDBNTS. or capacity, or in legislating generally upon some matter the particulars of whlcli fall within the executive province, has specifically authorized or directed the proper executive oflScer — ^the President, or head of department, or, In some cases, inferior official — to make regulations for the proper dlschalrging of the function, or the carrying out of the details of the subject." These regu- 19 lations, indeed, numerous and multifarious as they are, represent the exercise of a very considerable power on the part of our public func- tionaries, and serve a purpose in the efficient administration of our Govern- ment not readily or commonly appreciated." IMPLIED AUTHORITY— THE THIBD ClASS OE BEGtrLATIONS. But Congress is Incapable of delegating any portion of the legislative power, and the giving, in a statute, of authority to an executive official, to make regulations for executing the same, is, in general, quite unnecessary, amounting to no more than an indication, on the part of Congress, of a purpose to leave the details of execu- tion where in fact they properly belong, with a suggestion, sometimes, as to the particulars especially to be regulated. Thus, in the cases of a great majority of the statutes of the second class, an authority in the Executive to make regu- lations would legally have been implied without any express grant to that effect. So, there are many statutes of the third class — ^those in which Congress Is silent as to the matter of the execution of the details — in which such an authority results by a legal implication from the terms or subject of the enactment, considered in connection with the inherent function of the Execu- tive.' The Constitution devolves it upon the executive department to " take care that the laws be faithfully executed." In a case, therefore, of a law of which the execution requires to be specifically methodized, it is the duty 20 of that department, and it is authorized, in the absence of any express authority for the purpose, to prescribe the rules or directions neces- sary and proper to effectuate the object of the statute;' care of course being 'It would require too much space to enumerate all the statutory provisions of this class down to the present time, in which " regulations," as such, are authorized to be prescribed. For the principal of those enacted prior to 1886, reference may be had to the first edition of this work, page 18-19, note 3. Repeated instances also occur in the statutes where, though the word " regulations " is not employed, the same mean- ing Is conveyed by some equivalent term or expression ; as by the term " directions," " Instructions," " forms," " requirements," " restrictions," " conditions," " limitations," "by-laws." Not unfrequently a thing is required by the statute to be done in such manner, etc., as a head of a Department, etc., " may prescribe." The " Regulations for the CSovernment of the Revenue Cutter Service of the United States," Issued by the Sec- retary of the Treasury, April 4, 1894, and resting on no authority more express than Is found In the terms of Sees. 2758 and 2762 placing this corps (consisting of the offi- cers and crews of thirty-six vessels) under the general direction of the Secretary, Is a striking Illustration of the discretion exercised by heads of Departments In making regulations as to matters of detail. The point may be noted here that regulations duly framed under a statute may some- times well be referred to as a practical Interpretation of the statute Itself. See V. S. V. Cottlngham, 1 Bob., (Va.,) 635. '"All the law of the United States Is not specifically expressed in statutory enact- ments. Many powers are necessarily Inherent in the various departments of the gov- ernment without which the government could not perform functions necessary to Its existence. The exercise of such powers is nevertheless In pursuance of the laws of the United States." In re Neagle, 39 Fed., 834. 1 "When statutes confer powers. Impose duties, and provide for the accomplishment of various objects, they are necessarily couched in general terms, hut Uiey carry with them, by Implication, all the powers, duties and exemptions necessary to accomplish the objects thereby sought to be attained." In re Neagle, ante. °A recent instance of Army regulations Instituted for the purpose of executing the Intent of a statute In which no authority for regulations is conveyed In terms, is that of the regulations published in G. O. 55 of 1885, for effectuating the provisions of the Act of Feb. 14, 1885, entitling enlisted men to be placed upon the retired list. MILITABY LAW AND PKECEDENTS. 27 taken that the regulations shall not partake of the nature of legislation. This Inherent authority of the Executive — the President, or head of a Department acting (or and representing him — ^has been repeatedly noticed and affirmed by the authorities.' II. Regulations fob the Army. THEIR ORIGINAL SOURCE AND ATTTHORITY. The authority for army regulations proper is to be sought — primarily — ^in the distinctive functions of the President as Commander-in-chief and as Executive. His function as Com- mander-in-chief authorizes Mm to issue, personally or through his military subordinates," such orders and directions as are necessary and proper to ensure order and discipline in the army. His function as Executive empowers 21 him, personally or through, the Secretary of War," to prescribe rules, where reciuisite, for the due execution of the statutes relating to the military establishment. The former description of regulations scarcely differ from some of the Orders which remain to be separately noticed except In that they are of a more permanent character. Often indeed originally initiated as orders merely, they have become regitlations by being incorporated as such in the authorized publications." Those of the latter species are more strictly " regulations," being especially within the description of rules " in aid or com- plement of statutes." " From these two sources is derived an original and sufficient authority for Army Regulations in general, no authority or sanction on the part of Congress being required. Congress, however, has repeatedly conferred such authority in express terms where general regulations for the Army were to be issued, and has sometimes also reserved to itself a right of approval or supervision of the same when made. For special regulations also it has frequently given an express authority. REGULATIONS AS AUTHORIZED OR AFFECTED BY LEGISLA- TION — THE SUCCESSIVE PUBLICATIONS OE REGULATIONS. The action of Congress on the subject of general army regulations, subse- » " Of course Congress cannot constitutionally delegate to the President legislative powers ; but it may In conferring powers constitutionally exercisable by him, pre- scribe, or omit prescribing, special rules of their administration, or may specially authorize him to make the rules. When Congress neither prescribes them, nor expressly authorizes him to make them, he has the authority, inherent in the powers conferred, of making regulations necessarily incidental to their exercise, and of choosing between legitimate alternative modes of their exercise." McCall's Case, 2 Philad., 269. And see Wayman v. Southard, 10 Whcaton, 42, 43 ; TJ. S. v. Macdaniel, 7 Peters, 2 ; U. S. v. Bailey, 9 Id., 238; Lockington v. Smith, 1 Peters, C. C, 471; Boody v. U. S., 1 W. & M., 164 ; In re Spangler, 11 Mich., 298 ; In re Griner, 16 Wis., 423 ; Antrim's Case, 5 Philad., 287 ; Allen v. Colby, 47 N. H., 544 ; Cooley, Prlns. Const. Law, 44 ; 1 Oplns. At. Gen., 478 ; 2 Id., 225, 243-5, 421 ; 4 Id., 225, 227 ; 6 Id., 365. " That military commanders, in giving legal orders, represent the Commander-in- chief, the President, see Clark v. Dick, 1 Dillon, 8; Lockington's Case, Brightly, 289; O'Brien, 30. "That army regulations duly issued by the Secretary of War are in law the acts and regulations of the President as Executive or Commander-in-chief, see U. S. v. Eliason, 16 Peters, 301 ; Do. v. Webster, Daveis, 59 ; Do. ■». Freeman, 1 Wood & Minot, 50-1 ; Lockington's Case, Brightly, 288 ; McCall's Case, 5 Philad., 269 ; In re Spangler, 11 Mich., 322 ; Cooley's note to 2 Story, Const. Law, 314 ; Flanders, Expos, of Const., 169 ; 6 Opins. At. Gen., 39. « See Maddux v. D. S., 20 Ct. CI., 198. " 8 Opins. At. Gen., 343 ; In the matter of Smith, 23 Ct. CI., 460. 28 MILITABY LAW AND PRECEDENTS. 22 quently to the adoption of the Constitution," may be said to have com- menced with the Act of March 3, 1813, c. 52, s. 5," in which the Sec- retary of War was authorized and required " to prepare general regulations better defining and prescribing the respective duties and potoers of the several offlcers in the adjutant general, inspector general, quartermaster general, and commissary of ordnance departments, of the topographical engineers, of the aids of generals, and generally of the general and regimental staff; which regu- lations," — it was added — " when approved by the President of the United States, shall be respected and obeyed until altered or revoked by the same authority. And the said general regulations, thus prepared and approved, shall be laid before Congress at their next session." Under this statute there was published a brief manual of regulations of some sixty duodecimo pages — the original of the compend now in use — ^bearing the endorsement : "Approved by the President, War Office, 1st May, 1813." These regulations were laid before Congress on June 7, 1813, but no legislative action was taken upon them." The next statute" of general importance was that of April 24, 1816, c. 69, ("for organizing the general staff," &c.,) by which, in section 9, it was enacted " that the regulations in force before the reduction of the army," (referring to the Act of March 3, 1815, " fixing the military peace establishment," after the war with Great Britain,) " be recognized, as far as the same shall be found applicable to the service, subject however to such alterations as the Secretary of War may adopt with the approbation of the President." " In view of the authority thus given for additions and amendments, there was published a second and more extended set of regulations, (embrac- 23 ing amplified regulations for the ordnance corps,) dated "September, 1816." These were published with additions in 1817 and 1820; and on March 2, 1821, in section 14 or chapter 13 of the Acts of that year, a revision by Gen. Scott, of the existing regulations, received the formal sanction of Con- gress by enactment as follows : — " that the system, of ' general regulations for tlie army,' compiled by Major General Scott, shall be, and the same is, hereby approved, and adopted for the government of the army of the United States, and of the militia when in the service of the United States." In the next year, "Prior to the adoption of tlie Constitution, Congress, (which then constituted the goTernment) , provided from time to time for regulations for tlie army, principally for the government of the staff corps. In some cases the Board of War, then consisting of civilians, was directed to make regulations. (2 Journals of Congress, 432, 520 ; 3 Id., 328.) In others, chiefs of the different corps were so authorized ; as the Quartermaster General, for certain classes of Ills employees (Id., 126; 3 Id., 253, 496) ; the Inspector General, (3 Id., 203, 523, 525 ;) the Director of Military Hospitals, (Id., 527 ;) and the Medical Board, (Id., 705.) The Secretary of War, after one was appointed by Congress, was, in addition to' his general duties, required to " regulate," or " direct," as to certain special subjects — as the malting of payments and retums and Iieeping of accounts by regimental paymasters, (4 Journals, 7,) the making and transmitting of returns by officers generally, (Id., 9,) and the duties of the commissary general of prisoners. (Id.) On March 29, 1779, Major General (Baron) Steuben's " System of Regulations for the Infantry of the United States," a work consisting mainly of tactics and instruc- tions for field service, was adopted and ordered to be observed in the Army. (3 Id., 237.) As to the publications of these and other early regulations and orders, see further in Gen. J. B. Pry's Pamphlet on " The Different Editions of Army Regulations," New York, April 10, 1876. "For prior legislation of inferior and temporary importance the student is referred to the Acts of May 9, 1794, c. 24, s. 5 ; March 2, 1799, c. 27, ». 5 ; Jan. 2, 1812, c. 11, s. 1 ; July 6, 1812, c. 128 ; March 3, 1813, u. 48, s. 5. The provision of March 19, 1802, relating to Regulations for the Military Academy, will be hereafter separately noticed. " Annals of Congress for 1813, pp. 23, 144. " The intermediate Act of Feb. 8, 1815, c. 38, s. 4, 10, provided specially for regula- tions for the ordnance department. " In s. 7 of this Act it was further provided " that the manner of issuing and aoeount- tng for clothing shall he established in the general regulations of the War Department." MILITAKY LAW AND PKECEDBNTS. 29 however, (1822,) by Act of May 7th, c. 88, the section of 1821 was expressly " repealed ;" " the grounds for this action mainly being that the regulationa as adopted operated with injustice in the provision authorizing the transfer of officers, and also in that relating to brevet rank. Neither of these pro- visions has, to the present time been repeated in the regulations of the army. The regulations approved in 1821 were first published to the army in " July, 1821," when they were prefaced by an order of the Secretary of War, which recited that they had been approved by Congress, with the exception of fotir- teen, (indicated by their numbers,) which had " received the sanction of the President." These regulations, notwithstanding the legislation of 1822, con- tinued to be observed till March 1, 1825,"° when an enlarged edition was pub- lished to the army. This, with some modifications, remained in force till Sep- tember 1, 1835, at which date a revision by Major General Macomb was printed by authority of the War Department, which was re-issued with amendments on December 31, 1836. Further on, January 25, 1841, May 1, 1847, January 1, 1857, and August 10, 1861, successive revisions, containing additions and varia- tions were promulgated ; each publication exhibiting an Introductory announce- ment to the effect tha't the regulations thus revised had been approved 24 by the President and were by his command published " for the informa- tion and government of the military service," to be from their date " strictly observed as the sole and standing authority upon the matter therein contained." And it is added, in the more recent issues, "nothing contrary to the tenor of these regulations will be enjoined in any part of the forces of the United States by any commander whatever." The revision of 1861 was repub- lished as of June 25, 1863, and this last edition remained in use during the latter portion of the late war and subsequently till the year 1881. Until the year 1866, the enactments of 1813 and 1816 continued to constitute the main legislative authority and sanction for the making and amending" of "Annals of Congress for 1822, pp. 1730-1734, 1753-1758, 1868. And see Gen. Fry's Pamphlet, (above cited,) p. 4. ^•They were so observed because of the previous sanction of the President, (under the Act of 1816,) which sanction was held by Atty. (3en. Wirt to have given them an effi- cacy not afltected by the legislation of 1822. 1 Opins., 547. And see G. 0., War Dept., May 22, 1822, in which, In stating the fact of the repeal of the provision of 1821 by that of 1822, it Is announced that — " the GSeneral Regulations for the Army " thus " rest solely on the sanction of the President. The said Regulations are, there- fore, continued in force by his authority In all cases where they do not conflict with positive legislation." a The power to amend the existing regulations, as conveyed by the Act of 1816, was repeatedly recognized by the authorities during this interval. Thus Atty.-Gen. Wirt In an opinion addressed to the Secretary of War in 1821, observes : — " I have no doubt that the Secretary may, with the approbation of the President, alter at pleasure the existing regulations, » • * even although such alteration should go to an entire change of the present system; provided that such regulations, as proposed to be altered, be consistent with the Constitution and laws of the United States." 1 Opins., 470. And see, to a similar effect, 1 Id., 549; 3 Id., 85. Later, Atty.-Gen. Cushing, referring to the enactment of 1816 as a " permanent provision " for army regulations, remarks that — "under this authority it is that the subsisting" (1853) "regulations for the army have legal effect." 6 Opins., 15. That the Act of 1816 authorized the Executive to alter at discretion the regulations recognized by it as in force, is also held by a United States Court in U. S. v. Maurice, 2 Bitock., 105. And compare, as to the au- thority to alter the regulations for the Navy, given by the Act of July 14, 1862 (Sec 1547, K. S.), the opinion of Atty.-Gen. Bates in 10 Opins., 416. It may be noted that the army regulations during this Interval received indirect sanc- tion from repeated statutes referring to them in general terms as the " existing regula- tions," or referring to the particular regulations relating to a certain subject, as trans- portation, forage, clothing, extra pay, etc., and also from a series of appropriation Acts in which appropriation was made for the " printing " of the same. In Maddux v. V. S., 20 Ct. CI., 198, the Court say : — " When Congress permit regulations to be formulated and published and carried Into effect year after year, the legislative ratification must be Implied." 30 MILITAEY LAW AND PKECEDENTS. general army regulations; these enactments indeed being from time to time supplemented by special statutory provisions relating to particular branches of the service.^ 25 Later Legislation. In 1886, by the Act of July 28th, c. 299, " fixing the military peace establishment " at the end of the war, the Secretary of War was " directed to have prepared, and to report to Congress, at its next session, a code of regulations for the government of the army and of the militia in actual service, which shall embrace aU necessary orders and forms of a gen- eral character for the performance of all duties incumbent on officers and men in the Tnilitary service, including rules for the government of courts-martial. The existing regulations to remain in force until Congress shall have acted on said report." Here the general regulations in use in the army were, as a whole, tor the first time since 1821, formally approved and recognized by Congress, and, for the first time since 1816, (when however new regulations were authorized only as "alterations" of those existing,) provision was made for a new issue. No regulations, however, were reported to Congress under this Act, or till after the passage of the Act next to be mentioned. Later, in 1870," by s. 20, c. 294, Act of July 15, the legislation of 1866 was, so far as regards the provision for new regulations, substantially superseded by an enactment — " that the Secreta^ of War shall prepare a system of general regulations for the administration of the affairs of the army, which, when ap- proved by Congress, shall be in force and obeyed until altered or revoked by the same authority; and said regulations shall be reported to Congress at its next session." In compliance with this statute, a complete set of army regulations was reported to Congress by the Secretary of War, on February 17, 1873." Nb determinate action, however, was taken upon these regulations 26 by Congress; but, in 1875, by Act of March 1, e. 115, (still in force,) the requireliient of the section of 1870, that the regulations be reported to and approved by Congress, was " repealed," and the President was specifically " authorised under said section to make and publish regulations for the gov- ernment of the army in accordance tvith existing lai»s." Here Congress relinquished the right, which It had repeatedly reserviSd in previous statutes, of ratifying, or at least supervising, the regulations, and surrendered to the Executive the fullest control over the subject. For not only is the President hereby empowered to make regulations without restriction as to form, quan- tity or quality, but also without limitation aS tb time. He thus has the power to re-make and alter, In the future "^^a power expressly given by the Act of 1816 and exercised thereunder till 1866, divested apparently by the legislation "" Many of these provisions are given in tlie First Edition, p. 24, note. It is not thought worth while to reproduce them here. Of the special regulations of this period the most extended and important were those which proceeded from the Provost Marshal General's Bureau, with the approval of the Secretary of War, under the Act of 1863 above cited. A set of these, first issued on April 21, 1863, was revised and republished with additions on May 1, 1864, and again on Sept. 1, 1864. The Act of March 3, 1851, c. 25, s. 2, 9, providing for regulations for the Military Asylum, (now Soldiers' Home,) not noted above, will be referred to hereafter. M Meanwhile special regulations relating to military subjects were authorized by sev- eral statutes of which the following are still in force : — Act of July 28, 1866, c. 299, 8. 17, (Kev. Sts., Sec. 1180, as to hospital stewards;) J. H. of May 4, 1870, (Id., Sec. 1225, as to issue of arms, &c., for colleges ;) Act of June 17, 1870, <;. 132, a. 1, (Id., Sec 4787, as to artificial limbs, &c., for disabled soldiers.) " These regulations are printed in Report, No. 85, Ho. of Reps., 42d Cong., 3d Smb. " In U. S. V. Ellason, 16 Peters, 301-2, the Supreme Court, referring to the general power of the Executive to establish regulations for the government of the army, say : — " The power to establish implies, necessarily, the power to modify or repeal, or to create anew." And see 3 Opins., 63 ; 5 Id., 41. MHilTAKY LAW AKD PKECEDBNTS. 31 of the latter year," reserved to Congress by the Act of 1870, but now fully restored. In the next year, (1876,) however, by a Joint Resolution of August 15, Congress " requested " the President " to postpone all action in connection with the publication of said regulations imtil after the report" of the Com- mission on the reform and reorganization of the army, created by Act of July 24, 1876, was " received and acted upon hy Congress at its next session." Upon the " report " here indicated no final action was ever taken, and the said Commission was, after March 4, 1879, discontinued. Thereupon, by Act of June 23d of that year," the Secretary of War was " authorised and directed to cause all the regulations of the army and general orders now in force 2? to 6e codified and published to the army, and to defray the expenses thereof out of the contingent fund of the army." The present Army Regulations. Upon this legislation, which was in effect an appropriation for the expense of carrying out the enactment of 1875, a compilation of regulations and general orders, in force February 17, 1881, was n»ade and published to the army by the Secretary of War as of that date. The authority to modify began soon to be resorted to, and was presently most freely exercised. The result was a multitude of amendments, additions and revoca- tions, announced in successive General Orders.^ These modifications became in a few years so numerous and confusing as to make necessary a further revision. This revision, published February 9, 1889, constitutes (with the amendments since made, for the modifying practice still goes on ") the existing Begulations for the Army upon the subjects em'braced. They have been repeatedly impliedly sanctioned in Acts of Congress since that date." Legal Effect and Force of Army Regulations. We have seen that Con- gress, in the existing law, no longer reserves to itself the function of approving the army regulations, or makes its approval of the same a condition to their taking effect, but that, under the Act of 1875 above cited, the President is vested with a general and exclusive authority to make and publish regulations for the army. As has heretofore been remarked, he may, in the due execution of the laws for the government of the army, make needful and proper regulations without any legislative authority whatever, similarly as he may give orders as con»mander-in-chief. A statutory authority for general army regulations is indeed mainly useful and significant as a justification of such expenses 28 as it may be necessary from time to time to incur in the publication of the regulations, since It implies that the requisite appropriation for the same will be made by Congress. •» See 14 Opins., 173. The view, however, expressed by the Atty. Gen., in his opinion, as to amendments, was not followed by the Secretary of War ; repeated amendments being made and published In Orders between 1866 and 1875. " Meanwhile — since 1870 — had intervened the Act of Aug. 15, 1876, c. 300, author- izing regulations as to the furnishing of artificial limbs la certain cases, and the Acts of March 3, 1873, e. 249, s. 2, and April 10, 1878, c. 58, to be hereafter referred to, providing for regulations for the Military Prison and tor the preparation, &c., of bids for contracts. "These Orders were about three hundred and fifty in number. Many of them con- tained amendments of more than one, often of several, regulations. Certain regula- tions were amended not once but several times in successive Orders. " Some two hundred Orders have since been issued, publishing modifications of these regulations. '" Mostly in the Army Appropriation Acts. See 25 Stats, at Large, 968 ; 26 Do., 154, 399, 777, 820, 874 ; 27 Do., 181, 484. [October 1, 1895. It is understood that a new set of Army Regulations is in prepara- tion and soon to be published.] 82 MILITAIIY LAW AND PSECEDBNTS. But, whether or not resting upon any express authority of statute, the legal effect of army regulations — as of other regulations proper — is, as already indi- cated, simply that of executive, administrative, instrumental rules and direc- tions as distinguished from statutory enactment." It is indeed somewhat loosely said of the army regulations by some of the authorities " that they have " the force of law," but this expression is well explained by the court in U. S. v. Webster," as follows: — "When it is said that they have the force of law, nothing more is meant than that they have that virtue when they are con- sistent with the laws established by the Legislatura." That is to say, while they have a legal force, it is a force quite distinct from, and Inferior and sub- ordinate to, that of the statute law. They have the force of law within their proi)er scope, not beyond it." They are thus not law in the sense of being a part of the " law of the land," nor are they embraced in the designation, " laws of the United States," but are law, and operative, as regulations only. As such they are law to the army and those whom they may concern, and so far are binding and conclusive." While regulations, "intended for the govern- ment and direction " of officers and agents under his authority, would not legally restrain, in the exercise of his executive powers, the President, 29 or the head of the Department by whom the same were made," yet the President, as well as any other executive official, would be so far bound by general regulations framed by him that he could not justly except from their operation a particular case to which they applied." Rejgulatlons are also recognized as conclusive upon the courts in cases to which they apply;" and when made in and for one department of the government, they are con- clusive upon any other department in which, in the settlement of accounts or claims, or otherwise, they are found to be pertinent to the subject."" The binding force and application to the army of the army regulations is illustrated by the fact that a failure to observe a regulation may constitute a military offence cognizable by court-martial under the 62d Art. of War." On " 4 Opins. At. Gen., 62 ; 8 Id., 343. »= Gratiot V. U. S., 4 Howard, 117; Ew parte Keed, 100 D. S., 13; TJ. S. v. Eaton, 144 U. S., 688 ; Symonda v. V. S., 21 Ct. CI., 151 ; In the matter of Smitb, 23 Ct. CI., 459 ; Smith v. V. S., 24 Ct. CI., 215 ; 14 Opins. At. Gen., 173'. " Davies, (2 Ware,) 54. And see Wilson v. V. S., 26 Ct. CI., 186. In McNamara V. TJ. S., 28 Ct. CI., 420-1, the Court, referring generally to the Regulations between 1857 and 1890, say : " Those Army Regulations, having been approved by Congress, are recognized as having the force of law." [As to the approval or sanction of the Regula- tions of 1889, see ante, p. 31.] "See U. S. ■». Eaton, 144 U. S., 688. »» See 2 Opins. At Gen., 520, 580 ; O'Brien, 31 ; V. S. v. E^eeman, 3 Howard, 567 ; tr. S. V. Morrison, 96 TJ. S., 233; also Arthur ■». TJ. S., 16 Ct. CI., 422, where it was held that a contract made by the Surgeon General with an acting assistant surgeon for a compensation in excess of that fixed by the army regulations did not bind the United States. And compare Camp. v. U. S., 113, U. S., 648. " Smith V. U. S., 24 Ct. CI., 215. And see TJ. S. v. Burns, 12 Wallace, 246 ; Byrne «. TJ. S., 23 Ct. CI., 255. " Arthur v. U. S., 16 Ct. CI., 422 ; 10 Opins. At. Gen., 17. ™ Locklngton's case, Brightly, 269 ; Maddux v. U. S., 20 Ct. CI., 193 ; Hughes v. Oaks, 59 Pa. St., 52. In the latter case, (p. 42,) the court, in reference to the author- ity devolved upon the Secretary of the Treasury by the Acts of July 13, 1861, and May 20, 1862, to prescribe regulations in regard to commercial intercourse pending the late war, observe : — "A sound discretion Is vested in him, and it being of a govern- mental character, it is not liable to our revision or reversal." But see post as to the action of the courts where regulations are not equitable, "5 Opins. At. Gen., 39-40; D. S. v. Freeman, 3 Howard, 567. " Digest, 70, 168. And see post, ch. xxv, — Sixty-Sbcond Abticlb. MILITARY LAW AND PRECEDENTS. 33 the other hand, officers and soldiers, in complying with an authorized regula- tion, will be Justified in law and protected by the courts." III. Pkinciples Governing Regulations. But, to have legal force and eltect, the regulations must conform to certain principles, as follows : " 1. They must not contravene existing law. Regulations proper be- 30 ing subordinate to statutory and constitutional law, it is clear that an executive regulation may not conflict with or contravene either the Con- stitution or the provisions of an Act of Congress, and that, where it does so, it is, so far, of no effect." So, if Congress by express legislation should cover the ground previously occupied by such a regulation, the latter would be displaced and become inoperative, the higher law being paramount." It is in recognition of this principle that, in statutes authorizing or directing the making of regulations, it is not unfrequently prescribed In express terms that the same shall not be inconsistent with, or contrary or repugnant to, the laws, or the Constitution and laws, of the United States, or in words of like import." But such a provision is "of course surplusage, a condition to this effect being always implied. 2. They must not legislate." Regulations must confine themselves within their appropriate province — ^must not trench upon that of legislation. A regula- tion which assumes to prescribe in regard to a matter which is properly 31 a subject for original legislation, departs from " the range of purely ex- ecutive or administrative action,"" is in a just sense a regulation no longer, ana can have no legal efCect as such. The leading case illustrative of this "Gates V. Thatcher, 11 Mln., 204. Note the Act of Dec. 17, 1813, c. 1, In regard to the laying of an embargo, in which (s. 11,) it Is provided that a collector sued tor exercising certain powers under the statute, " may give this Act and the instructions and regulations of the President in evidence for his justification and defence." " Should army regulations In the future materially fail to conform to the- principles stated, they may invite from Congress action similar to that taken in 1822. See ante. *» In D. S. V. Symonds, 120 U. S., 49, a naval case, it is said by the Supreme Court — " the authority of the Secretary " (of the Navy) " to issue orders, regulations and in- structions, with the approval of the President, in reference to matters connected with the naval establishment, is subject to the condition, necessarily Implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the navy. He may, with the approval of the President, establish regulations in execu- tion of, or supplementary to, but not in conflict with, the statutes defining his powers or conferring rights upon others. And see S. C. in 21 Ct. CI., 148 ; U. S. v. Webster, Daveis, (2 Kare,) 54; Boody v. U. S., 1 Wood. & Minot, 164; McCall's Case, 5 Fhilad., 259; In re Spangler, 11 Mich., 298; Magruder v. V. S., Devereux, 148; Harvey v. V. S., 3 Ct. CI., 41 ; Morrison ■;. U. S., 13 Ct. CI., 2 ; Romero v. V. S., 24 Ct. CI., 331 ; Cren- shaw V. U. S., 134 TJ. S., 109 ; 1 Opins. At. Gen., 470 ; 2 Id., 57-8, 232 ; 5 Id., 62 ; 6 Id.. 10, 215, 365; 11 ia.,\254; 13 Id., 516; O'Brien, 31. In a recent Order, G. 0. Ill, Hdgrs. Army, 1882, a certain regulation is " annulled " as being " in conflict with " a provision of the Rev. Sts. " 2 Opins. At. Gen., 232. And see McCall's Case, 269, 273. "See, for example, Rev. Sts., Sees. 1752, 2058, 2651, 2949, 2989, 3001, 3003, 3057, 3215, 4825, Acts of June 20, 1874, c. 344, s. 8 ; March 3, 1875, c. 136, s. 3 ; June 16, 1880, c. 253, 4 ; June 19, 1882, c. 231, 8. 1. The Act of March 1, 1875, authorizing the issue of the present army regulations, requires that they shall be " In accordance with existing laws." In Rev. Sts., Sec 2086, it is specified that certain regulations authorized shall be "not inconsistent with treaty stipulations," (with Indians.) "4 In re Grlner, 16 Wis., 447. "6 Opins. At. Gen., 15. In Magruder v. U. S., Devereux, 148, the Court of Claims, referring to regulations, observe — " It is the duty of the Departments to administer the law, and not to make it." 440593 0-42-3 34 MILITARY LAW AND PKECEDENTS. principle Is that of the regulations for the navy, entitled a " System of Orders and Instructions," Issued hy the President in 1853, and which were condemned by Attorney General Gushing as being mainly of a " legislative quality," and in derogation of the constitutional powers of Congress, and therefore unauthor- ized and inoperative." Similar views have been expressed by the authorities In other cases of a similar nature ; " and it can scarcely be questioned that an army regulation which should assume to impose a condition upon the enjoy- ment of a statutory right or the exercise of a statutory authority, to vest or divest rights to pay " or rank, to restrict or extend the jurisdiction of a court- martial or otherwise administer justice," to dispose of public property, to direct as to what persons should or should not be enlisted in the army!" to prescribe rules of evidence, or to regulate any other subject usually and properly reg- ulated by the legislative department under the powers conferred upon Congress by the Constitution — ^would be ultra vires and unauthorized. Whether indeed a regulation does or does not partake of the character of legislation may sometimes be an embarrassing question. It has been remarked by Attorney General Gushing that " cases may be supposed in which It Is not easy to draw the line between what is legislative and what is executive and ministerial." " And Chief Justice Marshall, in expressing himself to a similar effect, has added that "the precise boundary of this power," (that of 32 making executive regulations,) "is a subject of delicate and diCacult inquiry."" 3. They must confine themselves to their subject. This principle is espe- cially apposite to regulations authorized or directed by special statute to be made with regard to some particular subject : when made, they must be within the specific authority conferred, or (unless authorized under the general ex- ecutive function), they cease to be operative. The application of this principle has been variously illustrated by the authorities." In some cases a statute, in authorizing regulations, has expressly provided that the same shall conform to, or not contravene or be incompatible with, the provisions of the Act Itself which is the source of the authority. As to the extent of the authority conveyed by the statute — this, where In- definite, is to be gathered not so much from the descriptive words employed as from the nature of the subject to which the regulations are to apply. To the use in a statute of the words " general," " special,'' " general and special," "necessary," "proper," "suitable," &c., in designating the regulations to be prepared, little or no significance is ordinarily to be attached, such terms being "6 Opins. At. Gen., 10-19. "10 Opins. At. Gen., 11-18, 413-4; 4 Id., 226; In re Griner, 16 Wis., 433-4; McCall's Case, 5 Philad., 269. " See Symonds v. V. S., 21 Ct CI., 152, 154. ■" That a regulation alone cannot make an act or omission a criminal ofTencp, but that for this a statutory requirement Is essential — see D. S. v. Baton, 144 U. S., 688. ^ Sec Third Aeticle — " Enlistment in general," Chapter XXV. '»6 Opins. At. Gen., 15. Similarly Atty. Gen. Legar^, (4 Opins., 59,) refers to the authority " often delegated to the Courts to adopt rules of practice " as " in some cases falling little short of legislative power." " Wayman o. Southard, 10 Wheaton, 43, 46. And to a similar effect, see In re Oliver, 17 Wis., 681 ; Cooley, Prlns. Const. Law, 44. » See Aldridge v. Williams, 3 Howard, 29 ; Allen v. Colby, 47 N. H., 544 ; Antrim's Case, 5 Philad., 285 ; McCall's Case, Id., 259 ; Newman v. Wright, 28 Ind., 105 ; 5 Opins. At. Gen., 39-^0, 62 ; 10 Id., 476-479. And compare In the matter of Ferrens, 3 Bene^ diet, 442, where it was held that the " regulations for the government of the army " re- ferred to in the Act of July 28, 1866, s. 37, applied only to persons actually in the army, and not to persons to ie enlisted. MILITAEY LAW AND PRECEDENTS. 35 Indeed surplusage." So, no materially different Import, in respect to the degree of the authority, Is in general to be ascribed to the words "authorized" and " required," or their synonyms. Nor is the scope of the authority necessarily to be deemed to be essentially affected by the character or dignity of the official in whom it is vested. But where the regulations are to pertain to an 33 extended and unusually important subject, as where they are to carry Into effect an entire statute of many or varied provisions ; where they arn to adjust the details of a ramified and comprehensive system ; where high public considerations enter into the execution of the Act under which they are to be established; — ^in cases such as these the authority must needs be larger and more liberally construable than where the subject of a single provision, or a subject of a limited range or consequence, is to be regulated." The widest discretion in the framing of regulations may, it Is conceived, properly be taken by the Executive in a case where the enactment conveying the authority has been prompted by the necessities of a grave public emergency, and especially J>a existing or impending state of war." 4. They must be uniform. The further minor prmciple has also been noticed by the authorities that regulations must be " uniform," that Is to say In their application ; — that they must apply equally and alike to all the persons or subjects of the class to which they relate. In this view. Attorney General Legar^, in aidvising the Secretary of the Treasury as to certain regulations to be Issued by him under the revenue laws, observes — " I need scarcely add that your regulations must be uniform throughout the Union." " So the Supreme Court, in an adjudged case,*° remark, of army regulations, that they " must be uniform and applicable to all officers under the same circumstances." In a few Instances the public statutes, in providing for regulatlonSj have specially required that they be " uniform." " 5. They should be equitable. It need scarcely be added that regulations should be Just and equitable — that they should not be arbitrary or 6p^ 34 pressive." As already noticed, a regulation cannot deprive a person ol a legal right," and where a regulation is found to work an injustice in any material matter, as in the settlement of an officer's accounts, it will be disregarded by the courts." OBJECTIONABLE EEATITBES OE AHMY BEOUX^ATIONS. To the stu- dent, as well as in practice, army regulations are the most unsatisfactory ele- ment of our written military law. Presented in connection with statutes from which they are sometimes imperfectly discriminated ; not unfrequently them- selves partaking of the character of legislation and thus of doubtful validity ;" "• In dates v. Thatcher, 11 Minn., 204, the court in construing a provision of an Act of Feb. 24, 1864, providing for the furnishing by a drafted person of a substitute, " sub- ject to such rules and regulations as may be prescribed by the Secretary of War," re- mark : " Clearly, we think, by this provision, the Secretary of War may prescribe any regulations necessary or reasonable to protect cither the government, the substitute, or the principal." "See The Thomas Gibbons, 8 Cranch, 428-9; Lockington n. Smith, 1 Peters, C. C, 470-473. « Hughes V. Oaks, 59 Pa. St., 41, 42. »4 Opins., 63. "TJ. S. V. Ripley, 7 Peters, 25. And see U. S. v. Webster, Daveis, (2 Ware,) 60. « As in the Acts of Aug. 10, 1846, c. 175, s. 2 ; March 3, 1863, c. 71, s. 27. "2 "It would be directly repugnant to the character of the power conferred, to sup- pose that a power to make rules was a power to dispense with them altogether, and to substitute in their place caprice or arbitrary discretion." Atty. Gen. Toueey, 5 Opins., 42. "See 4 Opins. At. Gen., 223. "U. S. V. Cadwalader, Ollpln, 563. And see U. S. v. Mann, 2 Brock. 9, 11. " See instances referred to In Digest, "Army Regulations," S 6. 36 MILITABY LAW AND PRECEDENTS. and fatally subject, as we have seen, to constant and repeated modification, their effect too often is to embarrass and mislead where they should assure and facilitate. To render them entirely useful, they should, in the opinion of the author, be reduced to the smallest available bulk; all that are really statutes and all that are of a legislative quality should be eliminated ; only those should be included that are purely general, those relating to the business of the staff corps being left to be established by the heads of the same, subject to the approval of the President; and the authority to amend should be most rarely exercised. IV. Special Sets of Regulations. Besides the special regulations for certain of the staff departments of the Army— as the Ordnance, Medical Subsistence, &c., departments — which are contained in the General Army Kegulations, there are special sets of regula- tions, in no part embraced therein, which may properly be noticed in this Chap- ter — ^ag follows: 1. THE REGUIiATIOlTS FOB THE MILITABY ACADEMY. While the cadets, professors, etc., of the West Point Military Academy, are, as a part of the Army, subject to the Army Regulations, so far as applicable to them," they are also subject to special regulations framed expressly for their govem- 35 ment as a separate branch of the military establishment. These regula- tions, initiated in the authority given by or implied from the Acts of March 16, 1802, c. 9, s. 26-28, and April 29, 1812, c. 72, s. 3, organizing and making provision for the corps of engineers," now consist of a set, of 362 para- graphs, published in 1877, and republished June 1, 1883; this revision having been preceded by various issues, of which the principal were published in 1831,. 1853, 1857, 1866 and 1873. Less extended regulations had previously existed In writing and are found in records of the Engineer bureau dated as early as in 1817 and 1818. The regulations of 1883, with a few amendments since made, constitute the Regulations of the Military Academy. The authority and binding force of the special regulations for the Academy, and the power of the President to modify and add to the same, have been rec- ognized in the opinions of the Attorneys General." It need hardly be observed that the principles, heretoiore indicated as prop- erly governing the framing of general regulations for the array and their sub- stance, are equally applicable to these special regulations." a. BEGTJLATIONS FOB THE MILITABY PBISOITS. The Act of March 3, 1873, c. 249, which provided for the establishment of the Military Prison maintained at Fort Leavenworth, Kansas, required the Secretary of War to organize a Board of direction which, it was added, should " frame regulations for the government of the prisoners in accordance with the provisions of the Act." " ^^_^_^ "l Opins. At. Gen., 328. "The published volume includes also regulations specially authorized or directed, by Sees. 1319 and 1330, Sev. Sts., to be prescribed for the examination of appointees to cadetships, and in regard to the granting of leaves of absence to officers of the Academy. «8 1 Opins. At. Gen., 460 ; 7 Id., 328. "•The only portion of these regulations which would appear to be subject to legal criticism is that relating to " Discipline." Some of the paragraphs under this head are in the nature of articles of war, and might thus be deemed to trench upon the province of legislation, ™RCT. Sts., Sec. 1345. By a recent Act of March 2, 1895, this Prison is " transferred from the Department of War to the Department of Justice, to be known as the United States Penitentiary." MILITARY LAW AND PRECEDENTS. 37 A set Of regulations for this purpose was published from the Head- 36 quarters of the Army in 6. O. 12 of February 19, 1877, and subsequent amended sets in G. O. 100 of 1883, G. O. 5 of 1888, and G. O. 131 of 1890. These relate to the duties of the officers and employees at the institution and the books and accounts to be kept by them, and further to the admission, classification, diet, clothing, labor and discipline, of the prisoners, the school and library for the same, &c. For the military prison at Alcatraz Island, California (not established by statute), rules and regulations were adopted and published by an order of the Department Commander, dated August 29, 1873, and revised and republislied In August, 1880. 3. KEGXTLATIONS FOB THE SOLDIERS' HOSEE AND THE NATIONAL HOME FOB DISABLED VOLTJNTEEB SOLDIEBS. As the former of these institutions is placed under military direction, and the Inmates of the latter are discharged officers and soldiers, the regulations for the same may properly be noticed here. Soldiers' Home. By the Act of March 3, 1851, c. 25, entitled " an Act to found a Military Asylum," it is provided that certain designated officers of the army " shall be ex offlcio Commissioners of the same," and these Commission- ers are further empowered to establish from time to time regulations for the government and direction of the institution, subject to the approval of the Secretary of War." Under this authority regulations were adopted on March 27 and May 30, 1851, which were revised October 8, 1866. A new set was adopted January 31, 1883, which, however, was replaced by a revised set — that now in force — of April 9, 1883, approved by the Secretary of War, April 17, 1883. These regulations relate to the qualifications for admission to the Home, applications for admission, the rights and privileges of the inmates, and their government, the duties of the officers of the institution, function of the Board of Commis- sioners, &c. Volunteer Home. By the Act of March 3, 1865, incorporating this institu- tion, as amended by that of March 21, 1866, the designated Board of 37 managers, who are also the corporation, are authorized "to make by- laws, rules and regulations, for carrying on the business and govern- ment of the home, and to affix penalties thereto." " Pursuant to such authority, there was adopted by the Board in 1866 a set of by-laws and regulations, consisting of 23 Articles, and relating mainly to the appointment and duties of the officers of the institution and the admission and disposition of its beneficiaries. In Art. 18, in which the duties of the " Gov- ernor " are set forth, it is provided that — " he shall from time to time make printed rules for the government of the employees and inmates of the Institu- tion." Such rules have accordingly been made and published, in the form of General and Special Orders, &c., relating to military organization, discipline, labor, police, inspection, superintendence of shops, farm, &c., creation of a fire company, use and disposition of clothing, issue of quartermaster stores and tobacco, free postage, passes, and a variety of other subjects. The Begulations of the Home were republished, with additions, in 1892. 4. OTHER SPECIAL BEGTJLATIOWS. Other formulated regulations for purposes of instruction, administration, &c., in the array, have been promul- gated from time to time, of which the following are the principal : The " Firing "Rev. Sts., Sec. 4815. Amended, and the Board of Commissioners reconstituted, by Act of March 3, 1883, c. 130. "Eev. Sts., Sec. 4825. 38 MILITARY LAW AND PEKCEDElirTS. Regulations for Small Arms," adopted in G. O. 1 of 1889; The " Infantry Drill Regulations," adopted October 3, 1891; The "Cavalry Drill Regulations," adopted on the same date;" The Regulations for the examination of officers for promotion, published in G. O. 80 of 1891, amended in G. O. 6 of 1893 ; The Regulations for the examination of enlisted men for promotion to the grade of lieutenant, published in G. O. 79 of 1892; The Regulations in regard to the detail and duties of officers assigned to colleges, last Issued in G. O. 93 of 1893 ; The Regulations accompanying the code of maximum punishments, contained in G. O. 21 of 1891, amended by G. O., 16 of 1895; The Regulations for the government of the Army and Navy General Hospital at Hot Springs, Arkansas, set forth in G. O. 60 of 1892 ; The " Post Exchange Regulations," published in G, O. 46 of 1895. II. Orders. All orders, written or oral, made or given by any competent authority, 38 from the commander-in-chief to an acting corporal, are indeed in a gen- eral sense a part of the law military ; their observance by inferiors being strictly enjoined and their non-observance made strictly punishable. The or- ders, however, to which reference is now to be made, are the formal, generally printed, Orders, Issued by the highest authority of the Army or of some high command, and preserved as a part of the permanent records of the military establishment. ORDERS or THE PRESIDENT. As constitutional Commander-in-chief of the Army, and independently of course of any authorization or action of Con- gress, the President is empowered to issue orders to his command ; and the orders duly issued by him in this capacity, while ordinarily of but temporary importance as compared with his general army regulations, are obligatory and binding upon whom they concern, and so properly classed as a portion of the general law military. The validity and force of such orders have been repeat- edly recognized by the authorities." Their form and contents. The orders of the President, as commonly issued, are in the form of, and designated as, General and Special Orders ; the latter which relate chiefly to individual cases not being, in practice, published to the army at large. Since 1864, the orders announcing the action of the President upon the proceedings of general courts-martial, which before were incorporated with the other General Orders,- have been separately issued and numbered under the name of General Court Martial Orders" Both General and Special Orders have formerly for considerable periods emanated, 39 and may still emanate, directly from the Secretary of War, who, in mak- ing and publishing the same, as in most of his other official proceedings," ™ With these Regulations may he classed the " Army Artillery Tactics," adopted July 17, 1873 ; the " Manual of Heavy Artillery," (Tldball's,) adopted Dec. 10, 1879 ; the " Manual of Guard Duty," (Kennon's,) adopted hy G. O. 26 of 1890, and similar pub- lications. " See 2 Opins. At. Gen., 225, 228, 232 ; 5 Id., 15 ; 10 Id., 14 ; The Thomas Gibbons, 8 Cranch, 427 ; D. S. V. Freeman, 1 Wood & Minot, 50 ; Cowell v. Hopkinton, 45 N. H., 14 ; also the Act of Feb. 19, 1873, c. 169. Congress has, in some instances, expressly directed that certain matters " he pub- lished in General Orders." See Acts of June 25, 1864, t. 149, s. 2 ; July 4, 1864, k. 253, B. 6, 10. '5 Similar forms and designations are given to the Orders issued from the Head- quarters of Military Divisions and Departments, and of Armies in time of war. [But see, now, G. O. 29 of 1894, directing the resuming of the old form of publica- tion in " General Orders," " in cases of ofllcers and in important cases of enlisted men."], " In all, except where Congress has, as it may do, invested him with independent powers or devolved upon him independent duties. Kendall -o, U, S., 12 Peters, 610. MILITARY LAW AND PKBCEDENTS. 39 acts as the representative and presumably by the direction of the President ;" the indication^" by the direction of tlie President," though not essential," being not unfrequently expressed. Such Orders are now, however, usually promul- gated through the Headquarters of the Army; although the provision of the Act of March 2, 1867, requiring that " all orders and instructions relating to military operations " should be " issued through the General of the Army," was repealed by the Act of July 15, 1870, c. 294, s. 15. The only Orders of this class which are now. In practice, signed by the President are those setting forth his action on sentences of court-martial, of which his confirmation is required by law — as sentences of dismissal of officers. This sign-manual is not, however, necessary even here." As has heretofore been noticed, the General Orders in force on February 17, 1881, were, by the authority and direction of the Act of June 23, 1879, com- piled and published by the Secretary of War in connection with the existing Army Regulations, and printed therewith in the volume issued from the War Department on the date first named : they were thus practically converted into regulations. So the volume of the succeeding and now existing Regulations of 1889 purports to contain " a condensation and revision of all regulations and standing orders in force at its date." The General Orders cover a great variety of particulars connected with 40 the discipline, employment, pay, clothing, subsistence', quartering and transportation of the army, the providing them with animals, arms, munitions, &c. As certain so-called " Regulations " are not properly classed as such, so a considerable proportion of the General Orders are not orders at all but media for the promulgation to the army of new legislation of Congress, regulations made or amended, appointments, promotions, etc., of officers, opinions of courts or law-officers, or other matters of information of value to the service. In time of peace indeed the Special Orders, by which direction is more commonly given as to the duties of inferior officers, changes in station, details of general courts, discharges of soldiers, &c., &c., are in a larger proportion orders proper than those designated as General. In connection with the General Orders are from time to time published " Circulars " to the army, the usual purpose of which is not to convey commands but to com- municate rulings and decisions of the Secretary of War, and to advise officers, etc., of matters of which they will properly take notice in the course of the per- formance of their functions and duties. ORDERS OF MILITARY COIOIANBERS. Of a similar force and effect to the Orders of the President, though within a narrower range, are the General and General Court Martial Orders, and Special Orders, made and published by the superior military commanders, such as commanders of Divisions and Depart- ments. As to the Orders thus promulgated in their general military capacity, these commanders directly represent, and exercise in a greater or less degree the authority of the Commander-in-Chief." In the Orders in which they act " Parker v. U. S., 1 Peters, 297 ; U. S. v. Eliason, 13 Id., 302 ; U. S. v. Freeman. 1 Wood & Minot, 50 ; Lockington's Case, Brightly, 282 ; Jn re Spangler, 11 Mich., 313, 322 ; In re Neagle, 39 Fed., 834 ; Opins. At. Gen., 380 ; 7 Id., 453 ; 10 Id., 14 ; 14 Id., 458. In some instances during the late war, orders termed " Executive Orders," or " War Orders," were issued directly hy the President in his own name, similarly to proclama- tions. See such orders In Vol. XIII. Stats, at Large, pp. 775-778; G. O., War Dept., of March 11, 1862 ; Do. 252, 300, 331, of 1863 ; Do. 35, 100, 308, of 1864. ™ See 17 Opins. At. Gen., 19, 44 ; 15 Do., 290. " D. S. V. Page, 137 D. S., 673. »>See Lockington's Case, Brightly, 289; Clark v. Dick, 1 DUIon, S; Napier, 67, 116. 40 MILITARY LAW AND PKECEDENTS. upon the proceedings and sentences of courts-marttal, they exercise an author- ity expressly conferred upon them by statute, though here too they act practi- cally as substitutes for the Commander-in-chief. The very numerous Orders, especially of the latter character, Issued during the late war, are a monument to the fidelity to duty and scrupulous regard for justice which Jiave in general characterized our high commanders in war as well as in peace. In the thou- sands of these Orders published during that period from the headquarters of the various departments, divisions, districts, brigades, armies and army corps, the errors of law discovered have been strikingly few, and the cases 41 in which justice has not clearly been duly administered most rare. To these Orders, as a most valuable part of our military law and history, references will be abundantly made in the course of the following Chapters. PMNCIPI/ES GOVERNING OBDEBS. As in the making of Eegulations, so in the framing of Orders, the principles heretofore laid down to the effect that executive acts may not trench upon the province of legislation, or con- flict with the existing constitutional or statutory law, are to be strictly ob- served. " Further, Orders should not conflict with established Regulations." And Orders issued by commanders of departments or armies, or other mili- tary authorities inferior to the President, may not contravene the orders of the latter as Commander-in-chief. " 2 Opins. At. Gen., 230-234 ; 6 Id., 15. In an Act of March S, 1863, two designated General Orders of the War Department, relating to enlistments, were in express tei'ms " rescinded " by Congress. a> 2 Opins. At. Gen., 230-234 ; lU Id., 17. CHAPTEE IV. THE UNWRITTEN MILITARY LAW. 42 While the Military Law has derived from the Common Law certain of the principles and doctrines Illustrated in its code,* it has also a lex non scripta or unwritten common law of its own. This consists of certain established principles and usages peculiar or pertaining to the military status and service, and which, though unenacted, are recognized in the 84tli article of war, under the designation of " the custom of war," as a means for the guiding of courts-martial in the administration of justice In doubtful cases. The same are also recognized by the courts and legal authorities as operative and conclusive as to questions in regard to which the written military law is silent.'' This unwritten law may be said to include : — 1. The " customs of the service," so called ; 2. The unwritten laws and customs of war. 1. USAGES OR CUSTOMS OF THE SERVICE. These, whether origi- nating in tradition or in specific orders or rulings, are now, as such, not nu- merous, a large proportion, in obedience to a natural law, having changed their form by becoming merged in written regulations embraced in the General 43 Regulations of the Army.' The regulations, for example, on such sub- jects as discipline, precedence, command, arrests, and the procedure of courts-martial, are in great part but the specific expression of usages of more or less early date, most of which have come to us from the British service. As to the procedure of military courts. Here, however, usage still gov- erns as to various important particulars. Thus a reference to usage as fur- nishing a guide for the judgment of the court upon the Finding is not un- frequently required to be made on military trials, and especially as apposite to the question whether the facts alleged or proved constitute the military offence charged. For example, — ^whether an order which the accused Is charged to have disobeyed was a " lawful " order ; whether the accused is to be considered as having been " on duty " at the time of his alleged offence ; whether an oflScer charged to have been assaulted by a soldier was at the time " in the execution of his office ;" whether certain acts amount to " conduct un- becoming an officer or a gentleman," or to "conduct to the prejudice of good > See 1 Oplns. At. Gen., 233 ; 6 Id., 204 ; Prendergast, 200. 2 " The general usage of the military service, or what may not unfitly be called the customary military law." Story, J., in Martin v. Mott, 12 Wbeaton, 35. And see Bar- wis V. Keppel, 2 Wilson, 314 ; U. S. v. Macdaniel, 7 Peters, 14 ; V. S. v. Webster, Daveis, (2 Ware,) 42, 43, 56 ; 1 Oplns. At. Gen., 699 ; 2 Id.. 461 ; 1 Bishop, C. I.., S 50 ; Cooley, Prlns. Const. Law, 137; Prendergast, 53; Simmons, § 80; Clode, M. L., 128; O'Brien, 223 ; De Hart, 20 ; Kautz, Customs of the Service- For an express statutory recognition of " the usages and customs of armies," and " the custom and usage of the sea service," see c. 27, s. 8, and c. 24, s. 11, Acts of March 2, 1799. 'Compare U. S. v. Webster, Daveis, (2 Ware,) 56; O'Brien, 223. 41 42 MILITAEY LAW AND PEECEDElirTS. order and miUtary dlsclpUne;" in what acts consist the offences of false muster, mutiny, misbehavior before the enemy, breach of arrest, or deser- tion; — as to such questions, the court in deliberating upon its judgment (as also the commander in passing upon the same), will constantly recur to the general usage of the service as understood and acted upon by military men. Usage may also be authoritative In connection with the question of the pun- ishment to be imposed by the Sentence. The Articles of war and the Regula- tions indeed specify nearly all the species of punishment to which an officer or soldier may be subjected; but to determine in some cases as to the kind, and in others as to the degree, in amount or duration, of the proposed punish- ment; to decide whether the same is sanctioned by custom or Is "unusual;" as also in some Instances to indicate or direct as to the form of the execution of the penalty — the court, (or the reviewing authority,) will not unfrequently have occasion to take Into consideration the unwrlten law or practice of the service.* 44 2. liAWS OH CUSTOMS OP WAR. These are the rules and prin- ciples, almost wholly unwritten, which regulate the intercourse and acts of Individuals during the carrying on of war between hostile nations or peoples. While properly observed by military commanders in the field, they may often also enter into the question of the due administration of justice by military courts In cases of persons charged with offences growing out of the state of war. Such laws and customs would especially be taken into consideration by military commissions In passing upon offences in violation of the laws of war. But courts-martial also. In time of war, may have occasion to recur to the same, upon trials of military offences peculiar to a state of war and expressly made cognizable by such courts by the Articles of war— as, for instance, the offences of relieving an enemy (Art. 45), corresponding with or giving Intelli- gence to an enemy (Art. 46), forcing a safeguard (Art. 57), and the offence of the spy." (Sec. 1343, Rev. Sts.) And so, upon trials involving the rights or obllgatiohs of prisoners of war. In such cases the unwritten laws and cus- toms of war, as generally understood In our armies or as defined by writers of authority, will often properly be consulted as Indicating whether certain acts are to be regarded as constituting the offences charged, or what measure of punishment will be just and adequate in the event of conviction. Certain of these laws and customs will hereafter be referred to In considering par- ticular Articles of war. In the main, however, they pertain to the separate Title of the Laws of Wab, the subject of Part II. of this work. ESSENTIALS OF A TTSAOE OR CUSTOM. As to what constitutes a usage or custom In law, — ^It Is laid down by the authorities that It must consist of a uniform, known practice of long standing, which Is also certain and 45 reasonable,' and is not in conflict with existing statute or constitutional * Less frequently now indeed, in view of the enactment of the statute of Sept. 27, 1890, c. 998, authoiizing the President to prescribe maximum, punishments — since pre- scribed by him in G. O. 21 of 1891, (amended by G. O. 16 of 1895.) ■ The original Article of War of 1806, In regard to spies, provided that, on convic- tion, they should " suffer death according to the law and usages of nations." • U. S. V. Duval, Gilpin, 356 ; Collings v. Hope, 3 Washington, 149 ; U. S. v. Buchanan, 8 Howard, 102 ; Knights of Pythias' Case, 3 Brewst., 452 ; Minis, v. Nelson, 43 Fed., 777 ; 2 Greenl. Bv., § 251 ; 2 Parsons, Con., 48 ; Lawson on Usages and Customs, 2-15. It must be so long-continued and notorious that all persons concerned may be presumed to have knowledge of it, Wadley v. Davis., 59 Barb., 503 ; Saint v. Smith, 1 Cold., 01. MILITAEY LAW AND PRECEDENTS. 43 provisions.' A civil custom cannot set aside or modify the statute lavir,' or subsist in regard to any matter regulated by such law." Moreover a prevail- ing usage is superseded when an enactment is made covering the subject: a usage can grow up or continue only in reference to a subject upon which the written law is silent or quite obscure., So, a usage or custom of war or of the military service, to be recognized and acted upon as such by a military court or commander, must have prevailed without variation for a long period, must be well defined, equitable, and uniform In its application, must not be prejudicial to military discipline, and must not only not be at variance with the statute or written law relating to the army but must pertain to a subject not 46 provided for by such law." A ministerial officer (as it has been observed by a U. S. Court)" cannot institute a usage, but the same must be built up out of a series of precedents;" so, a custom of the service cannot be created by isolated or occasional instances," or by the practice of a particular command or commander,'* but must b? a usage of the army at large or of some separate or distinct branch of the military establishment, as, for example, the Military Academy and Post of West Point. An Illegal or unauthorized practice, how- ever frequent or long continued, cannot constitute a legal usage. CUSTOM OF THE SEBVICE AS A DEFENCE. It will be apparent from the foregoing that an alleged military usage cannot avail an officer or soldier charged with a military ofCence, to vindicate his act, except where Its existence and its lawfulness are susceptible of exact proof. " Custom of the service " — ' Thompson v. Rlggs, 5 Wallace, 680 ; The Floyd Acceptances, 7 Id., 677. " No erro- neous practice of however long standing can Justify the allowance of a claim " against " the true Intent and meaning " of a statute. U. S. v. Freeman, 3 Howard, 564. Usage " arises from long recognized rights countervened hy no legislative action." Miller t>. McQuerry, 5 McLean, 472. And see authorities cited in preceding note; also 6. C. M. O. 86, Dept. of Dakota, 1892. ' 6 Opins. At. Gen., 73. But though usage cannot alter the statute law, it may he evidence of the construction given to it. U. S. v. Gilmore, 8 Wallace, 330 ; 2 Opins. At. Gen., 460 ; 3 Id., 363. It may also he evidence of the Intent or purport of a regula- tion. 2 Id., 560, 705 ; 8 Id., 5. This is especially true of the usages of the executive departments of the government. U. S. v. Gilmore ; U. S. v. Lytle, 5 McLean, 17 ; U. S. v. Maurice, 2 Broclc, 100. • " Generally, a statutory enactment controls all prior usages and laws, and estab- lishes the rule which governs the subject-matter." U. S. v. Collier, 3 Blatchford, 332. M " In order to apply it " (the custom of war) " to any particular case, It must bo certain and well defined, and clearly not opposed to any law or regulation." De Hart, 20. There can he " no excuse for a practice which, with whatever good intentions, is forbid by law." G. O. 1, War Dept., 1861. " Customs of service can only be taken as precedents to follow, when intrinsically proper of themselves, and supplementary of the written law and regulations, on points on which the latter are silent, and when not in direct opposition to these." G. O. 2, Dept. of Texas, 1874. (Gen. Augur.) "The evi- dence of a custom to disobey a General Order was rightly rejected by the court. A custom, to be a good one, must not be contrary to law, or the law governing troops, but must be a general custom, a well-known custom to all the command." G. C. M. O. 2, Dept. of Va. & No. Ca., 1865. (Gen. Butler.) And see Hough, C. M., 372, 620; G. 0. 4, Dept. of La., 1866 ; Do. 15, First Mil. Dlst., 1870. That a custom of the service must be uniform is held by the court in U. S. v. Buchanan, Crabbe, 578, where, referring to an alleged usage in regard to the emoluments of pursers in the navy, it is said : "A usage to l)e binding must be uniform and applicable to all officers of the same grade under similar circumstances." In 4 Opins., 18, Atty. Gen. Legar«, in allusion to k supposed usage of courts-martial in regard to adjournments, says : " This I understand to be the uniform practice ; and uniform practice is good law in such cases when it is not unreasonable and works no wrong." " U. S. V. Babcock, 4 McLean, 113. " See 5 Opins. At. Gen., 351. "U. S. V. Buchanan, 8 Howard, 102. " Compare Greenwich Ins. Co. v. Waterman, 54 Fed., 839. 44 MILITAKY LAW AND PRECKDENTS. it is remarked in a General Order " — " is a treacherous tribunal, and it is a hazardous thing for an officer to appeal to it to justify failure to obey orders or a departure from strict compliance with the articles of war." The existence in a command of an unauthorized practice, sanctioned by a commanding or superior officer, may sometimes extenuate the act of a subordinate who adopts it, but, unlike a legal custom, it cannot serve as a defence" >=G. O. 42, Dept. of Washington, 1866. (Gen. Angur.) And see G. C. M. 0. 86, Dept. of Dakota, 1892. '" In G. C. M. O. 1, Dept. of the Mo., 1885, the court. In connection with its sentence, observes : " The court is of opinion that the following of an unauthorized and perni- cious custom constitutes no good defence for any neglect on the part of the accused." [For " custom " the term should, strictly, have been practice: custom proper cannot, of course, fitly be described as "unauthorized."] And see Do. 22, Id., 1887. CHAPTER V. THE COTTET-MAETIAL— ITS HISTORY ASD NATTlilE. 47 Having seen in what consists Military Law, we proceed to consider the tribunal by which it is mostly administered — the Court-Martlal. The subject will be presented, in this and succeeding Chapters, under the foUow- ing heads: I. The Origin and History of the Court-Martlal. II. Its Nature as a legal tribunal. III. The Constitution of General Courts-Martial. IV. The Composition of General Courts-Martial. V. The Jurisdiction of General Courts-Martial. VI. The Procedure of General Courts-Martial. VII. The Inferior Courts-Martial. THE ORIGIN AND HISTORY OF COURTS-MARTIAL. EABLT FOBMS— THE FBAHCO-GERMAN SYSTEM. Some form of tri- bunal for the trial of military offenders would appear to have coexisted with the early history of armies. In those of Rome justice was commonly admin- istered by the magistri nUlitum, and especially by the legionary tribunes, either as sole judges or with the assistance of councils.* Among the early Germans, judicial proceedings in time of peace were conducted by the Counts assisted by assemblages of freemen ; in time of war by the Duke or military chief, who, as heretofore remarked, usually delegated his jurisdicUon to the priests who accompanied the army and carried its banners. At a later period arose courts of regiments, held either by the colonel or by an officer invested by him with the staff or mace called the reffi^fint, as the emblen» of judicial authority, 48 and of which courts soldiers as well as officers were eligible as members : for the trial of high commanders the King convened courts of bishops and nobles. During the Middle Ages, however, the civil and military jurisdictions were, as indicated in Chapter II., but imperfectly distinguished, and it was not till a comparatively modem date that special courts administering military codes may be said to have been instituted.' In France, courts-martial {conseils de guerre, ) appear to have been first established by an ordinance of 1655, mili- tary persons having previously been subjected to the jurisdiction, successively, of the Mayor of the Palace, the Grand Seneschal, the Constable, and the Provost Marshals.' In Germany, courts-martial proper, {militdrgerichts,) may probably be traced back to the articles, already referred to as earliest in date, of the Emperor Frederick III. of 1487: they were specifically provided for — the re- » Bruce, Insts., 295-300 ; Adams. Eoman Ant, 330 ; De Chenier, Guide des Tribunaux Mllitalres, Introd. ; Von Molitor, Kriegsgerichte und Mllitarstrafen, 11. ' See VoD Molitor, ante; Ayala, de Judiciis Militaribus ; Le Faure, Lois Militaires de la France ; De Cbenier, ante; Brnce, 300. ■ Le Faure, p. 141. And see Foucher, Code de la Justice Militaire, p. 3. 45 46 MILITAEY LAW ASV PKECEDENTS. markable "spear" court, (In which the assembled regiment passed judgment upon its offenders,) being especially characterized — in the penal code of Charles v., though more accurately defined in the articles of Maximilian II., of 1570.* Meanwhile, however, the Anglo-Norman system of administration of justice, in which the courts were open, the prosecution was public and verbal, the accused was tried by a jury of his peers of military associates upon specific charges and was permitted to be heard in his defence, and the proof was made by the exam- ination of witnesses — in contradistinction to the inquisitorial method which was subsequent!/ adopted — ^had extended t» England, Bweden and Btiseia, and pre- vailed generally throughout Europe.' The courts established by the codes and articles, (heretofore specified,') of the sixteenth and seventeenth centuries' were courts of this system, and to such courts the present British and American court-martial Is more nearly assimilated in its procedure than to the now-exist- ing military court of Germany or France. 49 BRITISH COTTB-TS-MABTIAIi.— The Court of Chivalry. In the English law, the original of the modem court-martial is discovered In the " King's Court of Chivalry," or " Court of the High Constable and Marshal of England " — sometimes also designated as the " Court of Arms " or " Court of Honour" — of which the judges were the Lord High Constable and Earl MarshaL These officials, who date from the times of the Franklsh — Carlovingian — Kings, are said to have formed a part of the Aula Regis of William the Conqueror, but It was, apparently, not till the subdivision of that tribunal Into separate courts by Edward I, In the latter part of the 13th century, that the Court of Chivalry began to have a distinct existence. Thus instituted, It came to exercise an extended jurisdiction, both civil and criminal ; taking cognizance not only of " all matters touching Itonor and arms," " pleas of life and member arising in matters of arms and deeds of war," " the rights of prisoners taken in war," and, generally, of " the offences and mis- carriages of soldiers contrary to the laws and rules of the army," but also of civil crimes and matters of contract.' Having thus Indeed gradually en- croached upon the other courts of common law, the Court of Chivalry was subsequently, by acts of parliament, restrained and curtailed of much of its power; and, the office of High Constable having, as a permanent judicial function, been discontinued, upon the attainder of the then Constable, in the 13th year of Henry VIII, this tribunal, though at first held at intervals by the Marshal alone, fell into disuse. From a case adjudged in the Court of Queen's Bench so recently as in the 1st year of Anne,' it is seen that the Court of Chivalry, as held by the Marshal, still survived with a doubtful and trifling jurisdiction apparently rarely exercised. But though never abolished by spe- cific statute, it had, some time before the English Kevolution, practically ceased to exist as a military tribunal." 50 Later history. Upon its decadence, and during the interval preceding the first Mutiny Act, justice was administered, in the military forces * Eoppmann, MllitSrstrafgesetzbuch ; Von Molitor, ante. » Von Molitor, Sec. 1 § 8. •See Chapter II. ' See especially the Articles of Gustavus Adolphus, in Appendix. »A corresponding jurisdiction was exercised in naval cases by the Lord High Ad- miral. Thring, 5 ; Clode, M. L., 41. » Chambers ■». Sir John Jennings, 7 Mod., 127, and 2 Salk., 553. M Upon the history of the Court of Chivalry, see Coke, 4 Inst., 123 ; Hale. Hist. Com. Law, 42; Hawk, P. C, b. 2, c. 4; 3 Black. Com., 68; 4 Stephen, Com., 329; Beyer, Com. Const. Law, 281 ; 2 Grose, Hist. Eng. Army, 58-60 ; Tytler, 38-42, 46, 377-392 ; Adye, 1-12 ; 2 McArthur, 15-20 ; Plpon & Col., 7-9 ; Clode, M. L., 83, 158 ; Id., 1 M. F.i 76, 473 ; Pratt, 6 ; Lieber, Observations on origin of military trials, &c., N. York, 1876 • Chambers v. Jennings, ante; Ex-parte Reed, 100 U. S., 20. ' ' MILITARY LAW AND PRECEDENTS. 47 from time to time raised, mostly by martial courts or councils held under the ordinances or articles heretofore noticed," or assembled by special commission issued under the royal prerogative, or what was arbitrarily assumed to be such." During the reigns especially of the Tudors and Stuarts, and prior to the Petition of Right, military law, as administered, more nearly resembled the martial law ttian the military law of modern times; trials of civilians by courts-martial, and the imposition by the same of the death penalty, being sanctioned in cases in which the law of the land did not authorize such jurisdiction or punishment." It was such arbitrary exercise of military authority which was doubtless had in view by Hale" and Blackstone" In their apparent confounding of military with martial law, to the disparagement of the former. At length, by the original Mutiny Act of 1689, already described, the Infliction of the death penalty within the Kingdom was prohibited except upon conviction of mutiny, sedition, or desertion, and the Sovereign, (for the first time by legis- lative authority,) was expressly empowered to grant commissions to convene courts-martial, whose jurisdiction and powers, extended and developed in sub- sequent Mutiny Acts and Articles of War, have finally — as has been seen in Chapter II — ^been established and defined in the Army Act of 1881. These pow- ers, as compared with those of our own military courts, vrtll be frequently re- ferred to In the course of this treatise. THE AMERICAN COXTIIT-MAIITIAL. The English military tribu- 51 nal, transplanted to this country prior to our Revolution, was recognized and adopted by the Continental Congress, in the first American Articles of war of 1775, where the different courts-martial — General, Regimental, and detachment or Garrison courts — were distinguished, and their composition and jurisdiction defined. These provisions were modified and enlarged in the suc- ceeding Articles of 1776 and 1786, and in the latter the authority to order gen- eral courts was more precisely indicated. Coming to the period of the Con- stitution — that Instrument, while expressly empowering Congress to provide for the government of the army, and thus to institute courts-martial," also recognized — in the Vth Ame^idment — the distinction between civil ofEences and those cognizable by a military forum." But, in legislating in view of these provisions. Congress did not originally create the court-martial, but, by the operation of the Act of September 29, 1789," continued It in existence as pre- viously established. Thus, as already Indicated, this court is perceived to be " Sec Chapter II. »s Grant v. Gould, 2 H. Black., 69, 84 ; Tytler, 48-58 ; Adye, 13-15 ; 2 McArthur, 20 ; Kennedy, 1 ; Plpon & Col., 9-12, 17-18 ; Pratt, 7. " 1 Black. Com., 414 ; Hallam, Const. Hist., vol. 1, pp. 325-330, 531 ; Manual, 7-8, cited In Oil. II, p. 8, note. Col. Woodward's Essay on Mil. & Mar. Law, United Service Mag., Oct., 1879. " Hist., Com. Law, c. 2. " " Martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something Indulged rather than allowed as a law. The necessity of order and discipline in an army is the only thing wUch can give it countenance." 1 Black. Com., 413. And see 8 Opins. At. Gen., 365-6 ; also Part II. — Martial Law. " See Dynes v. Hoover, 20 Howard, 79 ; Em paHe Reed, 100 U. S., 21 ; Ex parte Big- gers, 1 McM., 69 ; 5 Opins. At. Gen., 508. "BiT parte Mason, 105 U. S., 700; Ex parte MilUgan, 4 Wallace, 123, 137, 138; In re Bogart, 2 Sawyer, 396 ; Trask v. Payne, 43 Barb., 569 ; In matter of Martin, 45 Id., 142 ; People V. Daniell, 6 Lansing, 49 ; Rawson v. Brown, 18 Maine, 216 ; Rawle, Const., 220 ; Whiting, War Powers, 553 ; 6 Opins. At. Gen., 425 ; 17 Id., 297. '" Providing that the Anny should continue to be governed by the existing articles of war. 48 WTT.T TARY LAW AND PEECEDBNTS. in fact older than the Gonstltution,"" and therefore older than any court of the United States instituted or authorized by that instrument. The revised code of Articles of war soon after enacted, viz., by the Act of April 10, 1806, repeated the provisions of 1786 in regard to courts-martial, with some slight modifications consisting mainly in extending the authority to con- vene general courts and in substituting the President for Congress in the cases in which the latter had previously been vested with final revisory authority. These earlier codes, as also the later Articles, have been considered in Chap- ter II., and are set forth in the Appendix. Between 1806 and 1874, a fourth court-martial — ^the Field-Offloer's Count, authorized however only In time of war — ^was added to those previously estab- lished ; the authority to order general courts was still further extended, 52 and their jurisdiction and powers were enlarged. The legislation by which these changes were introduced has been heretofore indicated as embraced In the code of Articles contained in the Revised Statutes of June 22, 1874. The subsequent amendments to these Articles and other enactments afEectlng the same — including that of October 1, 1890, adding the Summary Court to the list of military tribunals— have already been specified. The Articles of 1874, with these later provisions, comprise the existing statute law in regard to the consti- tution, composition, jurisdiction, powers and procedure of American c?tirts- martial. The regulations and usages relating to their forms and practice have been referred to in previous Cliapters. THE NATXTKE OF THE COURT-MARTIAl. AS A LEGAL TRIBtJN'AL. ITS ATTTHOBIZATIOIT IIT THE CONSTITUTIOir. By Art. 1, sec. 8, of the Constitution, Congress, as we have seen, is invested with the power to govern the army, as well as the militia when employed in the public service, and is further authorized to make all laws which may be necessary and proper to carry such powers into execution. Under these powers Congress has from time to time enacted articles of war and other laws specifically providing for the institution of courts-martial. The 5th Amendment of the Constitution, heretofore cited, which in effect provides that persons charged with crimes shall be proceeded against by indict- ment, &c., except in military or naval cases, has also sometimes been viewed as a source of authority for courts-martiaL Thus Attorney General Gushing" observes of it that it " expressly excepts the trial of cases arising in the land or naval service from the ordinary provisions of law." And In the case, ad- judged in New York, of Trask v. Payne," the court say : " This provision prac- tically withdraws the entire category of military offences from the cognizance of the civil magistrate and turns over the whole subject to be dealt with by the military tribunals." In the view of the author, the Amendment, in the particular indicated, is rather a declaratory recognition and sanction 53 of an existing military jurisdiction than an original provision initiating such a jurisdiction." ^' See Rawson v. Brown and People v. Daniell, aibove cited. "■e Opins., 425. «43 Barb., 569. And see Em parte Mason, 105 V. S., 700; Runkle v. V. S., 19 Ct. CI., 397, 410; In re Esmond, 5 Mackay, 73-4. " In Runkle v. U. S., 19- Ct. CI., 410, the court say of this Amendment that It is— ■• an express constitutional affirmation and preservation of the unlimited right of ad- ministration of military justice through military channels without the agency of grand jurors." And compare, as to a similar {.revision of the State Constitution, People «. Daniell, 50 N. T., 275. MILITAEY liAW AND PEBCEDENTS. 49 A further authority for the ordering of courts-martial has been held to be attached to the constitutional function of the President as Commander-in- chief , independently of legislation — as will be pointed out in the next Chapter. NOT A PART OF THE JXTDICIAHY BUT AN AaENCY OF THE EXEC- TjiriVE DEPARTMENT. Courts-martial of the United States, although their legal sanction is no less than that of the federal courts, being equally with these authorized by the Constitution, are, unlike these, not a portion of the Judiciary of the United States, and are thus not included among the " in- ferior " courts which Congress " may from time to time ordain and establish." In the leading case on this subject, Oie Supreme Court, referring to the pro- visions of the Constitution authorizing Congress to provide for the government of the army, excepting military offences from the civil jurisdiction, and mak- ing the President commander-in-chief, observes as follows : — " These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practised by civilized nations, and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed that the two powers are entirely independent of each other."" Not belonging to the judicial branch of the Government, it follows that courts-martial must pertain to the executive department; and they are 54 in fact simply instrumentalities of the executive power, provided by Con- gress for the President as Commander-in-chief, to aid him in properly commanding the army and navy and enforcing discipline therein," and utilized under his orders or those of his authorized military representatives. Thus indeed, strictly, a court-martial is not a court in the full sense of the term, or as the same is understood in the civil phraseology. It has no common- law powers whatever, but only such powers as are vested in it by express statute^ or may be derived from military usage. None of the statutes governing the jurisdiction or procedure of the " courts of the United States " have any appli- cation to it ;" nor is it embraced in the provisions of the Vlth Amendment to the Constitution." It is Indeed a creature of orders, and except in so far as an independent discretion may be given it by statute, it is as much subject to the orders of a competent superior as is any military body or person. A TEMPOBART SUIOIART TRIBUNAL— NOT A COURT OF RECORD. As a purely executive agency designed for military uses, called into existence by a military order and by a similar order dissolved when its purpose is accom- » Dynes v. Hoover, 20 Howard, 79. And see Ex parte Bright, 1 Utah, 154 ; Fugitive Slave Law Cases, 1 Blatchford, 635; People v. Daniell, 6 Lans., 44, 50 N. Y., 274; 1 Kent, Com., 341, note; also Ex parte Vallandigham, 1 Wallace, 253, where It Is re- marked by the court that the authority exercisable by a rmlitary commission, though "It Involves discretion to examine, to decide and sentence," is not "judicial in the sense in which Judicial power Is granted to the coarts of the United States." Com- pare Contested Election of Brig. Genl., 1 Strob., 198, cited post. «Clode 2 M P., 361, says of these courts In the British law: — "It must never be lost sight' of that the only legitimate object of military tribunals Is to aid the Crown to maintain the discipline and government of the Army." And see Id., M. L., 91 ; Pren- dergast, 148. »Thus it has been held that Sec. 848, R. S., (relating to witness fees,) and Sees. 866-870, B. S., (relating to depositions, &c.,) in the federal courts had no application to courts-martial. Digest, 107, 760. "That Is to say, the term — ''criminal prosecutions" does not include proceedings before courts-martial. 440593 O - 42 - 4 50 MILITAEY LAW AND PKECEDENTS. piished," the court-martial, as compared with the civil tribunals, is transient in its duration and summary in its action.'" It is not, In a legal sense, 55 a " court of record," " and, unlike tlie superior courts of record, has no fixed place of session, no permanent office or clerk, no seal, no inherent authority to punish for contempt, no power to issue a writ or judicial mandate, and its judgment is simply a recommendation, not operative till approved by a revisory commander. It thus belongs to the class of minor courts of special and limited jurisdiction and scope, whose competency cannot be stretched by Implication, in favor of whose acts po intendment can be made where their legality does not clearly appear, and which cannot transcend their authority without rendering their members trespassers and amenable to civil action.* But their proceedings, where no illegality is exhibited upon their face, will in general be presumed to be regular and valid. NOT SUBJECT TO JXTDICIAIi BEVISION. Further, the court-martial being no part of the Judiciary of the nation, and no statute having placed it in legal relations therewith, its proceedings are not subject to be directly re- viewed by any federal court, either by certiorari, writ of error, or otherwise, nor are Its judgments or sentences subject to be appealed from to such tribunal. It is not only the highest but the only court by which a case of a military offence can be heard and determined; and a civil or criminal court of the United States has no more appellate jurisdiction over ofEences tried by a court-martial — no more authority to entertain a rehearing of a case tried by it, or to affirm or set aside its finding or sentence as sueh — ^than has a court of a foreign nation. In Dynes v. Hoover," above cited, this principle is well illustrated by the Court In the declaration that a duly-confirmed sentence of a court-martial "is altogether beyond the jurisdiction or inquiry of any 56 civil tribunal whatever;" and further that with the legal sentences of competent courts-martial " civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise " — it is added — " the civil courts would virtually administer the rules and articles of war irrespective of those to whom that duty and obligation has been confided by the laws of the United States, from whose decisions no appeal or jurisdiction of any kind has been given to the civil magistrate or civil courts." This ruling has been abundantly affirmed and illustrated in later cases.°^ In the recent case of Wales v. Whitney," a proceeding instituted against the Secretary of the Navy for the discharge on habeas corpus of an officer of the "Mills V. Martin, 19 Johns., 33; Brooks v. Adams, 11 Pick., 442; Brooks ■». Daniels, 22 Pick., 501 ; In the Matter of Wright, 34 How. Pr., 211 ; 3 Greenl. Ev., § 470. " Tlvese courts are not permanent, but created pro hao vice, i. e. for the trial of the particular offender." Clode, M. L., 58. ^ " The discipline necessary to the eflciency of the army and navy required other and swifter modes of trial than are furnished hy the common-law courts." Ex parte Milligan, 4 Wallace, 123. In Coleman v. Tennessee, 97 U. S., 513, the Court refer to the " swift and summary Justice of a military court." Compare th? more permanent " Military Courts " established by Act of the Confed- erate States Congress, of Oct. 9, 1862, as given with amendments. In Appendix, XV. " Chambers v. Jennings, 7 Mod., 125 ; Ex parte Watklns, 3 Peters, 209 ; Wilson ». John, 2 Binn., 215. The view expressed by Thring, (Criminal Law of the Navy, 103,) that a court-martial Is a court of record and invested with the same power to punish for contempt as any common-law court, if applicable — which is questioned — to English naval courts martial, is certainly not law as applied to our courts-martial as governed by Art. 86. »> Eunkle v. D. S., 122 U. S., 556 ; 19 Opins. At. Gen., 503. Upon the subject of the amenability of members of courts-martial to civil suit or prosecution see Part III a 20 Howard, 81, 82. = 114 U. S., ,')64. » " The Judiciary Act of 1789 gave the federal judiciary no such control, and none has been given since." WooUey's Case, Am. S. E., M. A., v. IV, p. 853. And see MILITARY LAW AND PBECEDENTS. 51 navy, the Supreme Court of the United States, in holding that no federal tribunal "has any appellate jurisdiction over the naval court-martial nor over offences which such a court has power to try," adds that no such 57 tribunal " is authorized to interfere with " a court martial " in the per- formance of its duty by way of a writ of prohibition" or any order of that nature." This ruling was presently affirmed in the case of Smith v. Whitney," where ' a petition for a writ of prohibition^ to the Secretary of the Navy and to a naval general court martial, to prohibit such court from trying a naval officer, was specifically refused by the same court. More recently the same writ has been refused in an army case by a TJ. S. Circuit court." In a still more recent instance, (Johnson v. Sayre, April, 1895,)" the Supreme Court, in denying relief to a naval paymaster's clerk, convicted of embezzlement by a naval court- martial, declares, generally — "The court-martial having jurisdiction of the person and offence," and "having acted within scope of its legal powers, its decision and sentence cannot be reviewed or set aside by the civil courts by writ of habeas corpus or otherwise." Prohibition and Certiorari in England. In England, indeed, where all courts derive their original authority from the Sovereign as the " fountain of justice," " and a relation, unknown to our law, exists between civil and military tribunals, a power to review the proceedings and sentences of courts-martial appears to have been at one time specifically recognized by the Mutiny Act as possessed by the superior courts of common law." No such provision, however, was contained in the later Acts, and none such is to be found in the present statute law. But, independently of statute, it has been held that writs of prohibition and of certiorari may legally issue out of the High Court of Justice to courts-martial ; prohibition, to forbid the court to proceed on the ground that it is without authority or jurisdiction; and certiorari, to require it to certify Porret's Case, Perry's Oriental Cases, 419 ; Ea> parte Vallandlgham, 1 Wallace, 243 ; Bar parte Milllgan, 4 Do., 123 ; In re Grimley, 137 D. S., 147 ; Bsc parte Eeed, 100 U. S.. 13, 23 ; In re White, 17 Fed., 724-5 ; In re Davison, 21 Fed., 618 ; In re Zimmerman, 30 Fed., 176 ; In re Spencer, 40 Fed., 149 ; Swaim v. V S., 28 Ct. CI., 173 ; In re Bsmond, 5 Mackey, 64 ; Moore v. Houston, 3 S. & R., 197 ; State v. Davis, 1 Soutli., 811 ; Ea parte Dunbar, 14 Mass., 393 ; Tyler v. Pomeroy, 8 Allen, 484 ; State v. Stevens, 2 Mc- Cord, 38 ; Bx parte Bright, 1 Utah, 148, 153 ; Whiting, War Powers, 278 ; Cooley, Prins. ■ Const. Law, 113 ; 12 Opins. At. Gen., 332 ; Maltby, 151 ; also Wales v. Whitney and Smith V. Whitney, cited poeft In a few of the States the proceedings of militia courts-martial have been held to be subject, under the local law, to review by the civil courts of appeal. State f . Davis ; Washburn v. Phillips, 2 Met., 296. But In the case of the Contested Election of Brig. Gen., 1 Strob., 198, the incongruity of a review of the proceedings of a court-martial by means of a writ of certioran issued by a civil court is well illustrated as follows. After remarking that certiorari only lies to remove judicial acts, the court holds : — " The proceedings and sentences of courts military can hardly be considered judicial acts. • • • The very fact that the sentence of the court is not known until ap- proved, then that the court Is dissolved, and that the whole proceedings are in the Xmssession of the officer ordering the court, show that the writ of certiorari cannot be awarded. For there is no one to whom it can go, and who can, as of and for the court, certify the proceedings. But that the Court of Sessions," (the civil court applied to for the writ,) " has no right to pronounce a miUtarv judgment upon the proceedings being up, is conclusive against the writ." But see the late case of Ex parte Thomp- son, 2 Quebec L. B., 115. " 116 D. S., 168. The writ had been first refused in this case by the Supreme Court of the District of Columbia. See 4 Mackey, 535. '"A writ of prohibition is a means resorted to to prevent the doing of an act not yet performed or completed. TJ. S. v. Hoffman, 4 Wallace, 158. 3«U. S. V. Maney, U. S. C. C, 61 Fed., 140. (May, 1894.) "158 U. S., 109. » 1 Black. Com., 266 ; 2 Stephen, Com., 538 ; Broom, Const. Law, 145. " Tytler, 167 ; 1 Oplns. At. Gen., 236. 52 MILITAEY lAW AKD PRECEDENTS. Tip ttie record with a view to the quashing of conviction or sentence if 68 found Ulegal." It was also held, however, that the former writ would not be granted on account merely of irregularities or informalities in the pro- ceedings of the court-martial, or of an erroneous decision on the merits," or after the sentence had been executed, or because the sentence was excessive ;" and that certiorari was a proper remedy only where the rights of the party af- fected by the judgment of the court-martial were civil rights, and the court had acted without jurisdiction, — that the writ would not issue where the rights affected were of a military character, i. e., such as are attached to military rank or status." And it is a noticeable fact that the British courts have never granted either of these writs in a case tried or on trial by court-martial. No appeal, as such, to Congress. It may be remarked here that while Congress is of course empowered to legislate at discretion for the relief of any person deemed to have suffered unjustly or too much from the sentence of a court-martial, it can have no authority whatever to entertain an appeal as such from the judgment of such a court, or to set aside or revise its proceedings. The point would scarcely be noticed except for the reason that it has been, in early cases, the subject of rulings in Congress itself. Thus in the Report of the Com- mittee on Military Affairs of the House of Representatives, in 1826, in the case of Col. T. Chambers, 1st artillery," it was said that the Committee " disclaimed any idea of countenancing or entertaining an appeal from the decision of mil- itary courts to this House — a practice which would be subversive of discipline and highly Injurious to the service." In the later case of Lt. Col. Woolley, in 1832," the same Committee observes in its report — " Congress are not authorized to revise or to reverse the judgment of any tribunal, civil or military." Cognizance collaterally, on Habeas Corpus. While courts-martial, 59 not being " inferior courts " to the Supreme Court under the Constitution, cannot be appealed from to any civil court, or controlled or directed by the decree or mandate of such a court, yet in our U. S. Courts, similarly as in the English tribunals, the writ of habeas corpus may be availed of by a prisoner claiming to be illegally detained under trial or sentence of court-martial, and in this proceeding the legality of the action of the court — as whether it was legally constituted, or had jurisdiction, or its sentence was authorized by the code — may be inquired into." But the action must have been absolutely illegal and void in law to induce the federal court " to grant relief," for a civil tribunal will not go into the merits of, or try, a military cause." "Uanual, 151, 153 ; Grant v. Gould, 2 H. Black., 69 ; In re Mansergh, 1 Best & Smith, 400 Clode, M. L., 158. " Grant V. Gould, ante. *^In re Poe, 5 Barn. & AdoL, 681; Prendergast, 202. In the more recent (Irish) case of Sergt. McCarthy, 14 W. R., 918, It was held that " a prohibition will not issue merely because the evidence given In support of a. military charge discloses a higher civil offence." *• In re Mansergh, ante; Capt. Roberts' Case, Manual, 154. "Am. S. R., M. A., vol. Ill, p. 327. «Am. S. R., M. A., vol. IV, p. 853. "/n. re Grimley, 137 U S., 150. " It need hardly be observed that a Btate court could have no jurisdiction in such a class of cases. See Pabt III. « In Ex parte Mason, 105 U. S., 697, the Supreme Court, in holding that it " has no power to review the judgments of courts-martial," adds that it cannot, upon hateas corpus, discharge a person under sontence of court-martial, " if the court had Jurisdic- tion to try the offender for the offence with which he was charged, and the sentence was one which the court could, under the law, pronounce." In Ex parte Reed, 100 U. S. 23 the same court well say : — " A writ of habeas corpus cannot be made to perform the functions of a writ of error. To warrant the discharge of the petitioner, the sentence under which he is held must be not merely erroneous and voidable but absolutely void." And see Ex parte Parks, 93 0. S., 18 ; Barrett v. Hopkins, 2 McCrary, 129 ; King v. MILITARY LAW AND PEECEDENTS. 53 So, In a case before the Court of Claims," or an ordinary civil court, where the right to recover pay, &c., depends upon the legality of the proceedings of a court-martial, the question whether the court has transcended its authority may be passed upon. So, such question may be tried in an action for damages for false imprisonment under sentence." But these collateral methods of 60 reviewing the action of military courts have not been frequent in practice, since it is well established that the civil judicature will not interfere in any case in which the court, however irregular may have been its proceedings, has acted or is acting within its legal jurisdiction and powers." It may be noted that the law is similarly held by the authorities in the kindred class of cases In which the petitioner for the writ of habeas corpus has not yet been tried or arraigned but is detained in military custody with a View to trial. If the person and the offence are within the jurisdiction of the proposed court-martial, the civil federal court will not enter into the merits of the charge, but will leave the same to be tried by the .military tribunal and remand the prisoner." Here errors of procedure not revisable on habeas corpus. That mere errors of procedure, not affecting the jurisdiction, or authority to sentence, of the court, are not to be regarded by a United States civil court, in its col- lateral inquiry, has been frequently noticed by the authorities. Thus, in In re Grlmley, the Supreme Court say — " It is clear that by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial, and that no mere errors in their proceedings are open to consid- eration." ** The only real appeal. In the British practice substantially the only court of appeal from the judgments of courts-martial may be said to be the Judge Advocate General, a civil official and member of the Government representing the Sovereign in the administration of military justice.'* So, with us, 61 an^Accused has always, .an appeal, from a conviction and sentence .by court-martial^'to^ the President, (or Secretary^ of War,) who, in enter- jtainlng ajQd' determining such appeal, is assisted and advised by the Judge Ad3tocate_General of the Army." Thus, as the tribunal is an executive agency, the appeal therefrom is to a superior-eiiStiiie-authority! Suddis, 1 Bast, 306. In Wales v. Whitney, 114 U. S., 575, it is remarked that, even where the court-martial had In fact no jurisdiction, the power of the civil tribunal, on habeeta corpus, " extends no farther than to release the prisoner. It cannot remit a fine, or restore to an office, or reverse the judgment of the military court." But it is further held in this case that an officer merely in arrest at large, i. e., under an arrest confining him to the limits of the City of Washington, was not under such physical re- straint as to be a subject of discharge on habeas corpus. » In the matter of Corbett, 9 Benedict, 277. " See Keyes v. V. S., 15 Ct. CI., 553, and 109 U. S., 336 ; Wales v. Whitney, 114 U. S., 575 ; Swaim v. V. S., 28 Ct. CI., 217. " See PiET III ; also Wales v. Whitney, ante. " Barrett v. Crane, 16 Vt., 246 ; Brown v. Wadswortb, 15 Id., 170 ; Keyes v. V. S., 109 U. S., 336 ; Barrett v. Hopkins, 7 Fed., 312 ; In re Davison, 21 Fed., 618. " The single inquiry, the test, is jurisdiction." In re Grimley, 137 U. S., 150. "In re Bogart, 2 Sawyer, 396; In re White, 9 Id., 49; In re McVey, 23 Fed., 878. » 137 U. S., 150. And see Smith v. Whitney, 116 U. S., 168 ; D. S. v. Fletcher, 148 V. S., 92 ; In re White, 17 Fed., 725 ; In re Davison, 21 Fed., 621 ; In re McVey, 23 Fed., 879 ; Swalm v. U. S., 28 Ct, CI., 217. And see Grant v. Gould, 2 H. Bl., 107. K " The Judge Advocate General's Department forms a Court of Appeal, and there- fore takes no part In the actual preparation, conduct, or management of prosecutions." Jones, (1881,) p. 63. " The Judge Advocate General and his Deputy form a sort of tmal court, which has the power of upsetting, or ' quashing,' all court-martial pro- ceedings." Gorham, (1880,) p. 37^. " Congress, " in addition to courts for trial, has provided a separate and complete line of reviewing authorities, terminating in the Executive." In re Esmond, 5 Mackey, 74 [That the Judge Advocate General, under the authority vested in him by Sec. 1199, 54 MILITAEY LAW AND PKECEDENTS. CONCLTTSIVEITESS OF JUDGMENTS OE COTTBT-MAIITIAI-. Not being subject to be reversed or appealed from, tbe judgment of a court-martial of the United States is, within its scope, absolutely final and conclusive." Its sentence, if per se legal, cannot, after it has received the necessary official approval, be revoked or set aside ; and it is only by the exercise of the pardon- ing power that it can — ^provided it be not as yet executed — ^be rendered in whole or in part inoperative." A COURT OF XAW AND JUSTICE. Notwithstanding that the court-mar- tial is only an instrumentality of the executive power having no relation or connection, in law, with the judicial establishments of the country, it is yet, so far as it is a court at all, and within its field of action, as fully a court of law and justice as Is any civil tribunal. As a court of law, it is bound, like 62 any court, by the fundamental principles of law, and, in the absence of special provision on the subject in the military code, it observes in general the rules of evidence as adopted in the common-law courts." As a court of justice, it is required, by the terms of its statutory oath, (Art. 84,) to adjudicate between the United States and the accused "without partiality, favor, or af- fection," and according, not only to the laws and customs of the service, but to its " conscience," i. e., its sense of substantial right and justice unaffected by technicalities. In the words of the Attorney General, courts-martial are thus, " in the strictest sense courts of justice." " A COURT OF HONOR. A ydourt-martial has been called a " court of honor," and this designation, though less employed than -formerly, is still applicable to it, for the reason that it punishes dishonorable conduct where the same affects the reputation or discipline of the army." It may try an officer for not being also a gentleman — a dereliction ijot cognizable by any other species of tribunal. But though in this a court of hopor, it is at the same time a court of law, since it proceeds against such conduit as an offence to be charged and proved according to the rules of criminal pleading and evidence. AS ASSIMILATED TO A CIVIL JUDGE AND JURY. As illustrating the function of a court-martial to administer law and justice, it may be noted that this court, though an " exceptional forum," " is not without close analogies in its personnel to the ordinary civil tribunals. Thus it has frequently been compared, as to some of its powers and proceedings, to a judge, and as to others E. S., to receive, revise," &e., the proceedings of courts-martial has of course no power to reverse a finding and sentence, was ruled in Mason's Case, U. S. Clrc. Ct., No. Dist. N. T., October, 1882.] =' " Within the sphere of their jurisdiction the judgments and sentences of courts- martial are as final and conclusive as those of civil tribunals ^fjast resort." Hoff- man, J., in In re McVey, 23 Fed., 878. And see 11 Opins. At. (Jen., 139 ; 17 Id., 297 ; 18 Id., 21 ; Ex parte Reed, 100 U. S., 13 ; In re Esmond, 5 Mackey, 64 ; In re Davison, 21 Fed., 620 ; Warden v. Bailey, 4 Taunt., 76 ; Frear v. Marshall, 4 F. & F., 485 ; Dynes v. Hoover, 20 Howard, 83 ; Em parte Reed, 10 Otto, 13 ; In re Bogart, 2 Sawyer, 396 ; Moore v. Houston, 3 S. & R., 197 ; Brown v. Wadsworth, 16 Vt., 170 ; People v. Van Allen, 55 N. T., 36 ; State v. Stevens, 2 McCord, 38 ; Ex parte Bright, 1 Utah, 145 ; Ferret's Case, Perry, 419. "Digest, 551, 552, 557, 701. And see under Ninety Ninth Article, in Chapter XXV. ra See Chapter XVIII — Bvidence. ■"11 Opins., l.'JS. «i " In military life there is a higher code termed honor which holds its society to stricter accountability ; and it is not desirable that the standard of the Army shall come down to the requirements of a criminal code." Nott, J., in Fletcher i; II S 2fi ft. CI., 563. " «2 6 Opins. At. Gen., 204. MrLITABY LAW AND PEBCEDENTS. 55 to a jury." Indeed, in its taking of a Statutory oath, its being subject 63 to challenge, its hearings and weighing of evidence, its finding of guilt or innocence, and its liability to be reassembled to reconsider its verdict. It nearly resembles a traverse jury in a criminal court. On the other hand, in its arraignment of the accused, its entertaining of special pleas to its jurisdiction or competency as a court and objections to the sufiiciency of the pleadings and the admission of testimony. Its authority to grant continuances and to adjourn, and its power to impose sentence, it is more closely assimilated to the judge. The further comparison by Atty. Gen. Gushing" of a court-martial to a " grand jury," in that its members are " changeable in numbers and personality within certain limits," is a much less obvious analogy. A CRIMINAL COTIIIT. In regard to the class of courts to which it be- longs, it is lastly to be noted that the court-martial is strictly a criminal court." It has in fact no civil jurisdiction whatever; cannot enforce a con- tract, collect a debt, or award damages in favor of an individual. All fines and forfeitures which It decrees accrue to the United -States. Even where it tries and convicts an accused for an offence involved in an obligation incurred or injury done to another person, whether a military person or a civilian — as in the case of an officer guilty of dishonorable conduct in the non-payment of private debts, or in that of a soldier who has stolen from a comrade or tres- passed upon a citizen — it cannot adjudge that the debt be paid, that the prop- erty be returned, or that its pecuniary value or the amount of the damage, be made good to the party aggrieved. Its judgment is a criminal sentence, not a civil verdict: its proper function is to award punishment upon the ascertain- ment of guilt." The nature and characteristics of the Court-Martial will be abundantly illus- trated as we proceed with the details of Its powers and practice. THE DIFFERENT KINDS OF COURTS-MABTIAL. As has already been perceived, there are now, in our military law, five species of courts- 64 martial, to wit — 1. A superior or highest court Imown as the General Court-Martial ; 2. The Regimental Court-Martial ; 3. The Garrison Court-Martial; 4. The Field Officer's Court; 5. The Summary Court. The first three have been specifically authorized in our Articles of War from the beginning. The fourth, a court for time of war only, was established by an enactment of July 17, 1862, incorporated in the Code of Articles of 1874. The last Is a court authorized for time of peace by an Act of October 1, 1890. The four courts last-named, which may be designated as the Inferior courts-martial, will be treated of in a separate Chapter.". « Sullivan, 17 ; Adye, 167 ; Tytler, 221 ; 1 McArtliur, 274 ; Delafons, 121 ; Hough, 944 ; Simmons, § 637; Griffiths, 168; Harcourt, 128: McNaghten, 117, 122, 124, 127; Bombay E., 30 ; Macomb, 31 ; 3 Opins. At. Gen., 398 ; 5 Id., 707 ; 6 Id., 206 ; 7 Id., 340 ; 10 Id., 65. " The verdict of a Jury bears a close analogy to the judgment of a court-martial." 19 Id., 107. "7 Opins., 340. " Digest, 321—2 ; U. S. v. Clarke, 96 U. S., 40 ; " The crimes or misdemeanors for- bidden by the Articles of War are ofEenses against the United States." 19 Opins. At. Gen., 106. "«> Digest, 322; 3 Greenl. Ev § 469, 471, 476; Warden v. Bailey, 4 Taunt., 78. " There is no such court recognized in our law or practice as the " Drum Head Court-Martial." With us, summary Justice is done. In i)eace, through the Summary Court; in war, mostly through the Field Officer's Court and the Military Commission. In our Navy the only trial courts are two in number — the General Court-Martial and the Summary Court. The courts-martial of the Militia of the District of Columbia, (whose proceedings are required to conform to those of the courts-martial of the Army,) consist of — (1) General Courts-Martial, ordered by the Brig.-General commanding, and (2) Battalion 56 MILITAEY LAW AND PRECEDENTS. The General Court-Martial, much the most important of our military tri- bunals, will now be considered with respect to its Constitution, its Composi- tion, its Jurisdiction, and its Procedure. Courts-Martial, and (3) Company Courts-Martial, ordered, respectively, by commanders of battalions and companies. [Act of March 1, 1889, c. 328, s. 51-54.] It may be remarked bere that the authority for and legal status of the District militia are not clear. It is no part of the militia referred to in the Constitution, (Art. I., see. 8 §15, 16,) which evidently contemplates a militia of the States. It would appear to have been created as a species of military police. In the exercise of the power of " exclusive legislation " conferred upon Congress by § 17 of the same section, similarly as such a police might perhaps be provided for a Territory under Art. IV., section 3. CHAPTEE VI. THE CONSTITTITION OF GENERAL COUB.TS-MAB.TIAL. 65 The law authorizing and relating to the constituting of General Courts- Martial is contained in the provision of the Constitution making the President the Commander-in-chief of the Army, in the Seventy-Second and Seventy-Third Articles of war, and in Sees. 1230 and 1326 of the Revised Stat- utes. By this law the authority to constitute these courts is vested in — I, The President ; II, Certain military commanders. I. AUTHORITY OF THE PRESIDENT TO CONSTITUTE GENERAL COURTS-MARTIAL. The President is empowered to institute courts-martial — 1st, as Commander- in-chief under the Constitution ; 2d, in the special contingency indicated in the 72d Article; 3d, in the particular cases provided for by Sec. 1230, Rev. Sts. 1. AS COJOrANDEE-IN-CHIEP. The 72d Article of War, (as amended by the Act of July 5, 1884,) which provides for the convening of general courts- martial in the army, is as follows — " Art. 72. Any general officer commanding an army, a Territorial Division, or a Department, or colonel commanding a separate Department, may appoint general courts-martial whenever necessary. But when any such commander is the accuser or prosecutor of any officer under his com- mand the court shall be appointed by the President; and its proceedings and sentence shall be sent directly to the Secretary of War, by whom they shall be laid before the President, for his approval or orders in the case." This Article, (unlike the corresponding article of the naval code,') does not expressly designate the President as one of the officials invested with 66 a general authority to order general courts-martial, but declares that the same may be convened by certain military commanders, except in a certain specified contingency, (hereafter to be defined,) when — ^it Is provided — the court shall be ordered by the President. And it has been argued, on the principle — assumed to be applicable — of expressio unius exclusio alterius, that the President was thus legally empowered to exercise the authority in question only in the cases embraced in the exception. But as the law is now generally held, and in the opinion of the author, the President is invested with a general and discretionary power to order statutory courts-martial for the army, hy virtue of his constitutional capacity as Com- nuinder-in-chief, independently of any article of war or other legislation of Con- gress. In this view the 72d Article is construed simply as an enabling statute, indicating what military commanders " may," for the purpose of discipline, (and to relieve, while representing, the Commander-in-chief,) "appoint"' such courts ; the exception expressed in the second clause being regarded as a recog- '■ See Rev. Sts., See. 1624, Art. 38. ' The amended Article has recurred to the form of expression employed in the code of 1806. The form in the Article of 1874, before the amendment, was — " shall be com- petent to appoint." It may be observed that the antiquated term appoint, still retained in the Article, is not often used In practice ; such equivalent forms as order, convene, assemble, detail and constitute being employed, indifferently, instead. 57 58 MTT.ITABY LAW AND PEECEDENTS. nition of and reference to tlie President, as the source of military command, for the purposes of the exercise by him in person of the authority In a particular class of cases where his subordinate cannot justly or properly act. As if the Article had said that while the commanders designated might convene these courts for their commands in cases in general, yet in the instances specially ex- cepted recurrence must be had to the original power residing in the Commander- in-chief. Original authority of British. Sovereign to convene courts-martial. By the common and statute law of Great Britain down to the period of the first Mutiny Act, the King was vested with the supreme command and government of the army, a function which necessarily included the power to constitute courts-martial.' Nor, in the author's opinion, was this power, exercised 67 from an early period, divested by the Mutiny Act of 1869.* This Act did not assume in terms to authorize the Crown to convene military courts in general, but, in view of the emergency which had induced its enactment, while condemning the exercise of martial law and the arbitrary infliction of the pen- alty of death, it made special provision for the assembling of such courts by "their Majestyes," &c., for the trial, within the Kingdom, and punishment capitally if found necessary, of three offences of particular gravity, which, in time of peace at least, in the absence of such provision, would legally have been punishable, or punishable with death, within the realm, only by the civil courts.' That the Act was not intended to impair, and in fact left intact, the original function of the Sovereign to order courts-martial for the trial of military of- fences, seems to be the soundest conclusion, and such is apparently the conclu- sion of Samuel,' the principal of the earlier, and Clode,' one of the most recent, of the commentators on the Mutiny Act. That this is the proper view is con- firmed by the consideration that in the larger measure of its exercise, vie. in respect to the constituting of courts-martial outside the Kingdom, and for the trial of offences other than mutiny, sedition, and desertion within the 68 Kingdom, this branch of the prerogative remained for a long period acquiesced in and acknowledged by the Legislature." Later Acts which re- cited that it " shall be lawful " for the Sovereign to institute courts-martial generally, should, it is believed, properly be regarded as mainly of a declaratory effect.* • See Samuel, 34, 53, 55, 64, 65, 134. The extent of this power, as understooa at the time, appears from the -well-known statue of 13 & 14 Car., 2, " passed," In the words of an English writer, (Law Mag., vol. XIV., (1835,) p. 4,) " for settling all disputes on this import£int subject," of which the preamble runs as follows : " Forasmuch as within all his majesty's realms and dominions, the sole and supreme power, government, com- mand, and disposition of the militia, and of all the forces both by sea and land, and of all forts and places of strength, is and by the laws of England ever was, the undoubted right of his majesty and his predecessors, kings and queens of England ; and that both, or either, of the houses of parliament cannot and ought not to pretend to the same," &c. This pre- rogative, observes Samuel, (writing in 1816) is " as complete at this day as in precedent times;" and, as Illustrating the same, he declares that — "as connected with the fulness of the kingly authority over the military state, to the Crown it has always belonged to make laws or ordinances for the economy, discipline and government of the army, and to appoint and erect tribunals for the administration^ and enforcement of them throughout the same." (pp. 53, 162.) • See Samuel, 162, 163. ^ See Clode, M. L., 19, 91. • Page 163. 'M. L., 91, 92. On my reading this passage to Mr. Clode in person, he assured me that I had not misapprehended his view. « See Simmons § 2 ; Clode, M. L., 21 ; Samuel, 203. » The provision of the existing British " Army Act," in regard to the authority to convene general courts-martial, viz., •• A general court-martial shall be convened by Her Majesty, or some officer deriving authority immediately or mediately from Her Majesty," certainly seems to be declaratory of a prerogative of the Crown in this particular. MILITARY LAW AND PEECEDENTS. 59 Law and practice as to the exercise of the authority by the President. In this country prior to the adoption of the Constitution, Congress, which exercised the entire power of the government, executive as vcell as legislative, while Itself expressly directing the institution tff military courts in some cases,"" in general devolved the authority for this purpose upon the commander- in-chief of the army and the generals commanding in the separate States." To the latter this authority was expressly delegated by Congress, by resolu- tion of April 14, 1777," but it is noticeable that the authority, as ascribed to and exercised by the commander-in-chief, rested upon no express grant, but was apparently derived mainly by implication from the terms of Washington's commission by which he was vested with " full power and authority to act as he should think fit for the good and welfare of the service," and enjoined to cause " strict discipline and order to be observed in the army." " Con- 69 slderably later. In the Articles of 1786, the authority was in terms vested in " the general or officer commanding the troops." Upon the adoption of the Constitution and the division of the powers of the government, the executive power, previously exercised by Congress, was trans- ferred to the President, and with it the function of commander-in-chief. This function was not defined by the Constitution. To it therefore were properly to be regarded as attached, (with such modifications as the new form of the government required,) the powers originally vested in Congress and delegated by it as above indicated to the commander-in-chief of its army, and which had been exercised by the latter up to this period. Among these powers was the authority, properly incident to chief command, of Issuing to subordinates and the army at large such orders as a due consideration for military discipline might require, and, among these, orders directing officers to assemble and in- vestigate cases of misconduct and recommend punishments therefor — in other words orders constituting courts-martial. The Constitution had Indeed vested in the new Congress the power to legislate for the regulation and government of the army, but this provision could not rightly be regarded as per se mili- tating against the exercise of an authority properly inhering in a function de- volved by the same instrument upon the Executive, and which had been at- tached to that function by the previously-existing law and usage." That the right of the Commander-in-chief to exercise this power was not seri- ously questioned would appear from the practice of the early Presidents by •" See 1 Jour. Cong., 329, 427. In some instances the direction was given to the Board of War or Navy Boards, or the " Secretary at War." 2 Jour., 517 ; 3 Do., 26, 686 ; 4 Do., 44. " 2 Jour., 242, 243, 281, 431 ; 3 Do., 244. " The codes of articles of 1775 and 1776, though conferring, respectively, upon " the general or commander-in-chief " the power to pardon or mitigate punishments, and the power to act upon sentences, omitted to make provision for the convemimg of general courts. " The commission in full, as " alreed to " by Congress, is given In 1 Journals, 85. That the powers here conferred were regarded as including authority to order mili- tary courts is evident from a letter from Washington to MaJ. Gen. Gates, of Feb. 14, 1778, (Sparks' Writings of Washington, vol. 5, p. 236,) in which, in expressing the opinion that the power of appointing such courts was " too limited," he observes — " I do not find it can legally be exercised by any ofBcer except the commander-in-chief or the commanding general In any particular State." The subsequent resolution of Con- gress, of April 10, 1782, 4 Journals, 8,) — "That the Secretary of War shall. In the ab- sence of the commander-in-chief, be empowered to order the holding of general courts- martial In the places where Congress may be assembled " — is a legislative recognition of the existence of the power in the commander. " Among the principal cases in which the courts were ordered by Washington as Commander-in-chief, were those of Gens. Arnold, Lee, Schuyler and St. Clair, Cols. Graham and Zedwltz and Lt. Col. Enos. 60 MILITARY LAW AND PEECEDENTS. whom it was exercised In most Important cases." Subsequent Presidents em- ployed the same authority from time to time, both In peace and in war," 70 and during the late civil war it was repeatedly resorted to and in conspI«- uous Instances." MeanwMle, indeed, the provision of 1830, now Incorporated in the second clause of the 72d Article, had specially devolved it upon the President to appoint the court whenever the military commander, otherwise competent for the pur- pose, should happen to be the " accuser or prosecutor " of the officer to be tried ; but the effect of this, according to recent ruling,"" was " to limit the authority of commanding officers, not to confer power upon the President." And the authority of the President to order such courts, generally and at discretion, as commander-in^hief, continued to be exercised irrespective of such provision. Otherwise indeed it would have resulted that many officers and soldiers, not under the command of a " department " or " army " commander, including gen- eral officers, certain officers of the general staff, cadets of the Military Academy, and sundry enlisted men of the Engineer Battalion, or Ordnance or Signal corps, or acting as clerks in the War Department, would, prior to 1874, (or, in the* case of the cadets, 1873,) have remained exempt from amenability to mili- tary justice, to the serious prejudice of discipline. The enactments of 1873 and 1874, enabling the Superintendent of the Military Academy and the General of the Army to convene general courts, have reduced in number the occasions for the exercise of tliis power by the Commander-in- chief, but the same is still asserted in proper cases and has been resorted to iu recent important instances." The authority in question, however, does not rest wholly upon executive practice and precedent. The legality of its exercise was affirmed by the 71 Military Committee of the House of Representatives in Lt. Col. WooUey's Case in 1832,°° and had also been asserted by Maltby,"" Macomb** and De Hart,^ in their treatises. Later writers on military law have adopted the same view," and the same was also declared by distinguished department and army commanders in Orders, during the late war." Further, in the leading case of Major Runkle, where the point was specifically raised, it was held by Judge Advocate General Holt in 1872 that the convening of the court by the President in his capacity of commander-in-chief was a legal act;" and this ■» As in those of Brig. Gen. Hull and Maj. Gens. Wilkinson and Gaines, tried in 1813- 1816. " As in the cases of Gens. Talcott and Twiggs, Col. Sumner. Lt. Col. Montgomery, and Majors Crittenden and Cross. " As in the cases of Brig. Gens. Hammond, Gordon and Paine. " Swaim v. V. S., 28 Ct. CI., 223. " As in those of Cadet J. C. Whitaker (Dec, 1880 ;) Major J. H. Taylor, (Aug., 1882 ;) Brig. Gen. Swaim and Lieut. Col. Morrow, (June, 1884;) Brig. Gen. Hazen, (March, 1885;) Major G. J. Lydecker, (March, 1889;) Capt. G. A. Armes, (April, 1889;) Lieut. J. A. Swift, (May, 1890;) Capt. A. E. Miltimore and three other officers, (May, 1890;) Colonel C. B. Compton, (June, 1891 ;) Major C. B. Throckmorton, (Nov., 1891 ;) Major L. C. Overman, (Dec, 1891;) Capt. W. S. Johnson, (March, 1893;) Ueut W M Wil- liams, (May, 1893;) Capt. D. F. Stiles, (Oct., 1893;) Ueut: Jas. A. Maney, (May, 1894;) Capt. W. S. Johnson, (Aug., 1894;) Lieut. J. V. S. Paddock, (Jan., 1895) =" Am. State Papers, Mil. Affairs, vol. 4, p. 854. =" Pages, 18, 142, 146, 147. " Edit, of 1809, p. 8 ; edit, of 1841, p. 13. *" Pages 5, 6. =* Copp(5e 11 ; Lee 86-7 ; Ives, 30. « G. C. M. O. 12, Army of the Potomac, 1864, (Gen. Meade ;) G. O 48 Dent of the Cumberland, 1864, (Gen. Thoma.s;) Do. 2T, Dept. of the N. West 1864 '(Gen ' Pone-) Do. 160, Dept. of the Ohio, 1863. (Gen. Bumslde;) Circ, Dept. & Army of the Tenn Jan. 16, 1865, (Gen. Howard.) '' » Digest, 81, 605-6, MILITABY LAW AND PKECEDENTS. 61 opinion, adopted by the Secretary of War at the time, was subsequently sus- tained by the Attorney General " and also by the Judiciary Committee of the Senate In reports of March 3, 1879 and February 18, 1885, and by the Court of Claims in April, 1884." More recently, (February, 1893) the power in question has been again main- talned by the Court of Claims in Gen. Swalm's case," where it is ascribed not only to the fact that the President is Commander-in-chief and so invested therewith ex officio, but also to the fact that a general power given by a statute to a subordinate is given necessarily to the superior, since the greater, in the system of military discipline and authority, must contain the less. Upon the latter point the Court say — " It seem.s evident then to the court that as courts- martial are expressly authorized by law, and the authority to convene 72 them is expressly granted to military officers, this power is necessarily vested In the President by statute, though it may not be inherent in his office. A military officer can not be Invested with greater authority by Con- gress than the Commander-in-chief, and a power of command devolved by statute on an officer of the Army or Navy is necessarily shared by the Presi- dent. * * * It is said that courts-martial are the creatures of statute law. But so also are regiments. There can be no standing army without statutory authority. Congress may place the command of a regiment in a colonel, a lieutenant-colonel, a major, or any other officer, but when Congress so enact they, without words to that effect, likewise place the command in the Com- mander-in-chief. His name Is to be understood as written in every statute which confers upon a military officer military authority." Thus resting upon law, authority and precedent, the power of the President to order general courts-martial may well be regarded as no longer open to serious question." 2. UNDKR THE 72d AItTICI.E OF WAK. In the second clause of this Article it is provided that when a military commander authorized by the first clause to " appoint " a general court-martial, is the " accuser or prosecutor " of an officer of his command proposed to be brought to trial, the court shall be ap- pointed by the President." This provision was introduced into our military law by an Act of May 29, 1880, as an amendment to the 65th article of the then existing code. The amend- ment has been held, as we have seen, to be " plainly restrictive of the preceding legislation," i. e. the article prior to 1830; its effect being not to add to the authority of the President but to detract from that of the commanders 73 designated." Its purpose clearly was to debar a superior from selecting *'15 Opins., 302-3, note. The author's previously prepared MS. on the subject under consideration was furnished to the officer of the Dept. of Justice by whom this note was drawn, =» Runkle ■». tJ. S., 19 Ct. CI., 396. It is significant that the Supreme Court, in their consideration of this case on appeal, (122 V. S., 543,) make no reference to the initial question of the authority of the President to order the court, thus impliedly concurring in the view of the Court of Claims on this point. =•28 Ct. CI., 173, 221, 224. "■The form of its exercise is generally an order Issued by the Commanding General of the Army, " by directum of the President." See the S. O., Headquarters of the Army. Or the order may be issued through the Secretary of War. G. O. 35, War Dept., 1850. =" It may be noted that this provision docs not apply to trials of enlisted men, also that, equally with a similar provision of the succeeding (73d) article, it does not apply to trials by Inferior courts. On principle, however, It should be applied to such courts where it can be done " without serious embarrassment to the service." Digkst, 84. In a case in G. O. 11, Dept. of Texas, 1866, It was applied to a trial by miUtarj/ commis- sion. " Swalm V. V. S., 28 Ct. CI., 223. 62 MILITAEY LAW AND PRECEDENTS. the court for the prosecution and trial of a junior under his command, and, as reviewing authority, passing upon the proceedings of such trial, or ex- ecuting the punishment, if any, awarded him, in a case where, by reason of hav- ing preferred the charge or undertaken personally to pursue it, he might be biased against the accused, if indeed he had not already prejudged his case." The article wholly divests such superior of power to order the court, " nor could such power be imparted to him otherwise than by a special legislative act." Construction of terms " accuser " and " prosecutor." As indicated by the use of the disjunctive " or" these terms are evidently intended to bear a some- what different signification. To distinguish therefore the two designations — " accuser " is construed to mean one who either originates the charge or adopts and becomes responsible for it ; " prosecutor " one who proposes or undertakes to have it tried and proved. It is not essential that the accuser or the prosecutor should be the principal, or what is sometimes termed the " prosecuting " witness, or Indeed that he should be a witness at all. The characters of accuser and prosecutor, though distinct, may be united in the same person : indeed, where a commander is in fact the " accuser," he will, in the majority of cases, be found to be also the true prosecutor. 74 Whether a commander who has taken action in the case of an officer of his command proposed to be tried, — as by ordering his arrest, pre- ferring or directing the preferring of charges, or approving charges as preferred, &c., — is to be considered as an accuser or prosecutor in the sense of this Article, so as to disqualify him from ordering the court and to make it necessary for the President to do so, is a question depending mainly upon the relation and animus of such commander toward the accused or the case. Where his action has been merely official, the capacity indicated cannot in general properly be ascribed to him. Thus, where, upon the facts of the supposed offence being reported to him', and appearing to call for investigation by court-martial, he has, as commamder, directed some proper officer, as the commander of the regi- ment or company of the accused, or his own staff judge advocate, to prepare the charges, (indicating or not their form,) or has approved or revised charges already prepared, he Is not to be regarded as an " accuser " in the sense of the Article, his action having been official and In the strict line of his duty. Nor is he to be deemed a " prosecutor " merely for the reason that, having personal cognizance of the facts of. the case, he contemplates being a material and impor- tant witness on the trial." On the other hand, where, having personally originated or adopted the charges, he has himself preferred them? as his own, or caused them to be preferred nom- *" " The object of this prorision is just and beneficial. It is intended to prevent the packing of a court, and still more perhaps to prevent the suspicion of such packing." O'Brien, 227. And see G. O. 11, Dept. of the Ohio, 1866; also the opinion of the At. Gen. in case of Capt. Coleman (17 Opins., 436,) where It Is held that if the convening commander was accuser or prosecutor, the court wag " illegally constituted, and the findings and sentence consequently void." The occasion of this legislation was the trial of Col. E. Jones, Adjutant General, by a court convened by Ma]. Gen. Macomb, then commanding the Army, who preferred the charges, was the prosecuting witness, and was also the reviewing authority who approved the sentence. See the proceedings published in G. O. 9 of March 13, 1830. In the present practice, where a court-martial is ordered by the President, not as Com- mander-in-chief, but In compliance with this statute, the Order specifies in terms that it is made " under the 72d Article of War," or to that effect. See instances iii S. O. 98, 114, 118, 244, of 1876 ; 79 Id., of 1877 ; 3 Id., 1878 ; 250, 257 Id., 1879 ; 88 Id., 1880, but Buch cases are infrequent. "•Capt. Coleman's case, ante. =« Compare Digest, 83; 6. 0., 25, Dept. of Fla., 1866, (remarks of Gen. Foster •» 16 Opins. At. Gen., 106. MILITARY LAW AND PRECEDENTS. 68 Inally by another for him," with the purpose of having them brought to trial, he Is in general properly the " accuser," even if he may occupy no hostile or adverse position toward the accused. So, If, influenced by hostile feeling, or by a conviction that the accused is guilty and that his ofCence demands to be promptly and efficiently dealt with, he proposes, upon assembling the court, actively to promote the prosecution, as by instructing the judge advocate, facili- tating the attendance of witnesses for the prosecution, appearing himself as prosecuting vsritness, &c., he is properly to be deemed a " prosecutor " within the meaning of the Article, and it will not be legal for him to order the court, but the President must be resorted to for the purpose. 75 It may be remarked that the action of the .commander, to have dis- qualified him from convening the court, must have been taken by him of his own mil, and not merely ministerially and in compliance with orders. Thus where a commander, by the direction or at the instance of the President or other official superior, has caused a subordinate to be arrested and charges to be preferred against him, and thereupon assembled a court for his trial, the proceedings or sentence of such court can not be called in question under the Article." Procedure under this part of the Article. The same facts and considera- tions which are pertinent to the inquiry as to the attitude of the commander toward the case before a court has been ordered, are equally so when, the court having been assembled, the accused is arraigned, or at any subsequent stage of the proceedings." In the majority of cases, the issue upon the point, whether the commander who convened the court was or not the accuser or prosecutor of the accused, has been raised by the accused either at the trial, or subsequently before the reviewing authority and especially before the President. Regularly, indeed, where the accused is informed as to the action, and animus of the commander in the case, he should properly take the objec- tion at the arraignment ; but as the constituting of a court-martial in contra- vention of the prohibition of the Article necessarily nullifies its proceeding 06 initio, the question of the legality of a court claimed to have been thus con- stituted may be raised at any time during the trial or within a reasonable Interval thereafter." The exception being taken at the trial, the original charge, as preferred and signed, will be significant evidence. If this, however, is not forthcoming, or does not, (as it more frequently will not,) exhibit the precise relation of the commander to the case, other evidence relevant to this relation may be intro- duced, as upon the trial of any other issue. The accused, if necessary, may even call upon the commander himself to be sworn and examined. 76 The authority exclusive in the President. In view of the positive provision that, in the event of the contingency specified in the Article, the court is to be ordered by the President, it would scarcely be worth while to notice that no intermediate commander could exercise this authority, were it not for the fact that this point has actually been passed upon by the Secretary of War. This was in the case of Capt. Mackenzie, who was brought to trial, in July, 1845, before a general court-martial, which, the charges having been pre- ferred by the department commander, was ordered by Brig. Gen. Wool, com- » See case in G. O. 11, Dept. of the Ohio, 1866. "Digest, 83. ^ DIGE.ST, 84. And see 16 Opins. At. Gen., 106. " Compare the case in 16 Opins., 106. The right of the accu-sed to know whether the convening commander may not be the accuser or prosecutor In the case was recog- nized on Gen. Porter's trial. Printed Kecord, p. 10-11. 64 MILITABY LAW AND PRECEDENTS. manding the " Eastern Division." The question of the authority of the latter, under the circumstances, having been submitted to Mr. Marcy, then Secretary of War, he of course decided that the order of the Division commander was illegal, and dissolved the court." 3. TTHDER SEC. 1230, REV. STS. This Section Is as follows: — "When any offlcer, dismissed by order of the President, makes, in writing, an applica- tion for trial, setting forth, under 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 offlcer on the charges on which he shall have been dismissed. And, if a court-martial is not so convened within six months from the presentation of such'application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void." This provision was originally enacted in s. 12 of the Act of March 3, 1865, c. 79 — a date when the war was still pending and the President was empowered to summarily dismiss officers of the army. In this form the statute applied, in terms, to officers " who may be hereafter dismissed," i. e. after its date ; and it has been held, successively, by the Judge Advocate General and the Solicitor General," that the fact that the word " hereafter," or some equivalent term, was not employed in the provision, as Incorporated in the Rev. Sts., did not extend the application of such provision, or give it a retroactive effect so that an officer who had been dismissed In 1863 could be allowed a trial under it. 77 It Is further evident that, under the existing law — Sec. 1229, Bev. Sts., and the 99th Art. of war — which prohibits summary dismissals of officers by the President in time of peace, the Section under consideration is operative and available only in time of war, or in cases of officers dismissed In war." It has been held by the Judge Advocate General," In whose opinion the Attor- ney General has since concurred," that officers dropped for desertion under Sec. 1229, Rev. Sts., were not of the class of dismissed officers contemplated by Sec. 1230, and so not entitled to apply for a trial under the latter statute. The Section Is Incomplete In that it fails to prescribe a limit of time within which the application for a trial shall be made. It can thus only be said that It should be made within a reasonable time, " and what is a reasonable time will of course depend upon the circumstances of the particular case. If not made within a reasonable time, the officer will be deemed to have acquiesced in his dis- missal and waived his right to the trial." '"This case is referred to by De Hart, p. 7, and note. " DiGEsr, 373 ; 16 Opins. At. Gen., 599. " For the few cases in which officers availed themselves of this statute at the end of the late war, see G. C. M. O. 539, 568, 636, 637, of 1865 ; Do. 118 of 1866. In one of these cases the offlcer was redismissed ; in one he was awarded a punishment less than dismissal, vis., forfeiture of pay, and the original dismissal was accordingly declared void ; in the other three he was acquitted, with a like result. "Digest, 374. «17 Opins., 13. "So held by the Judge Advocate General, (Digest, 373;) the Attorney General, (17 Opins., 13;) and the Court of Claims, (18 R., 435,) — In Lieut. Newton's Case, In which also the opinions above cited were mostly given. The Atty. Genl. observes, (17 Opins., 20,) — " It is not reasonable to wait until the statute of limitations has run against the offence, witnesses have disappeared, and memory failed, or until we may naturally ex- pect these things to have occurred." In the same case the Court of Claims, p. 444, say — •■ The claimant waited nine years before making his application. During all this time he did not report himself to the Department, neither rendered nor offered to render any service, made no claim to the office or its pay, and now gives no good reason for his long silence. Under these circumstances, in our opinion, the law should presume ac- quiescence." "Newton v. V. S., 18 Ct. CI., 444, ante. MILITAEY LAW AND PEECEDBNTS. 65 The Section, moreover, does not prescribe as to the contents of the application, except tiiat the applicant shall set forth therein " that he has been wrongfully and unjustly dismissed." In practice, applications which merely followed 78 this forn* of words, without specifying in what the alleged wrong or injustice was claimed to consist, have been accepted as suflScient. A more specific statement, however, would be preferable." It is to be observed, as a further peculiarity, that a court-martial ordered under this Section differs from all other courts-martial in that, if it fails to impose one of the sentences indicated in the Section, its judgment takes' effect without the approval of the convening authority. If it acquits the party, or does not sentence him- to death or to be dismissed, his original dismissal is by such action vacated instanter and is restored to the army, and the approval or disapproval of the President can affect in no manner this result. Constitutionality of the statute. This statute has thus far been viewed as constitutional, but its constitutionality may well be questioned. The Attorney General indeed has passed upon this question," holding the Section to be within the power of Congress to legislate for the government and discipline of the army, and not to be " obnoxious to the objection that it invades or frustrates the power of the President to dismiss an officer. On the contrary," he adds, " it proceeds upon an admission that the power of dismissal belongs to the President. It is simply a regulation which is to follow a dismissal, providing in certain con- tingencies for the restoration of the officer to the service, and leaving the dis- missal in full force if those contingencies do not happen.," But the power of dismissal can hardly be deemed substantial if thus liable to be nullified at any time within an indefinite period, and moreover a statute which authorizes a court-martial not only to try a civilian, but practically to appoint him to the army, is certainly subject to serious question." 79 II. AUTHORITY OF MILITARY COMMANDERS TO CONSTITUTE GENERAL COURTS-MARTIAL. This authority is conferred by the 72d and 73d Articles of war, and Sec. 1326, Rev. Sts. 1. TTND'BIl THE 72d ABTICLE. This Article, as has been seen, pro- vides that — "Any general officer commanding an army, a territorial division or a department, or colonel com/mandmg a separate department, may appoint" general courts-martial whenever necessary." " General officer commanding an army." The corresponding term of de- scription employed in the Article of 1874, of which the above is a recent amend- ment, was — "Any general officer commanding the Army of the United States, a separate army, or," &c. Upon comparing the two forms, it is quite evident that the designation " an army " was employed as a single and comprehensive term intended to Include both the Army as a whole and any lesser or separate " army "—in other words the two sorts of armies indicated in the original 72d Article. Under the present provision, therefore, a general court-martial may be ordered — Ist, by the general officer assigned by the President to command "See DtGBST, 373. In the regulations referred to in a previous note it is directed that the application shall set focth, under oath, " facts showing the error or Injustce complained of." "12 Oping., 4. " See Digest, 373, note. » Tlie proper significance of the term " appoint, " as meaning the same as order or con- vene, has been referred to In a. prevloas note. 440593 0-42-5 66 MILITAKY LAW AND PRECEDENTS. the Army of the United States,'' (and, in practice, such courts are now fre- quently ordered by such commanding general) ; 2d, by any general commanding a body of forces organized and designated by the President for special military purposes as an "army." Such would properly be a body distinct and com- plete within itself, and not existing as an integral portion of some larger com- ponent part of the Army, but acting independently under its own commander, subject only to the direction of the Commander-in-chief, or the General-in-chief of the Army. Such an " army " would scarcely be constituted except in time of war ; and of the species of army contemplated the Army of the Poto- 80 mac, Army of the Tennessee, Army of Virginia, &c., as organized in the late war, were instances. " A territorial division or a department" — " A separate department." The terms " division " and " department," as here employed, refer to the geo- graphical or territorial commands, fixed and designated in General Orders, Into which the public domain is commonly divided for military purposes by the orders of the President.''' Such were heretofore the Divisions of the Missouri, of the Atlantic and of the Pacific ; " and are now (1895) the Departments of the East, the Missouri, Texas, Dakota, the Platte, California, the Columbia and the Colorado. The term " Division " is thus distinguished from the same word as employed in a purely military sense in the next (73d) Article, and the term Department from the same name as attached to the corps of the Gen- eral Staff." A general commanding both a Division and a Department, (as do the Commanders of the Divisions of the Atlantic and the Pacific,) is em- powered to order a general court-martial in either of his capacities. A colonel commanding a department would not be empowered to order such a court as Division Commander even if temporarily assigned to the command of 81 the Division." To make the court legal, the convening officer must of course be a department, &c., commander at the date of the con'ven- ing order.'" '' Under a similar term in the corresponding article, (the 65th,) of 1806, the dif- ferent generals commanding the Army, as Gens. Dearborn, Brown, Macomb and Scott, convened, from time to time, general courts-martial. "^ As to the meaning of the term " department," see Parker v. V. S., 1 Peters, 293 ; also 2 Opins. At. Gen., 335, where It is held that the words as used alone, (i. e., without the word " territorial " or like description,) in the 65th Article of 1806, meant geo- graphical department. Compare Art. XXIX., A. R. — " Military Geographical Divisions and Departments.'* " The Division commands were, for the time, discontinued, by G. O. 57 of July 3, 1891. " That " department," as employed in the corresponding article of 1806, Included a Etaft department, or at least the " Engineer Department," was claimed at an early period by the Chief of Engineers. See Order, Hdqrs. Engr. Dept., Washington, July 23, 1818, promulgating proceedings in cases of Pvt. B. Moss and others. Company of Bombardleiis, Sappers and Miners, tried by a general court-martial convened by the Chief of Engineers at West Point, with remarks of Brig. Gen. J. G. Swift, C. E. This view was not tenable after the ruling of the Supreme Court in Parker v. U. S., ante, and was abandoned. It has recently, (July, 1894,) been heli by the Actg. Judge Advocate General that the Chief of Engineers was not authorized to grant a leave of absence, as a department commander. ^A brevet general, assigned, (under Sec. 1211, Eev. Sts., as amended by the Act of March 3, 1883,) to command a Division or Department according to his brevet rank, would be invested with the command and powers of. a full general under this Article, and otherwise. See 17 Opins. At. Gen., 39.. M in an early case, (1813,) where the coiirt had been convened by an officer who was not a department commander, and its proceedings were therefore Illegal, it was held that the President could not make them legal by declaring the command to be a depart- ment command after the trial and sentence of dismissal. Case of Lieut. J. D. Cobb Am S. P., M. A., vol. IV, p. 82. This officer, having thus been dismissed by an illegal court was subsequently rehabilitated, with full pay for the interval, by the authority of a special Act of Congress. Do., p. 854. MILITARY LAW AND PEECEDENTS. 67 Deleg^ation of th.e authority. As the Article expressly designates certain particular commanders as competent to order general courts for armies, di- visions and departments, it follows, upon the principle of expressio unius exclusio alterim, that no other commanders or officers shall be so authorized. A commander of. a division, department or army cannot therefore delegate to an inferior, commander or to a staff officer the authority vested in himself by this Article, or authorize such officer to exercise, the same, for him, in his temporary absence or otherwise." Scope of the authority. It is of course to be understood that the authority, . conferred by the article upon division, department and army commanders 82 as such, extends only to the convening of courts for the trial of officers and men of their own command. Suspension of the authority by absence, &c. It further follows from the terms of the Article that the general officer or colonel must be in the exercise ok his command when the court is ordered, to make the order a legal one. 'VVbile the mere fact alone " that, when issuing the order, he was absent from his com- mand — as where, in pursuing hostile Indians, he had temporarily passed the boundaries of his department," or where he had temporarily left it on official business — would not properly be deemed to afEect the legality of the order," the result would be otherwise where the absence was such as, by military law or usage, to detach him from his command. Thus, where a division or department commander is absent for any considerable period from his command by reason of having received and talien advantage of a leave of absence," or of having been placed b;^. superior authority upon some distinct and separate military duty, — as the iitity of sitting as a member of a court or board at a distance Irom his department, — his authority under the 72d Article will, during the period of such absence, strictly and properly be regarded as suspended, even if no other officer be assigned to command in his place." In such cases indeed the same power that has originally assigned the officer to his command, the President, may specially order that, during his ab- "^ Digest, 82; Clrc, No; 2; (H. A.,) 1892. As to the effect of the absence of the commancler from his command, see post. The practice was at one time very general in our Army for department or army com- manders, in detailing general courts, to authorize or instrnct the commander pf the post at which the court was to be held, to fill up such vacancies as might occur in the detail, through absence, &c., with officers of his command selected by himself. See; for example, G. O. as late as of Aug. 24 and Sept. 23, 1841. In some cases the president only, or two or three members, were named by the superior, and the inferior was directed to add the rest. See 6. O. 14 of 1832 ; Do. 38 of 1838 ; also Do. (without number,) of April 11, 1838. In a few cases the Order for the court designated a certain post com- mander as president, and directed hitti to detail the other members from his coinmand. See, for example, 6. O. 60, of 1835. It need hardly be said that all such orders were in contravention of law, and upon the revision by the Secretary of War of Capt. Trenor's case, (6. O. 71 of Nov. 18, 1841,) in which the practice was condemned, the same was finally discontinued. •* Compare 16 Opins. At. Gen., 678. »See Circ. No. 8, (H. A.,) 1886. ""The principle that the effect of the status of being on leave of absence Is to detach the officer from the command or duty held or exercised at the time of entering upon the leave, is Illustrated in 1 Opins. At. Gen., 181 ; 7 Id., 161 ; 13 Id., 526, 527 ; U. S. v. Williamson, 23 Wallace, 415. And see the deflnition of soldiers "in the line of duty," as excluding those " at the time on furlough or leave of absence," In J. E. of April 12, 1866. In 13 Opins., 527, the Atty. Gen. says ; — to have " no post or duty * • • is the case, for the time being, of an officer on leave." M See G. C. M. O. 26 of 1878 ; Do. 9, Dept. of Columbia, 1880. The " decision of the Executive" referred to in the former of these Orders was a ruling, (in concurrence with an opinion of the Judge Advocate General,) that a department commander, who had. duly convened a certain general court-martial, was not authorized to talce action upon and approve its proceedings and sentence, when absent from his command and the de- partment, on a leave of absence. 68 MILITABY LAW AND PKECEDENTS. 83 sence or detaching duty, he shall continue to exercise his division or de- partment command as If he were present; and under such an order he would continue to be authorized to convene general courts therefor. But, In practice, wherever such a commander has been for any time detached from his command, the President has almost Invariably at once assigned some other officer to exercise the commend in his absence^ Discretion, in geneseal, of commander under the Article. Under the condi- tions indicated, and subject to the general law of the service, the power vested .in the commander by the Article is complete and exclusive. The President in- deed, as Conunander-in-chief, may direct him to order a court in a particular case ; and the exercise of his authority must of course be governed by the statute of limitations, (Art. 103.) But, in general, it is entirely within his discretion to determine, in each instance, whether a court shall be ordered at all, or, if ordered, when and where, (within the command,) it shall be convened. As to place, the commander, being informed of the stations and status of the officers of his command available for court-martial duty, (and having in view the gen- eral provision on the subject, of the 76th Article,) will readily select the locality at which any particular court may be assembled with the most con- venience to the service and the least expense to the United States." 2. TTNBEB THE 73d ABTICLE. This article is as follows: — "In time of vyar the commander of a division, or of a separate hrigade of troops, sluM he com,petent to appoint a general court-martial. But when such commander is the accuser or prosecutor of any person under his command, the court shaU be appointed by the next higher commander." Operation of the Article. This statute, of which the original form was contained in the Act, passed early in the late war, of December 24, 1861, made its first appearance as an Article of war in the revised code of 1874." As a pro- vision for time of war only, it certainly ceased to be operative after August 20, 1866, the date of the conclusion of the status belli throughout the United 84 States;" and in several cases the proceedings of courts convened under it in 1866, subsequently to that date, were declared void in Orders." Division and brigade commands. In our law a brigade properly consists of at least two regiments of infantry or cavalry, and a division of at least two brigades ; and the " commander " indicated in the Article will regularly be, of the former a brigadier general, and of the latter a major general." It is not, however, essential that he should be such, or even a general officer. A colonel or officer of less rank may, in war, become, for the time, by virtue of seniority, the commander of a brigade or a division, and as such empowered to exerdse the authority devolved by this Article. Except indeed in war, divisions and bri- gades are not formed in our army." Keaning of " separate brigade." By this term is evidently meant a bri- gade which is not a component part of any divi^on, but is operating by itself, and of which the commander reports directly to the commander of the corps, army, or department, or to the General commanding the Army or the Commander-in- chief.s» After the passage of the Act of 1861, the origmal of Art 73, it was found that officers sometimes assumed to convene general courts as com- manders of "separate" brigades, when their commands were not separate "G. O. 9 of 1892. ~ " Other provisions of this Act are Incorporated in Arts. 105, 107 and 112. » The Protector, 12 Wallace 702. «G. O. 68, Dept. of Washington, 1860; Do. 7, Dept of the Potomac, 1866- Do 24 Dept. of the Mo., 1866. "• Sec. 1114, Eev. Sts. See ante as to the difference hetween the term •• division " as iiere used and as used In the preceding Article. <" Par. 188, Army Eegs. "Digest, 85. MILITABY LAW AND PBECEDENTS. 69 In the evident sense of the Article, but were embraced In division commands,*' or were small or mixed commands not properly amounting to or constituting brigades." The latter was pectiliarly tte case with the commands known 85 as " districts." With a view of defining the subject, there was issued from the War Department, In August, 1864, a General Order, which, under the heading of " Courts-Martial for Separate Brigades^" prescribed as follows: — "Where a post or district command is composed of wAxed troops, equivalent to a brigade, the commanding officer of the Department or Army vnll designate it im, orders as " a separate brigade," and a copy of such orders will accompany the proceedings of any Oemeral Court-Martial convened hy such brigade comanander. Without such authority, commamders of posts and dis- tricts having no brigade organization will not convene Oeneral Courts-Martial." The rulings of the Judge Advocate General In construing this Order are set forth in the Digest of Opinions.^i The Article under consideration concludes with the provision that, when a commander, authorized by the article to order a general court, ■" is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher commander." What has been said under the previous Article as to the purport of the terms " accuser " and " prosecutor " will in substance be applicable here. The " next higher commander," in our military organization in time of war, will ordinarily be the commander of the " army In the field to which the division or brigade belongs." It Is this commander whose confirmation is made by Art. 107 necessary to the execution of sentences of dismissal adjudged by division and separate brigade courts-martial. 3. TTNDER SEC. 1826, REV. STS. This statute declares that : "Tlie Su- perintendent of the Military Academy shall have power to convene general courts-martial for the trial of cadets, and 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." This is an enactment of March 3, 1873, and Is properly an article of war. The " Superintendent " Indicated Is the oflScer invested, by Sec. 1311, Rev. Ste., with the " immediate government and military command " of the Academy 86 and of the military post of West Point The above provision Is suffi- ciently clearly expressed," and no serious question as to its construction Is known to have been raised. The "limitations and conditions" which It refers to are the following, viz: (1) that sentences of dismissal or suspension, imposed upon cadets by courts-martial convened by the Superintendent, can become operative only through the order of the President given for their execu- tion, upon the formal confirmation by him of the same, after the approval thereof by the Superintendent; (2) that where the Superintendent Is the " accuser " or " prosecutor " of a cadet Vvhose trial Is contemplated, recourse must be had to the President for the ordering of the court, as in the analogous case of the " officer " referred to In the 2d clause of Art. 72. ™ In G. O. 299 of 1863, the proceedings were set aside and the sentence held Inopera- tive In a case tried by a general court convened by the commanding officer of the " 2d Brigade, 3d Division, 14th Army Corps," i. e., of a brigade which was a component of a division and so not " separate.'' And see G. O. 246 of the same year ; also Digbst, 85; ™ See case in G. O. 14, Dept.of the Platte, 1866. " Pages 86-87. See also G. C. M. O. 43, of 1866, where It was held that the officer commanding the " Kanawha Valley Forces " was not authorized to order a general court ; also G. O. 48, Northern Dept., 1866, where it was similarly held of the com- mander of a Draft Rendezvous. '= It would have been more complete had the words approve the proceedings and been Inserted before the word " execute." That the Superintendent shall approve be- fore executing is however of course to be understood. CHAPTER VII. THE COMPOSITION OF GENERAL COTTRTS-MAUTIAL. 87 This subject is regulated by the 75th, 77th, 78th and 79th Articles of War, and Sec. 1658, Rev. Sts. It will be considered under the heads of — ^I. Class and Rank of Members; II. Number of Members. I. CLASS AND RANK OF MEMBERS. THEY MUST BE COMMISSIONED OFFICERS. — ^Art. 75. This Article provides that — " General courts-martial may consist of * * * officers; " i. e. that officers alone shall be competent to sit on such courts. Sec. 1342, Rev. Sts., by which the code of Articles is prefaced, declares that " the word officer as used therein shall be understood to designate commisstoned officers." Commissioned officers only therefore may compose general courts.' The de- tailing of non-commissioned officers or soldiers, where the accused is of one of these grades, with commissioned officers, on courts-martial, which Is required by some of the European codes,' has never been authorized by our law. GENBBAL RULE OF ELIGIBILITY. The term "officers" not being lim- ited or qualified by the Article, (Art. 75,) it follows that all commissioned officers of the army, of whatever rank, and whether or not having command, are, (except where specifically excluded by express enactment,) eligible to be de- tailed as members of general courts. Officers on the retired list are so 88 excluded by Sec. 1259, Rev. Sts. ; ' but they are the only class thus ex- cepted. All other commissioned officers, 1 e. all officers on the active list having military rank,* whether officers of the line or staff, may legally sit as members ; ° and although stafC officers are detailed as such less frequently than line officers, there is, in our present limited army, no department or branch of the staff, (other than the Judge- Advocate General's department,)' which is not more or less frequently represented on courts-martial, except only chaplains.' The officers detailed must all of course be within the command .of the convening commander.' ' The law Is the same as to Inferior courts. See Arts. 80-82. ' See the author's Translation of the German Military Code, p. 16 — ^note, and .authori- ties cited. The French Code de Justice Militaire, § 10, directs that one soua-offloier, (non-commissioned officer,) shall sit on courts for the trial of non-commissioned officers and soldiers. ' See, In this connection, 19 Opins. At. Gen., 500. * See post — " Professors." ■> Subject of course to objection under Art. 88. It may be remarked that officers known or believed to be liable to challenge will not properly be detailed upon courts- martial. 'This for the reason that the duties of the officers of this department include the reviewing of and reporting upon the proceedings of trials, and because they are not unfrequently required to be utilized as judge-advocates in important eases. » Chaplains, being commissioned officers with the rank of captain, are as legallv eligible for court-martial duty as any other officers of the army. Their detail however has been expressly discountenanced by the Secretary of War. Circ Dept of Cal June 8, 1875. » See par. 189, Army Regulations. The classes of officers specified In par. 190, A. K., though within the territorial department, are not within the command of the depart- ment commander. See Circ, No. 13, (H. A.,) 1891. 70 MILITABY LAW AND PRECEDENTS. 71 WHO ABE COMMISSIONED OFFICERS. These are officers who have duly received and accepted commissions appointing them, (or rather evidencing their appointment,) to offices in the army. A commission may be permanent or temporary ; that is to say it may evidence an appointment made by the President and confirmed by the Senate, or merely an appointment of the class authorized, by Art. II., Sec. 2 § 3, of the Constitution, to be conferred by the President dur- ing a recess of the Senate, to " expire at the end of their next session," and also called " commissions " In the Constitution.* Thus an officer holding a com- mission of the latter description, is, while it remains In force, as eligible to 89 be assigned to duty on a court-martial as is any officer who has received the more formal and permanent commission Issued upon the confirmation of his appointment by the Senate. So, the tenure, as to duration, of the office conferred by the commission cannot affect the eligibility of the officer for court- martial service. Thus a commissioned officer of volunteers, though the tenure of his office may be limited to a comparatively brief period, is no less eligible for such service." The appointment of a Cadet is not a commission in the military sense." He is therefore not a commissioned officer, and not eligible to act as a member of any court-martial." " ACTING " OFFICERS. It need hardly be added that persons " acting; " (by the authority of military orders,) as officers, or for and in the stead' of officers, but who are not legally appointed or commissioned as such, are, though effectively performing all the duties which would devolve upon officers of the army under similar circumstances, clearly not officers within the meaning of the present Article, or qualified to sit upon courts-martial. Thus an " acting assistant," or " contract " surgeon, not being an officer of the army, but a civil official, is not so qualified," and would not be so even though serving with an army in the field and thus subject to military discipline. Nor, for a similar reason, would a civilian, acting as a volunteer aid on the staff of a general in the field, or a non-commissioned officer acting as a commissioned officer, be thus eligible. " OFFICERS " IMPLIES RANK. — Professors. It is clearly contemplated by the laws and regulations governing the service that members of courts- martial shall have relative military rank. Thus Art. 79 provides that an officer shall not in general be tried by officers inferior to him in rank ; so the Army ' Regulations, pars. 878, 879, 881, direct as to the order of the naming of the members in the detail and their precedence on the court and as to the 90 selection by seniority of the president. The term " officers," as employed in Art. 75, must therefore be deemed to imply rank; and as all commis- sioned officers, with a single exception, of the present military establishment have military rank, it follows that the excepted officers referred to cannot legally be ordered to sit on courts-martial. These are the Professors of the Military Academy, who, though made by Sec. 1094, Rev. Sts., a part of the army, and appointed by the President and confirmed by the Senate as public officers, e See 18 Oplns. At. Gen., 28, 29 ; 19 Do., 261 ; O'Shea v. V. S., 28 Ct. CI., 392. Ref- erence may well te made in this connection to the definition of the term " ofiScer of the United States " as set forth, by the Supreme Court in U. S. v. Germaine, 99 U. S., 508, and U. S. v. Monatt, 124 U. S., 307. " See 10 Opins. At. Gen., 522-3. "He is held by the Court of Claims, (Babbitt v. U. S., 16 Ct. CI., 203,) to be of the class of " inferior officers," indicated in the Constitution, (Art. II., See. 2,) as appointed but not commissioned. See Collins v. V. S., 14 Ct. Cl„ 569. " 1 Oplns. At. Gen., 469 ; 2 Id., 251 ; 7 Id., 323. la Digest, 144 ; Byrnes v. V. S., 26 Ct. CI., 302. 72 MnJTAKY LAW AND PRECEDENTS. yet have no military rank. That they were not eligible to detail upon courts- martial, because having no rank " lineal or assimilated," was held by Attorney General Wirt in 1821." More recently they have been described by Attorney General Brewster as " commissioned officers of the army," who " in pay and allowances are assimilated to the rank of colonel and lieutenant-colonel." " In this category, however, is not included the Professor of Law, who is an officer of the army temporarily detailed in this capacity," and is therefore legally eligi- ble as member or judge-advocate of a general court-martial. RELATIVE BANK OP MEMBERS. — ^Art. 79. This Article, with a view to the excluding, as far as reasonably practicable, from courts-martial, officers who as junior to the accused may have an interest in procuring him to be dis- missed, suspended, &c., provides that — " No offlcer shall, when it cam 6e avoided, he tried hy officers inferior to him in rank:" This provision, (like that of the 75th article in reference to the number of the court, presently to be considered,) is regarded as not prohibitory but directory only upon the convening commander. Its effect is understood to be to leave to the discretion of that officer, as the conclusive authority and judge, the determining of the question of the rank of the members, with only the general instruction that superiors or equals in rank to the accused shall be selected, so far as the exigencies and interests of the service may permit. Such was, early in the recent war, the construction given to the provision by Judge Advocate General Holt," and this construction, 91 adopted by other authorities," has been recently finally established In the case of MuUan v. V. S.," where it was held by the Supreme Court, affirm- ing the judgment of the Court of Claims,™ that, in the instance of a court- martial of the navy, (whose code in this respect is similar to that of the army,) composed of seven members, five of whom were junior in rank to the accused, it was to be presumed that the detailing of such a proportion of junior officers could not " be avoided without injury to the service," and that the legality of the proceedings of the court was not affected thereby. Thus, that an officer Is inferior in rank or grade to the accused does not render him Incompetent to sit as a member of a military court-martial,"" or subject him as such member to challenge.'' Nor would it affect the validity of the proceedings that all the members were junior to the accused. In practice, In our service, courts for the trial of general officers have almost Invariably, if not necessarily, comprised members junior to the accused ; In time of peace Indeed, It would rarely be practicable to assemble even a minimum " 1 Oplns., 469. « 17 Opins., 359. " Under the Acts of June 6, 1874, and June 1, 1880. "Digest, 89. "See trial of C'apt. D. Porter of the Navy, (1825,) p. 20; G. C. M. O. 7, Dept. of the Platte, 1880 ; Wooley v. U. S., 20 Law Rep., 631 ; also case cited in note 21, post. That the phrase, "wJien it can l)e avoided," in Art. 79, has practically the same meaning as the clause of Art. 75, that general courts "shall not consist of leas than IS when, that number ca» 6e convened without man/it est injury to the service," is illus- trated by the provision in the naval article, (No. 39,) corresponding to that of Art. 79, viz : — " where it can l)e avoided without injury to the service; " this expression com- bining in effect the two forms employed in the articles of war. •» 140 U. S., 240. »" 23 Ct. CI., 34. 21 In Lieut. Armstrong's case it was held by the Attorney General, (17 Opins., 397,) that the fact that a member, not objected to on the trial, would (and did) become ad- vanced in his grade by the dismissal of accused, did not render him incompetent or affect the validity of the proceedings. =2 See Trial of Capt. Porter above cited ; also, generally, under Eiqhiy-eiqhth Abticlb in Chapter XIV. MILITARY LAW AND PBECEDENTS. IS court of equals or superiors in rank for the trial of a general officer of one of the higher grades."" Upon courts for the trial of officers of the lower 92 degrees the direction of the Article has been more nearly observed. There have indeed been frequent departures from the rule, prompted doubtless in general by a due consideration for the convenience and economy of the service. Such exceptions, however, if reasonaUlp avoidable, are in qon-, travention of the letter of the law, and should not be too freely sanctioned. COMPETENCY OF CERTAIN CLASSES OF OEFICEBS IN CERTAIN CASES — Regulars, as distinguished from volunteers, militia, &c. — ^Art. 77. This article declares that — " Officers of the regular army shall not he c&m-' petent to sit on courts-martial to try the offlcers amd soldiers of other forces, except as provided vn Art. 78,"— next to be considered. By "regular army" is to be understood the permanent military establishment, as especially dis- tinguished from volunteers, or militia in the federal service. These two con- tingents — volunteers and militia — are indeed qiiite distinct from each other; the former, as will be further illustrated in the next Chapter, being, for the time, equally with the regulars, a part of the Army of the United States, while the latter, though in the employment of the nation, are State troops." But in view of the comprehensive and general term, " officers and soldiers of other forces," the Article has been construed as disqualifying regular officers 93 from acting as members of courts-martial for the trial of any officers or soldiers not of the regular army, whether volunteers, militia, drafted men, or any other persons except the class of marines designated in the next article. Thus a court composed entirely of regular officers cannot legally be ordered for the trial of an officer or soldier of another military force ; nor, where such a court has been once duly created for the trial of a regular or regulars is it qualified to proceed to the trial of a volunteer, &c., if brought before it for trial. And where the court is not entirely but only partially so composed, even if it comprises five officers of another force eligible for the particular trial, it cannot legally proceed to such trial. Volunteers, &c., as eligible for trial of regulars. It may be noted that while regular officers are thus precluded by Art. 77 from trying offenders belonging to the other branches of the public military force, our code con- tains no converse provision that regulars shall not be tried by courts composed "On some of the principal trials of general officers in our army, the rank of the members of the court was as follows : Maj. Gen. Chas. Lee, (1778,) — 1 maj. gen., 4 brig, gens., 8 cols.; Maj. Gen. Arnold, (1779,) — 1 maj. gen., 3 brig, gens., 9 cols.; Brig. (3en. Hull, (1813,) — 1 maj. gen., 1 brig, gen., 4 cols., 7 lleut. cols. ; Ma]. Gen. Wilkinson, (1814,) — 2 maj. gens., 3 brig, gens., 7 cols., 1 lleut. col. ; Maj. Gen. Gaines, (1816,) — 1 maj. gen., 3 brig, gen., 3 cols., 6 lleut. cols. ; Bvt. Maj. Gen. Twiggs, (1858,) — ; 3 bvt. maj. gens., 2 bvt. brig, gens., 5 cols., 2 bvt. cols., 5 lieut. cols. ; Maj. Gen. Porter, (1862,) — 2 maj. gens., 7 brig. gens. ; Brig. (Jen. Hammond, (1864,) — 1 maj. gen., 8 brig. gens. ; Brig. Gen. Swaim, (1884,) — 1 maj. gen., 5 brig gens., 7 cols. ; Brig. <3eB. Hazen, (1885,) — 2 maj. gens., 8 brig, gens., 3 cols. The court for the trial of Marshal Bazalne, (1873,) consisted of ten generals, no marshals being at the time available. That by which the " Emperor " Maximilian and his generals Mlramon and Mejia were tried and sentenced to death, at Queretaro, Mexico, June 13-14, 1867, was composed of one lleut. col. (president,) and six captains. "Art. 1, Sec. 8 § 16 of the Constitution. In some cases duripg the late war volun- teers were confounded with militia, and It was held that, under the then existing Art. 97, a regular officer could not legally be detailed on a court for the trial of volunteers. G. 0. 53, Dept. of the Bast, 1864 ; Do. 16, Dept. of the Mo., 1864 ; G. C. M. O. 11, 13, 16 Dept. of Ky., 1865. While this construction Is believed to have been incorrect, it can scarcely be questioned that the present Art. t7 — a much clearer and more precise provision — is to be interpreted as indicated in the text 74 MILITAHY LAW AND PRECEDENTS. of officers of the other contingents — militia or volunteers — of a mixed national army. In the absence of any such provision during the late war, officers of volunteers were not unfrequently detailed as members of courts-martial for the trial of regular officers and soldiers ; their competency to take part in such trials having been at an early date affirmed by the Judge Advocate General. Officers of militia called forth and engaged in the public service would have been equally competent. And — the law remaining unchanged — militia and volunteer officers will of course be similarly competent, when serving with regulars in the future; as wlU also militia officers be competent to sit upon trials of volunteers." REGULARS AND MARINES ASSOCLA.TED.— Art. 78. This article 94 provides that: "Officers of the marine corps, detached for service with the army ty order of the President, may he associated with officers of the regular army on courts-martial for the trial of offenders 'belonging to the regular army, or to forces of the marine corps so detached." The nature and capacity of that amphibious branch of the public service known as the Ma- rines, as a kind of connecting link between the army and the navy, is illus- trated in this Article. This corps, under the earlier legislation in regard to It," had occoupied an undefined position." The Act of June 30, 1834, however, while assimiliating it to the army in respect to organization, discipline and pay, permanently attached it to the naval establishment for administrative and jurisdictional purposes,'" and is now classed as a part of the navy in the Revised Statutes. The Act of 1834 contained a provision, now re-enacted in Sec. 1621, Rev. Sts., — " That the said corps shall at all times be subject to and under the laws and regulations lohich are or may hereafter be established for the better government of the navy, except tohen detached for service with the army by order of the President." The latter part of this provision, incorporated with the substance of Article 68 of the code of 1806, forms the present 78th Article. The principal situations in which marines would be likely to co-operate or be associated with the army on duty, are indicated in the provision of the Act of 1798, embodied in Sec. 1619, Rev. Sts., as follows — " The marine " In this connection may be noticed a ruling properly made during the late war — that an aid-de-camp to a Governor of a State was not as such eligible to be detailed on a court-martial for the trial of U. S. volunteers. G. O. 30, Dept. of the Mo., 1864. It is of course not competent for a military commander to order that courts for the trial of a certain class of volunteer, &c., troops shall be composed In whole or In part of particular volunteer, &c., officers. Thus the order — G. O. 46, Dept. of Va. & No. Ca., 1863 — that a majority of the members of courts for the trial of colored troops should, (when the same could be detailed without manifest injury to the serv- ice,) be officers In command of such troops, was properly revoked by the subsequent G. O. 29, Dept. of Va., 1865. » Res. of Nov. 10, 1775 ; Acts of March 27, 1794, July 1, 1797, April 27, 1798, July 11, 1798, and Dec. 15, 1814. " Atty. Gen. Berrien describes the corps, (in 1830,) as — " In many respects anom- alous, attached both to the army proper and to the naval armament of the United States, and yet incorporated with neither, but rather sui generis " 2 Oplns., 357. And see Id., 239-241, 353 ; 3 Id., 117, where It was regarded as rather belonging to the army ; and, contra, 1 Id., 381 ; 2 Id., 78 ; 5 Id., 705 ; Com. v. Gamble, 11 S. & K., 93 ; Wilkes v. Dinsman, 7 Howard, 125, where it was viewed as an adjunct of the navy — under the legislation prior to 1834. i*See 10 Opins. At. Gen., 118, 129, 487; 19 Id., 618, Wilkes v. Dinsman, 7 Howard, 125, 126; In re Bally, 2 Sawyer, 200; In re Doyle, 18 Fed., 369. The corps of the marines Is not " a distinct military organization," but " a military body, primarily belonging to the navy, and under the control of the head- of the naval department, with liability to be ordered to service in connection with the army, and in that ease under the command of army officers." V. S. v. Dunn, 120 U. S,, 253, 265. MILITARY LAW AND PRECEDENTS. 75 95 corps shall be liable to duty in the forts and garrisons of the United States, on the sea-coast, or any other duty on shore, as the President at his discretion may direct." Marines were detached for service with the army for considerable periods in the war with Mexico;"' and similarly on several occasions during the recent war, of which the taking of Fort Fisher was the most marked.'" In the early case of Lieut. Col. Wharton of the marine corps," it was held by Atty. Gen. Rush that, under the terms of Art. 68 of 1806, it was discretionary with the government whether to detail any marine officers on a court-martial for the trial of a marine serving In connection with the army ; — that the court might legally be composed of army officers only ; and this conclusion was ap- proved by the President. It was deemed expedient, however, to detail two marine officers on the court In that case ; and such course, since adopted in prac- tice, is especially fitting in view of the changed relations of the army and marine corps under the subsequent legislation. In what proportions the two difCerent classes of officers will properly be asso- ciated on courts-martial is not indicated by the Article ; this matter being evi- dently left to be regulated by the conveiring authority in view of the comparative numbers of the officers of the two corps available for the duty, the particular corps — ^whether army or marines — of the offender or majority of offenders to be tried, &c."' 96 MILITIA. — ^Authority for their government, &o. The Constitu- tion, Art. I, Sec. 8 § 15, 16, empowers Congress — " To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and re- pel invasions ;" and further — " To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; reserving to the States respectively the appoint- ment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." It also, (Art. II, Sec. 2 § 1,) makes the President the Commander-in-chief of the militia when in the service of the United States." " See the references to the services of this corps in the Mexican war, in 5 Oping. At. Gen., 59, 155 ; also the recognition of their service hy Congress in the J. R. of Aug. 10, 1848, and in the vote of thanks, tendered in the J. R. of Aug. 7, 1848, " to the oflScers, sailors, and marines of the navy," especially for " their efficient co-operation with the army in the capture of Vera Cruz and the castle of San Juan de Ulloa." See, further, as illustrating the subject, the printed Trial of 1st Lieut. J. S. Devlin, Marine Corps, Wash- ington, 1852. ™ See official reports of Gen. Terry and Rear Admiral Porter, and votes of thanks to them and their commands in the J. R. of Jan. 24, 1865. ^ G. 0. of Sept. 19, 1817. ^ Marine, and other, officers were detailed together as follows, in the following Or- ders : — In G. O., Third Mil. Dept., of Oct 20, 1813, 1 marine officer with 4 regular and 2 volunteer officers; In G. O., Hdqrs., N. Orleans, of Dec. 25, 1813, 2 marine with 7 other officers ; In Dept. O., Second Mil. Dept., Nov. 15, 1817, 1 marine officer with 5 other officers; In Lt. Col. Wharton's case (ante,) 2 marine with 3 regular officers; In Orders, Second Mil. Dept., Nov. 24, 1818, 3 marine with 2 regular officers; In G. O. 6, A. G. O., 1830, 2 marine with 5 regular officers, for the trial of a captain of marines; In C, No. 47, Army of the South, 1836, 2 marine with 5 regular officers ; In G. O. 10, Hdqrs. Army, Mexico, 1848, 1 marine officer with 8 regular officers, in a court hy which were tried 24 soldiers of the army and 1 enlisted marine. Hough, (P. 683,) cites a case of an officer of marines, in which, "at the prisoner's re- quest, his court-martial," (ordered under an article similar to that of our code,) " was composed of one-half officers of his own corps and the other half of officers of the line. ' ss That the Militia of the District of Columbiw are no part of the Militia of the Consti- tution, see ante, p. 56, note. 76 MILITARY LAW AND PRECEDENTS. By virtue of these grants. Congress, in a series of statutes, particularly in those of May 2, 1792, February 28, 1795, April 18, 1814, May 13, 1846, July 29, 1861, and July 17, 1862, s, 1, has authorized the President, in certain contin- gencies," to caU forth the militia, and has provided for their government ; and in a further series, (particularly in those of May 8, 1792, January 2, 1795, May 2, 1803, April 23, 1808, May 12, 1820, March 19, 1836, and July 17, 1862, s. 2,) has provided more especially for their organization, arming, pay, and internal discipline. Of the former series the Act of 1792 was repealed and superseded by that of 1795, -which was indeed with some slight modiflcations a repetition of- the first. The Acts of 1814 and 1846 were resorted to for the special oc- 97 casions of the late war with Great Britain and the war with Mexico respectively, and presently expired by their own limitation." To the date of the Revised Statutes the Act of 1795 remained the principal law on the subject of the mobilization and government of the militia, though in some of its details superseded or materially amended by the Acts above specified of 1861 and 1862." These Acts were Indeed adaptations of the legislation of 1795 to the circumstances of the recent war. Such of their provisions as were of a general character, together with those remaining from the Act of 1795 and other early legislation, comprise, (in combination with the operative enactments of the second series above indicated,) the existing law relating to the militia, and are aU incorporated in a separate Title^-No. XVI — of the Revised Statutes. The first section of this Title defines the militia as including, generally," " every able-bodied male citizen of the respective States, resident therein, who is of the age of eighteen years, and under the age of forty-five years ; " and Atty. Gen. Iiegar6 has well described this class as " the body of the people, armed and disciplined In self defense." " When and how the militia are brought within the jurisdiction of courts-martial, and what is the extent of that jurisdiction, will be considered in the next Chapter. Composition of militia courts." As to the composition of such courts, — Sec. 1658, Rev. Sts., (a re-enactment, in the same words, of s. 6 of the Act of 1795,") provides : " Courts-martial for the trial of militia shall be composed of militia oflicers only." The " courts-martial " here indicated are courts-martial not of States 98 but of the United States, convened not under State law but under the Articles of war, and the militia referred to are the militia when called into the active service of the United States under the Constitution and the laws above mentioned. The "militia officers" are the officers elected or appointed for such militia under the laws of the States from which they are called, In conformity with the Constitution, Art. I, Sec. 8, I 16. " That the President Is the sole jndge to determiBe whether one of the exlgendes con- templated by the Constitatlon has arisen, and that his decision on the point is conclusive apon all other persons, was held in Martin v. iiott, 12 Wheaton, 19. And see Luther v. Borden, 7 Howard, 11 ; Vanderheyden v. Young, 11 Johns.. 150 ; People v. CamplKll, 40 N. Y., 135 ; Kneedler v. tane, 45 Pa. St., 238. =» See Mills v. Martin, 19 Johns, 21, 23. "By the Act of 1862, the President was, for the first time, authorised to resort to conscription for compelling the service of the militia. See McCaU's Case, 5 Philad., 259. " With certain exemptions specified in Sec. 1629. "»2 Opins. At Gen., 691. The so-called "National Ouard" Is simply a part of the militia. Neither the Constltiitlon nor Laws of the United States distinguish it in any manner from the mttss of the militia. ■»As to the coiurts-martial of the militia of the District of Columbia, see ante p. 55, note. ' "This provision was also contained in the code of articles of 1806, (in Art 97) hut was omitted from that of 1874. ' MHJTAEY LAW AND PRECEDENTS. 77 In composing, however, courts-martial for the trial of militia, the members are to be selected from the entire body of militia officers in the service of the United States, without any reference to the different States from which they may have been called. Militia once called into the service, from whatever State, may be placed by the President under the command of any officer," and may be required to serve in any part of the United States; " and it was specifi- cally held in Mills v. Martin" that a court for the trial of a militiaman need not be composed of officers of the militia of the State of the accused, but might legally be made up of officers of the militia of any State or States. In the article of war of 1776, in which the statute under consideration first ap- peared in our law, it was provided that militia courts should "be composed entirely of militia officers of the same provincial corps with the offender." This restriction was omitted In the corresponding article of 1806, the original provision having been meanwhile superseded by the present form as initiated in the Act of 1795.** II. NUMBER OF MEMBERS. THE LAW ON THE SUBJECT. This is contained in Art. 75, as fol- lows: — "General courts-martial may consist of any number of members from five to thirteen; but they shaU not consist of less than thirteen when that number can be convened without manifest injury to the service." EIVE MEMBERS A QUORUM. It is clear from the first part of this provision that, while a court of less than five or more than thirteen" 99 members will not be a legal body," a court of five wilL always be a full and complete tribunal for the purpose of trial and judgment, and that the addition of further members will not augment or in any manner affect its jurisdiction or authority. A less number indeed than five may meet and ad- journ, and where there are but five members present at the outset and one is objected to, (under Art. 88,) the other four may deliberate and determine upon the challenge." But five members at least must be sworn and constitute the court for the trial, and five must continue present and acting throughout the entire proceedings till the final record is completed and authenticated. *i Cooley, note to 2 Story, Com., 121. " Hlghsmith v. Ussery, 25 Texas, 108. « 19 Johns., 7. **Tlie present enactment is, as has already been noticed, properly an article of war, and might well have been embraced in the present, as it was in the preceding, code. *^ The first Mutiny Act prescribed that no court authorized thereby should " consist of fewer than thirteene." Clode, (M. L., 120,) obseryes : — " It may reasonably be pre- sumed that the controlling analogy which suggested this tribunal, (composed of a presi- dent and twelve officers,) was the ciTll administration of Justice by a presiding judge and twelve Jurymen." In the present British law, " a general court-martial shall con- sist, in the United Kingdom, India, Malta, and Gibraltar, of not less than nine, and elsewhere of not less than five, officers." Army Act, § 48, (3.) "Thirteen members were usually detailed on our earlier important general courts- martial — those, for instance, for the trials of Gens. Hull, Wilkinson and Gaines, and Col. Gushing, in 1811-1818. So, for the trials of Capt. Drane in 1846, Lt. Col. Fremont in 1847, and Gen. Twiggs in 1858. Of later years the maximum has more commonly been nine — the number in the cases of Gens. Porter and Hammond, in the recent war. In the cases of Gens. Swaim and Hazen, however, the number detailed was thirteen, and that number is now, (1894-5,) more resorted to than heretofore. In the British service, before courts of less than thirteen were authorized for the trial of officers, the number of members often exceeded that number. For example, the number detailed for the trial of Lord George SackvlUe, in 1760, was sixteen; for the trials of Lt. Gen. Murray and Col. Debbieg, in 1783 and 1784, eighteen ; for the trial of Lt. Gen. Mordaunt, In 1757, twenty-one ; and for the trials of Capt. Burrlsh, Lieut. Page, and others, tried by a naval court in 1745, twenty-five. "Digest, 88. 78 MILITAEY LAW AND PRECEDENTS. If the court begins with more than five members, the loss or absence of one or more does not affect its capacity provided at least five remain, and this rule applies through the entire life of the body." Thus five are sufficient to be re- assembled and to revise the sentence, though vrhen it was originally ad- 100 judged, the court may have consisted of ten or thirteen members; and the sentence, as revised and finally adopted by the five, will be the sen- tence of the court." On the other hand, if a court, beginning with five or more, loses, by the opera- tion of challenge, or by death, sickness, or other casualty, a member or mem- bers, so that it is reduced to four or less, its action must be at once suspended, since it has ceased, for the time at least, to be a court, and the objection to its proceeding is one which cannot be waived." The number — within the limitations of the Article — to be detailed upon a general court for the trial of any case or cases, will be determined by the con- vening commander in his discretion, and with a view especially to such cir- cumstances as the rank of the accused, the importance of the case, the character of the offence, the supply of available officers, and the exigencies of the service." AITTHORITY TO ADD MEMBERS. A General court, though reduced be- low five, is not necessarily to be dissolved, nor can it assume to dissolve itself or declare itself dissolved. Such dissolving is a function of the convening com- mander, who is also empowered, in his discretion, to continue the court by adding a member, or the requisite number of members to bring it tip to five, and when thus renewed, its power as a court is restored, and it may legally proceed with the trial." The adding, however, of new members to courts- martial, after a trial has teen entered upon, has been of rare occurrence In our practice. Such action Is- not indeed illegal ; " the added member, 101 provided the evidence taken, or material proceedings had, prior to his appearance, be first read to him from the record, and he be duly sworn, (after the accused has been afforded an opportunity to challenge him,) may legally act upon the court during the remainder of the trial and take part in the judgment ; and the sentence, if any, imposed by the court will be entirely legal and operative. But this action must be in general of doubtful policy, and is not to be resorted to unless the demands of justice and interests of the service clearly require it. Where, for example, by the death, disability, en- forced absence, &c., of a member or members, a court is reduced below five, in the midst of an important trial, so that, if not renewed, its previous pro- ceedings, however extended, will go for nothing, and the trial will have to be recommenced by a new court, to the delay of justice, inconvenience of the service, detriment of discipline, and perhaps greatly increased public expense, — « A form, now unknown, prevailed to some extent in our army, apparently till about 1841, of detailing 13 or 11 members, with directions to proceed If not reduced below 9 or 7. See G. O. 44 of 1832 ; 3 of 1837 ; 25 of 1839 ; 65 of 1841. "Digest, 678. And see 7 Opins. At. Gen., 388. The direction often given In con- vening orders to the effect that " should any of the members be prevented from attending, the court will proceed provided the number present be not less than the legal maximum " — Is wholly unnecessary and surplusage. "Digest, 88. »iCopp6e, 55. '"Digest, 88. "= Though not favored, it has been regarded as legal in our service ever since It was sanctioned by the Secretary of War on Gen. Hull's trial In 1814. The Secretary there held that new members might be added pending a trial, " the proceedings as recorded being read to them." See published Trial, appendix, p. 29. F'rom this ruling dates also the authority for the returning to the court of absent members, a subject to be considered in Chapter XII. MILITARY LAW AND PKECEDENTS. 79 in such a case the authorized commander will be fully justified In continuine the courts by the detail of the requisite number of members. EFFECT OF SECOND CLATJSE OF ARTICLE. — " Manifest injury."— The Article, as has been seen, declares that a general court " sJmU not consist of less than thirteen when that number can 6e convened without manifest injury to the service." In a case of a deserter sentenced to be shot by a court of five members, it was held, at an early period, (1810,) by Atty. Gen. Wirt," that the court "was not a legal" one "if thirteen could have been convened with- out manifest injury to the service." He adds : — " It is difficult to conceive an emergency so pressing as to disable the general officer who orders the court from convening thirteen commissioned officers on a trial of life and death, without manifest injury to the service. And if a smaller number act without such manifest emergency, I repeat that they are not a lawful court, and an exe- cution under their- sentence would be murder." He concludes by suggesting to the Secretary of War " as a matter of legal propriety, that in every case of life and death at least, the President ought to be satisfied of the manifest injury which the service would have sustained in convening a court of thirteen, before he gives his sanction to a sentence of death by a smaller number." 102 This case was one which occurred in time of peace, when death sen- tences are required to be confirmed by the President, and, being of an extreme class, it was proper that the fullest weight should be given to any legal doubt as to the validity of the proceedings. But the theory that the question of " manifest Injury " is reviewable by the President, or any authority superior to the officer who ordered the court, has ceased to be admissible since the specific adjudication on the subject, in 1827, by the Supreme Court in the case of Martin v. Mott."- In this case. Story, .T., in construing the provision of the Article under consideration, held that the same was " merely directory to the oflicer appointing the court, and that his decision as to the number which can be convened without manifest injury to the service, being in a matter sub- mitted to his sound discretion, must be conclusive." This ruling settled the law on this point," and the question as to the legality of a court of less than thirteen members is not now raised In practice. In the form of Order for convening a general court, now commonly em- ployed, a clause is generally added, after the recital of the officers detailed, when less than thirteen, to the effect that ' a greater number of officers than those named cannot be assembled without manifest injury to the service.' Such addition, however, though usual, is not necessary, and Its omission will affect In no manner the validity of the order. The mere fact that less than thirteen are detailed will constitute a sufficient indication of the determination by the convening officer, in his discretion, that a greater number can not in fact be assembled without the prejudice to thfe service contemplated by the Article." SUPEBNTIMEIIABY MEMBEBS. It remains to notice a practice, which at one time prevailed in our service, of detailing, with a court of thirteen, 103 (and sometimes with a court of lesser number,) one or more additional officers as " supernumeraries," whose purpose was to supply the places " 1 Oplns., 299, 300. » 12 Wheaton, 34. "See 2 Opins. Atty. Gen., 535; 6 Id., 511; Wooley o. D. S., 20 Law Rep., 631, and Am. S. P., M. A., vol. IV, 850'; G. O. 4, Mil. Div. Atlantic, 1874; alao Clode, (M. L.,) 123. And see the recent case of Mullan v. U. S., 140 D. S., 245. " See O'Brien, 228. The early case of Mills «. Martin, 19 Johns., 26, (1821,) is, in effect, contra. But the provision under consideration had not then received the interpretation subsequently given it in Martin v. Mott. Par. 1002, A. R., now de- clares "A decision of the appointing authority as to the number that can be assem- bled without manifest injury to the service is conclusive." 80 MILITAKY LAW AND PRECEDENTS. of such original members as might be excluded on challenge, or whose seats might be vacated by absence, — thus keeping the court always up to the masd- mum. These oflScers took their seats with the courl and were sworn with it, were subject to challenge, were present during the trial and permitted to take part in discussions on interlocutory questions but not to vote thereon, and retired — if not previously becoming full members — when the court was finally cleared to deliberate upon its findings and sentence.'" This practice, however, had no statutory sanction, and, In substantially adding members with limited indeed but material powers to the maximum of thirteen, was in fact in contra- vention of the Article of war. It has been disused In our service for some fifty years," though in the British it still subsists in a dIfEerent form." '^ See De Hart, 88 ; Macomb, 15 ; O'Brien, 226 ; Ben«t, 28, 87 ; Coppfe, 46, 54. Super- numeraries are constantly detailed with general courts in the early Orders of the War Department, &c., especially from 1809 to 1836. In each of the cases of Gens. Hull, Wilkinson and Gains, three supernumerary members were named In the original detail. Supernumeraries were also detailed in the navy, and for courts of less than thirteen members. See 1 Opins. At. Gen., 698. ""The paragraph, (§ 237,) of the Army Regulations of 1841, directing the detailing of "one or more supernumeraries" with courts of thirteen members, . does not appear to have been repeated in any subsequent issue. A comparatively recent, though isolated case, is published in G. O. 9, Dept. of the Mo., 1862, of a general court attended by a supernumerary, who, upon a vacancy occurring on the trial of an officer, took a seat as a member. °° The British law authorizes the convening authority to detail, with the regular members, " such waiting offUiera as he thinks expedient," with a view " to provide for casualties or for the case of challenges being allowed," Rules of Procedure, S 17 (D,) 25 (G,) Simmons, $§ 427, 526. CHAPTEE VIII. THE JURISDICTION OF GENERAL COURTS-MARTIAL. 104 The subject of the jurisdiction of general courts-martial will be con- sidered under the following heads: — I. The Place or field over which such jurisdiction extends or within which it may be exercised; II. The period of Time to which its exercise is limited ; III. The Persons who are subject to It ; IV. The Offences which it embraces. I. THE PLACE OR FIELD OF JURISDICTION. IT INCLUDES THE ENTIRE UNITED STATES. The jurisdiction of general courts-martial is coextensive with the territory of the United States. That is to say, a general court assembled at any locally within that territory may legally take cognizance of an offence committed at any other such lo- cality whatever ; such a court, unlike a civil tribunal, not being restricted in the exercise of its authority to the limits of a particular State or other district or region. While it will in general be more for the interest and convenience of the service to bring an accused officer or soldier to trial at or near the place of his offence, he may, with equal legality, be tried by a court convened, (by competent authority, ) in any other part of the United States.* This is a general principle, nor is its application limited to cases in which the court is convened by a com- mander whose command is conterminous with the federal domain — as the Presi- dent as Commander-in-chief, or the general commanding the army. A court or- dered by a department commander within his department, for the trial of 105 an officer or soldier of his command, may take cognizance of the case though the offence or offences may have been committed in any other de- partment or departments. It may be added that the question, whether an of- fence was or not committed at a place over which exclusive jurisdiction has been reserved or ceded to the United States, can affect In no respect the jurisdiction of the military court before which such offence is brought for trial. EXTENDS TO BEGION OF MILITARY OCCUPATION IN WAR. Further, such jurisdiction extends to the places or territory held or occupied by our armies when invading the domain of a foreign nation with which we are at war. A court-martial, whether assembled in the foreign territory or in the United States, will have jurisdiction of military offences committed within such places equally as if committed on our own solL' >See Digest, 322. ' " Wherever our army or navy may go beyond our territorial limits, neither can go beyond the authority of the Piesident or the legislation of Congress." Chase, C. J., in Ex parte Milligan, 4 Wallace, 141. And see 5 Oplns. At. Gen., 58 ; Coleman v. Ten- nessee, 97 U. S., 515, 516. In the latter case the law was applied to offences committed by soldiers of our army when In occupation of insurrectionary districts during the late war, and it was held that, (as in the case of an army lawfully marching through the territory of a foreign country — see post,) our army was then exempt from amenability to the local courts and subject only to the jurisdiction of its own military tribunals. 440593 0-42-6 81 82 MILITARY LAW AND PKECEDENTSv ETFECT OP PRINCIPLE OF EXTERBITOBIALITY. Such jurisdiction extends also to offences committed by our officers or soldiers witliin ttie lines or in the neighborhood of our armies, when in the transit, by the permission of its government, through the domain of a foreign nation with which we are at peace. This on the principle of international law known as "exterritoriality," under which when the armies of one nation are privileged to enter or pass through the territory of another friendly nation, the laws of the former are deemed to continue to apply to its forces equally as if the same were within their own country.' Such, for example, would be the legal status of our troops 106 when permitted by the government of Mexico to cross the frontier in carrying on hostilities against Indians.' CASES OF OFFENCES COMMITTED IN FRIENDLY FOREIGN TERRI- TORY, ENTERED WITHOTTT AUTHORITY. A status less clearly de- fined in law is that of our military forces when Induced, in pursuit of Indians or marauders, or for other purposes, to enter the territory of a foreign power with which we are at peace, without its authority. While such an entry of an armed body would be per se unlawful," it is nevertheless the opinion of the author that military offences committed by any of such forces on the foreign soil would properly be cognizable by courts-martial convened within the United 107 States, provided the offender at the time of the offence was a member of an organized detachment or other force under military command and discipline. For while a refusal to cross the boundary under the circumstances might not constitute a disobedience of a " lawful command " in violation of the 21st Article of war, it does not follow that an act of insubordination, neglect, or disorder, or an act of desertion, committed after the passing of the frontier in obedience to orders, would not be cognizable and punishable as a military » " This privilege Is extended to armies In their permitted transit through foreign ter- ritory," and includes the right " of exercising military discipline on the officers and sol- diers. • • * When the transit of troops is allowed, it is apt to he specially guarded hy treaties." Woolsey, Int. Law, 64 ; Vattel, 3., 7 § 130. And see The Exchange, 7 Craneb, 139; Coleman v. Tennessee, 97 U. S., 515. * There has in tact existed for some years a formal " provisional " agreement between the governments of the United States and Mexico, stipulating for the " reciprocal crossing In the unpopulated or desert parts of the international boundary line, hy the regular federal troops of the respective governments, in pursuit of savage hostile Indians." This agreement, originally made in July, 1882, (see G. O. 91, 118, of 1882,) to continue in effect for one year, has been since repeatedly renewed. The last form of the agreement is dated Nov. 25, 1892, and is to continue in force not beyond one year. See it published in G. O. 85 of Dec. 22, 1892. Of this agreement the only portion that need be cited In this connection is the following : " Art. VII. The abuses which may be committed hy the forces which cross into the territory of the other nation shall be punished by the government to which the forces belong, according to the gravity of the ottence and in conformity with Its laws, as If the abuses had been committed in its own territory, the said government being further under obligation to withdraw the guilty parties from the frontier." ^ It would, in the first Instance, be unlawful for any subordinate commander to direct such an invasion or command the invading party, except under orders emanating from the highest authority. In Com. v. Blodgett, 12 Met., 84, 90, the court say : — " Nothing but the sovereign power of the State, by a previous order directing such invasion, or by a subsequent ratification when done in its name, will warrant such Invasion, and excuse the subordinatos engaged in it. • • • Such act is a high prerogative of sovereignty and the necessity of it must be judged of, and the warrant for it must be given, by the express command or direction of the sovereign authority." Note, in this connection G. O. 97 and 100, Dept. of the East, 1864. In the former Order, military commanders near the Canadian boundary were instructed by General Dix to cross the same where necessary in pursuit of marauders, and pursue, capture and bring them within the United States for trial and punishment. In the latter Order, it was announced that this instruc- tion had been disapproved by tlie President and was accordingly revoked. MILITARY LAW AND PKBCEDENTS, 83 offence equally as If committed within our own territory. Indeed, that It would be so cognizable can scarcely reasonably be questioned.' OFFENCES COMMITTED lU A FOREIGN COTTNTBY WHEN THE OFFENDER IS NOT PRESENT IN A MILITARY CAPACITY. Thus an officer or soldier of our army committing, in a foreign country, an act which, if committed at home, would constitute an offence against our military code, would in general be amenable to trial therefor, by court-martial, on his return, provided that when he committed it he was within the foreign territory in a military capacity. But it not present there in a military capacity — as where he had passed the frontier for private business or amusement, or on a social visit, or for other personal reason, or was there as a deserter from our army — his amenability to trial by a court-martial in his own army for an offence com- mitted would depend upon the nature of the offence itself. A crime or dis- order committed against an inhabitant of the country could ordinarily scarcely be cognizable under the 62d Article as prejudicial to military discipline, 108 or otherwise than according to the local law. But for an act which at home would constitute conduct unbecoming an officer and a gentleman, an officer offending would In general remain as liable to trial under Art. 61 as If the offence were committed within the United States. Thus it has been held that an officer of our army was liable under this Article to trial by court- martial In Texas for the offence of exhibiting himself in a drunken condition at a public entertainment in Mexico.' The status of amenability of the officer or soldier under the circumstances would thus be analogous to that of an officer' or soldier absent on leave or furlough within his own country,* or while held as a prisoner of war by the enemy." The question of jurisdiction as affected by the 64th Article. This Article provides as follows : " The officers and soldiers of any troops, whether militia or others, mustered and in pay of the United States, shall, at all times and in all places, fie governed by the articles of war, and shall be subject to be tried by courts-martial." This enactment has recently been construed as conferring upon courts-martial by the term — " in all places," a jurisdiction over offences committed by officers or soldiers of the army in foreign countries, and thus to constitute authority for the trial, by a court-martial convened in our own territory, of a military ' In the case of Pvt. Joseph Lee, convicted by a general court-martial In Texas of man- slaughter, consisting in the homicide of a sergeant of the detachment while on a scout within Mexico, — in which the proceedings and sentence were approved by Gen. Ord In G. C. M. O. 17, Dept. of Texas, 1877, — it was held by the Secretary of War, June 23, 1877, that the court had Jurisdiction of the case. The ruling contra, by a department commander in a case published in G. C. M. O. 35, Dept. of the Missouri, 1872, is not regarded as sound. The point may here be noticed, though not as a matter necessarily affecting jurisdic- tion, that our military authorities can have no authority to enter a foreign country for the arrest there of a military offender who has escaped from the United States. Thus, in G. O. 119, War Dept., 1863, an officer of volunteers is dismissed by the President " for violation of the sovereignty of a friendly foreign State, in arresting a deserter from the TJ. S. forces and bringing him away from within the boundaries of Canada." ' See Digest, 331. * See G. C. M. O. 14, Dept. of Texas, 1888 ; also remarks upon this Article In Chapter XXV, post. It may be observed, however, that, whether or not the offending officer or soldier were within the foreign territory with or without authority from his proper military su- periors, woulfl be immaterial : his status of amenability to our jurisdiction for offences committed in that territory would not be affected by the circumstances of his having been there with or without a leave of absence or pass, or other permission. ' See post — " Jurisdiction during Absence on leave or as a Prisoner of war." 84 MIUTABY lAW AND PEECBDBNTS. ofEence committed abroad.'" With due deference to its source, this construc- tion can but be regarded by the author as a forced one and not war- 109 ranted either by the context or history of the Article. It is considered that this Article is a declaratory provision intending no more than simply to affirm the general rule of amenability to military law of any forces or detach- ments, such as militia or marines, who may be serving with the army in time of war, rebellion, &c., assimilating them to the latter In respect to discipline and jurisdiction. To the army itself, as such, the Article, it is believed, is not intended to apply, but only to the contingents which, under the Constitu- tion and laws, may be employed with it in the U. S. service on particular occa- sions. Tills is deemed to be quite clear from the language of the original pro- vision, whicb occurs first in Art. 1, Sec. xvii, of the Articles of 1776 and is repeated in Art. 97 of the code of 1806. Here, after the words—" in all places," is added—" when joined or acting in conjunction toith the regular forces of the United States." Nor, in the view of the author, does the fact that this part of the Article is now omitted modify or affect its import, since these additional words were surplusage merely and doubtless omitted for that reason. It would only be when militia, marines, &c., were serving in connection with the army that they would properly be amenable to the jurisdiction of army courts, and, by the omission, the Article has been merely simplified without any change of meaning. The sound conclusion is thus considered to be that the Sixty-fourth Article • has, in fact, no larger or other significance or scope than as an enunciation of a general principle as aforesaid, and accordingly affects in no manner what- ever the question of the amenability of officers or soldiers of the army for offences committed in foreign countries. This Article indeed, as being de- claratory of the law as enacted in other statutes," might well be dropped as superfluous upon a revision of the existing code. II. THE TIME WITHIN WHICH JURISDICTION IS TO BE EXERCISED. AS AFFECTED BT THE LIMITATION OF ART. 103. If the jurisdic- tion of a general court-martial can properly be regarded as controlled in its exercise by any general rule of limitation as to time, such general rule 110 is that prescribed in the 103d Article of war. This Article, (as amended by the Act of April 11, 1890,) prescribes that for all offences, except " desertion in time of peace and not in the face of the enemy," an officer or sol- dier shall not (unless meanwhile withdrawn by absence, &c., -from the juris- diction) be liable to trial by general court-martial, where the offence " appears to have been committed more than two years before the issuing of the order for such trial." In the excepted case of desertion, it is provided that the party (unless meanwhile absent from the United States) shall not be so triable where, at the time of his arraignment, more than two years have elapsed since the end of the term for which he enlisted. But the question here arises whether this Article is to be viewed as a pro- hibitory restriction upon jurisdiction, or merely as providing a defence to be taken advantage of by special plea. '"This ruling was one made by the Acting .Tudge .\dvocate General, in January, 1891, in a case of an ofScer who, having committed in Mexico what would be a military of- fence under our Art. 61, was held triable therefore by a court martial subsequently convened in the Department ot Texas, not only on general grounds but also hy the authority of this Article. See Digest, 331. " As the Act of Feb. 28, 1795, u. 36, s. 4 ; the Act of July 29, 1861, c. 25, s. 3 ; Sees. 1621, 1644, Rev. StS. MnJTABT LAW AITD PRECEDENTS. 85 VIEW OF ATTOBITEY GENEBAI. WIRT. It was held at an early date, (1820,) by Mr. Wirt," in construing this Article, that the limitation thereby prescribed yas absolute in all cases and could not be waived. The reason as- signed for this opinion was in effect that the Article was an enactment based upon considerations of public policy, being intended not solely for the benefit of the accused, but to secure that prompt and certain prosecution of military oftences which is essential to maintain the discipline of the service; and that therefore it was to be regarded as prohibitory not only upon the United States but upon the accused also. The view of Mr. Wirt, that the limitation was not waivable, was aflSrmed by later Attorneys General," and for a considerable period was recognized in the War Department as established law " And it was held by the Judge Advocate General," and subsequently by the Attorney 111 General," that an accused could not, by a plea of guilty at the trial, any more than by previously requesting," or by consenting without objection, to be tried, waive the limitation and withdraw the case from the application of the Article, where It appeared from the charge that the offence had been com- mitted more than two years before the ordering of the court. BTTUNG OF THE V. S. CIBCTTIT COTJKT. If this view as to the effect of the Article is the correct one, the subject of the limitation is properly to be considered in the present Chapter. But though this view was apparently that taken by the U. S. District Court for the Southern Dist. of New York, in 1880, In Davison's case," the judgment in that case was, in 1884, reversed on appeal in the V. S. Circuit Court, Second Circuit," where it was in substance held that the limitation of Art. 103 was not a jurisdictional objection but a " matter of defence ; " the court here adopting the ruling which had been made at San Francisco in the previous year, in Bogart's" and White's Cases," by the Cir- cuit Court for the Ninth Circuit. In these cases, (and subsequently in Zimmer- man's Case," In the same Circuit,) the courts, in effect through not In terms, overrule Air. Wirt's opinion, and treat the military statute of limitations as the United States' and State statutes of limitations relating to crimes are ordi- narily treated, vis. not as a restriction upon the powers of the court, but as a provision solely or mainly for the benefit ot the accused, to be taken advantage of by him at his option, by way of defence In the form of special plea, or on the general issua These rulings are followed in the War Department, and have now apparently settled the law upon the question Involved. In view of this conclusion, the subject of the application and operation of the provisions of Art. 103 has been incorporated in Chapter XVI, in treating of Pieas. TERM OF jrORISDICTION IN GENERAI.. The term of time dur- 112 ing which an officer or soldier continues within the jurisdiction of a " 1 Oplns., 383. Compare this view with the converse view expressed by him, in 1 Oplns., 233, as to the waiver of the benefit of the provision of Art. 102, a point remarked upon in Chapter XVI. — " Waiver of the right to plead former trial." " 6 Opins. At. Gen., 239 ; 13 Id., 463 ; 14 Id., 267-8 ; 16 Id., 173. "See the opinion, as adopted by the Secretary of War, of Judge Advocate General Holt, in the case of Brig. Gen. Dyer, Chief of Ordnance. Proceedings of Court of In- quiry, Part II., pp. 612-614. " See Digest, 12. « 16 Oplns., 17. " See Gen. Dyer's Case, ante. " In re Davison, 4 Fed., 507. " 21 Fed., 618. "Jn re Bogart, 2 Sawyer, 397. *• In re White, 9 Sawyer, 49, 17 Fed., 723. >* In re Zimmerman, 30 Fed., 176. 86 MtLITAEY LAW AND PRECEDENTS. court-martial is the term between the time of his entering the military service by acceptance of appointment or commission, or by enlistment or muster in, and the time of his leaving it by resignation, dismissal, discharge, or death. This subject will be more fully treated in this chapter, under the later head of — " Beginning and End of the Personal Amenability." AS APFECTED BY THE CONTINITANCE OF WAB. While the termina- tion of a state of war does not, as such, affect the jurisdiction of a court-mar- tial, as It does that of a military commission — a tribunal whose action is de- termined by the existence and continuance of war — there are yet cases in which, by the express terms of a statute, or by implication from Its terms, the Jurisdiction of a court-martial over certain specific ofCences is restricted to the period of war. Thus the 58th Article of the code expressly jpakes the offences therein enumerated punishable by sentence of general court-martial only in time of war, rebellion, &c., and If In any case the war which prevailed at the commission of the offence has ended " before the same is actually brought to trial, the court will not be legally competent to take cognizance thereof under this Article. Similarly, it has been held that Sec. 1343, Rev. Sts., relat- ing to the offence of the spy, inferentlally limits the trial by court-martial of a spy to the period of the duration of the war, &c., so that if not brought to trial before the war Is terminated, he cannot be tried at all." The term " war," as employed here and elsewhere in this treatise, is to be understood as including not only foreign or international war, but also civil war, as well as a state of active hostilities with an Indian tribe. III. THE PERSONS SUBJECT TO THE JURISDICTION. CLASSIFICATION. General courts-martial, created and empowered as they are by express statute, can exercise jurisdiction over such persons and offences only as are constitutionally brought by statute within their cognizance. 113 By the articles of war and other statutes certain classes of persons are rendered, or declared to be, amenable to the jurisdiction of courts-martial, as follows: — I. The Army of the United States; II. The militia when called into the service of the United States ; III. Officers and soldiers of Marines when detached for service with the Army ; IV. Certain civilians subjected to military discipline in time of war ; V. Certain other civilians. I. The Army of the United States.^" In this designation are embraced the following : — 1. The Standing or " Regu- lar " army ; 2. Volunteers ; 3. Drafted men. 1. THE BEGTTLAR AEMY. The constltHents of this army are the officers, soldiers and others specified in Sec. 1094, Rev. Sts., and its amendments, ^•i^.. certain general officers and their aids; certain officers and (enlisted men of the staff departments; certain officers and enlisted men of the enumerated regi- ments of artillery, cavalry and infantry; certain enlisted men of the hospital corps and " general service," or unattached to regiments, &c. ; the " army service men of the quartermaster department;" a force of enlisted Indian scouts, the ^As to what constitutes a legal termination of a state of wav, see CUaptei- XXV. — Fifty-Eighth Article. ^ In re Martin, 45 Barb., 142 ; Wells on Jurisdiction, 077. 20 The President, though commander-in-chief, Is not a part of the army or a. military person. lu Parker v. Kaughman, 34 Ga., 136, It was held that the President of the " Confederate States," being commander-in-chief, was " in the army ;" but this was prob- ably a misconception. MILITARY LAW AND PEECEDENTS. 87 corps of professors and cadets ™ of the Military Academy, and the officers and enlisted men of the retired list."' The total enlisted force, exclusive of the "general service" and the hospital corps, is fixed by statute at 25,000 men. The aggregate of the entire army, officers and enlisted men, (including the officers and men of the retired list, amounting to 1,562,) is given in the Army Register for 1895 as 29,838. These members of the regular array of whatever grade are all military persons : there exists no longer in our service what 114 was once styled the "civil branch" of the army. Our surgeons, pay- masters, chaplains, storekeepers, &c., are all now commissioned officers in the same manner as are the officers of the line, and, whether or not having com- mands, are, equally with the latter, military officers. The professors of the Academy, though without rank, are, as indicated in the foregoing Chapter, commissioned officers ; and even the cadets, whose status was for a long period not clearly defined,'" are now held to be " inferior officers, appointed though not commissioned." ^ In time of peace, the " regular " army ordinarily constitutes the entire Army of the United States. 2. VOLTTNTEERS. In time of war the regular contingent has commonly been supplemented by a force of volunteer troops : in the late war Indeed the volunteers composed by far the greatest portion of our army. Though in some particulars of its organization assimilated to the militia, this force is in fact as well as in law quite distinct therefrom. Originated under the constitu- tional power " to raise, armies," not under the power " to provide for calling forth the militia," it is also distinguished from the militia in the persons com- posing it, in the period of their service, and in the duties upon which they may be employed. The militia is composed of citizens between 18 and 45 years of age, (Rev. Sts., Sec. 1625,) their term of service cannot exceed nine months, (Id., Sec. 1648,) and they cannot be used for the invasion of a foreign country or for military service abroad.'" The employment of volunteers is not limited by any of these restrictions. That this force, though differing from the regu- lars in that it is resorted to for a temporary purpose," is, equally with the latter, a part of the Army of the United States, has, (as indicated in the last Chapter,) been expressly held and adjudged.^ 115 3. DRAFTED MEN. Through the necessities of the government there came to be added, during the recent war, to the Army of the United States a further body of drafted men, who entered the military service not as volunteers but compulsorily, under the provisions of the Act of March 3, 1863, c. 75, and the succeeding statutes in amendment, &c., of the same. This is the first and only instance in our history in which the regular army has been 2° That Cadets have always been a part of the Army, see Morton v. U. S., 112 U. S., 4. " That retired ofScers are a part of the army and so triable by court-martial — a fact indeed never admitting of question — is adjudged in Tyler v. TJ. S., 16 Ct. CI., 223 ; Id., 105 U. S., 244 ; Runkle i). TJ. S., 19 Ct. Cl„ 396. And see Hill v. Territory,. 2 Wash. Ter., 147. By -the Act of Feb. 14, 1885, enlisted men of the army and marine corps were made eligible to retirement after thirty years' service. '^ As to the status of the Cadets as viewed by the Attys. General, see 1 Oplns., 276, 469 ; 2 Id., 251 ; 7 Id., 323 ; 16 Id., 611. That they are liable to trial by garrison, (as w^ell as by general,) courts-martial was held by Wirt, (1 Opins., 469,) and aflBrmed by Cushlng, (7 Id., 323). =« Babbitt V. D. S., 16 Ct. CI., 202. ^''McCall's Case, 5 Philad., 259. 3> 7 Opins. At. Gen., 621. s2 Burroughs 'O. Peyton, 16 Grat., 483 ; Kerr v. Jones, 19 Ind., 351 ; Wantlan v. White, Id., 470 ; Digest. 60, 424, 478. And see 3 Oplns. At. Gen., 696 ; 6 Id., 484 ; 7" Id., 621. 88 MILITAEY LAW AND PRECEDENTS. recruited by conscription." Owing to the defects in the operation of the exist- ing militia systems of the States," and to the fact that the materiel of the militia was limited to citizens," the measure of adding to the military strength of the country by calling out the militia had, notwithstanding the authority to enrol this force conferred upon the President by the Act of July 17, 1862, proved quite inadequate to the emergencies of the period. The Act of 1863 was therefore passed, by which all able-bodied citizens of the United States and all aliens who had declared their Intention to become citizens, between the ages of twenty and forty-five years, were constituted "national forces," and re- quired to be enrolled subject to draft by the United States authorities. This Act did not repeal that of 1862, but being " more matured in its details than any system that could have been organized for the militia,"" as well as more efficient and comprehensive in its operation, was resorted to almost exclusively in lieu of the former statute." The Act of 1863 and the system thereby In- augurated have received an especially careful examination in McCall's Case" and the leading case of Kneedler v. Lane,"" In which the Act was held 116 to be a constitutional exercise of the power of Congress " to raise armies," and the troops raised by draft under the machinery which it provided were held to constitute a part of the Army of the United States." As such they were of course subject to trial by court-martial." GENEE.AI. PltOVISION OF SEC. 1342, REV. STS. Thus defined, the Army of the United States, whether composed solely — as in time of peace — of the regular army, or — as in time of war— of this and one or both of the other contingents named. Is, as a whole, made subject to the jurisdiction of courts- martial by this Section, which, in prefacing the military code, declares : " The armies of the United States shall be governed by the following rules and arti- cles." Certain particular classes — as the retired officers, by Sec. 1256, Rev. Sts. — are made specifically so subject, but such provisions are unnecessary in view of this general enactment. The opinion once expressed by Atty. Gen. Wirt," to the effect that no military persons or forces could properly be treated as subject to the articles of war, unless so subjected In specific terms by the separate statute making them a part of the army, if ever sound, certainly cannot now be maintained In view of the comprehensive terms of Sec. 1342. Now, whenever any addition is made to the army, the person or force added will, without any such express provision " Drafts of State troops were resorted to during the Revolutionary war. See 2 Jour. Cong., 458-9 ; 3 Do., 38. An Act of June 30, 1834, refers to "draughted militia " as in service against Indians on the frontier. »* McCall's Case, 5 Philad., 267. It was anticipated by Hamilton in the Federalist (p. 117) that the militia could not be depended upon as an adequate force for war. And see Com. v. Barker, 5 Bin., 429; U. S. v. Blakeney, 3 Grat., 417. ■" 6 Opins. At. Gen., 484. " McCall's Case, 5 Philad., 268. " Subsequently to its passage there was but one call for militia, (limited to four States,) — that by proclamation of June 15, 1863. « 5 Philad., 259. "•45 Pa. St., 238. So Jenkins, J., of the Supreme Court of Georgia, (November, 1862,) decided the Confederate conscript Act to be constitutional, as l>eing within the power to raise armies as distinguished from the power to call out the militia. VI. Kebellion Record, 15. "That conscripts are not militia but a part of the Army, see also Burroughs v. Pey- ton, 16 Grat., 483 ; Cooley, Prins. Const. Law, 89. "Instances of "drafted men," tried as such by general court-martial for desertion in failing to report under the drafc, &c., are especially frequent In the G. O. of the Depts. of the East, of Pennsylvania, of the Susquebanna and the Monongahela, and of the Middle Dept., from 1863 to 1865. *2 1 Opins., 277-9. MILITAEY LAW £SX) FBECEDENTS. 89 In the statute, at once come within the general application of this Section, and be thenceforth subject to the military jurisdiction. BEGINNING AND END OF THE FERSONAL AMENABILITY — GEN- EBAL RTTLE. Here, as especially applicable to officers and soldiers of the army proper, may suitably be considered the subject of the duration or con- tinuance of the amenability of the person to the military jurisdiction. It Is the general rule that the person is amenable to the mili- 117 tary jurisdiction only during the period of his service as an officer or sol- dier. Thus, in the case of an officer, the jurisdiction commences with the acceptance of his appointment or commission," or, where originally appointed by State authority, with his muster, (or re-appointment,) into the service of the United States, and ends with his death, the acceptance of his resignation, his dismissal," &c., or — if a volunteer oflBcer — his discharge or mustering out, &e. In the case of a soldier, it begins with his enlistment " or muster Into 118 the service, and ends with his discharge or muster-out." In other words, the general rule is that military persons — officers and enlisted men — are subject to the military jurisdiction, so long only as they remain such ; that when, in any of the recognized legal modes of separation from the service, they cease to be military and become dvil persons, such jurisdiction can, constitutionally, no more he exercised over them than it could before they originally entered the army," or than it can over any other members of the civil community. " The acceptance, almost uniformly indicated by an express ofBcial communication to that effect, may, it has been ruled by the Attorney General, be evidenced by the officer's taking the oath of office required by Sees. 1756 and 1757, K. S., which act — it is held — will constitute a sufficiently formal and legal acceptance. 19 Opins., 283. In the case of an officer appointed during a recess of the Senate, but whose appoint- ment is not subsequently acted upon and confirmed thereby, the amenability continues from his acceptance of his appointment to the last day of the session of the Senate next succeeding. (Const., Art. II., sees. 2 & 3 ; 4 Opins. At. Gen., 30.) The appointment, how- ever, of an officer appointed during a recess may be recalled by the President without being submitted to the Senate, (8 Opins., 380,) and the appointment of any officer may be withdrawn after it has been submitted to the Senate, but before It is finally acted upon. In such cases the jurisdiction would cease with the recall or withdrawal. **The early English ruling in Sackvllle's Case, (1760,) to the effect that an officer, after having been dismissed the service and become a civilian, could, at his own request or with his consent, legally be brought to trial by a general court-martial, has not been followed in the later English law, and has never been adopted in our own. (See Digest, 323.) In our practice no trial of a dismissed officer has ever been had, except by the authority of some express statutory provision, such as the last clause of the 60th Article of War. In the author's opinion, any such statute must necessarily be unconstitutional, and such trial inoperative. See post. An officer who has been dropped from the rolls for desertion under Sec. 1229, Kev. Sts., is assimilated to a dismissed officer in that he cannot thereafter be made amenable to trial by court-martial. See G. C. M. O. 16, War Dept., 1871. An officer of the army whose office has been vacated by operation of law, as under Sec. 1222 or 1223, K. S., ceases of course to be so amenable. « It should be noted that it is not necessary that the enlistment be a formal one, but that receipt of pay, performance of service as a soldier, &e., may be equivalent to, or constitute evidence of enlistment. See Digest, 384-5 ; Grant i). Gould, 2 H. Black, 69 ; Tytler, 111 ; Prendergast, 39 ; Clode, M. L., 93 ; also, post, chapter XXV — Forty-Seventh Abticle. " The discharge must of course be due and legal, not fraudulent. See 16 Opins. At. Gen., 349 ; Circ. No. 4, (H. A.,) 1888. "Digest, 323-324. And see the principle, that the jurisdiction ends with the dls- charge^whether honorable or under a sentence — recognized in the following General Orders- G. C. M. O. 4, 16, War Dept., 1871; G. O. 42, Dept. of the Bast, 1865; Do. 43 Middle Dept., 1865; Do. 90, Dept. of Pa., 1865; Do. 101, Dept. of Va., 1865; Do. 22, Dept. of the Mo., 1866 ; Do. 23, Dept. of Dakota, 1871 ; Do. 55, Dept of Cal., 1873 ; and in 5 Opins. At. Gen., 58-9. 90 MILITART LAW AND PRECEDENTS. JXTRISDICTIOIT AFTER END OF TEB3I OP SERVICE BUT BEFORE DISCHARGE. While the soldier, since he cannot discharge himself, is in general entitled at the expiration of his term of enlistment to be forthwith dis- charged in the form and by the authority prescribed by the 4th article of war," there are yet cases where, for offences previously committed, he may be held for trial by court-martial for a period after his term Is completed, but before actual discharge, his right of discharge being meanwhile suspended. These cases are as follows : 1. Cases of deserters under Art. 48. This Article, in providing that — " Every soldier who deserts the service of the United States shaU he liable to serve for siwh period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlistment," goes on to declare — " and such soldier shall be tried by a court-martial and punished, although the term of his enlistment may have elapsed previous to his being apprehended and tried." The effect of this Article, (which is fully considered In Chapter XXV,) is to continue the jurisdiction of a general court-martial over a deserter, without re- gard to the duration of his term of enlistment, provided of course the statutory limitation of Art. 103 has not taken effect. 119 It need hardly be added that here, as in other cases of soldiers liable to trial, the Government may by its own act, i. e., by a formal discharge of the soldier, (under Art. 4,) terminate his amenability under the Article." 2. Deserters whose enlistment was Illegal. It has been ruled in a series of adjudged cases'" that, even if an enlistment be voidable for Illegality, (as in the instance of a minor enlisted under the legal age,) yet if, after the enlist- ment, the soldier becomes a deserter, he may, upon arrest, be held, tried and punished for his offence, and an application by a parent for' his discharge made to £he Secretary of War, or on habeas corpus to a U. S. court, will not properly be granted. In such cases the military jurisdiction is sustained for the reason that the interest of the public in the administration of justice and maintenance of military discipline is paramount to the right of the individual. 3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now settled law, in regard to military offenders in general, that if the military jurisdiction has once duly attached to them previous to the date of the termination of their legal period of service, they may be brought to trial by court-martial after that date, their discharge being meanwhile withheld. This principle has mostly been applied to cases where the offence was com- mitted just prior to the end of the term. In such cases the interests of dis- cipline clearly forbid that the offender should go unpunished. It is held there- fore that if before the day on which his service legally terminates and his right to a discharge is complete, proceedings with a view to trial are commenced against him, — as by an arrest or the service of charges, — the military juris- diction will fully attach, and once attached n»ay be continued by a trial by court- martial ordered and held after the end of the term of the enlistment of the accused. The leading adjudication on this point is that of the Supreme Court of Massachusetts in In re Walker,"^ (1830,) — a case of a seaman in the navy, but the ruling in which is equally applicable to soldiers of the army. 120 Here the court, in adverting to the injurious results that might ensue "DIGEST, 20. And see U. S. v. Travers, 2 Wheeler, C. C, 509, (Story J.;) Prender- gast, 42 ; also, post. Chapter XXV. — Fourth Article. " Digest, 43, 324. " See cases cited In Chapter XXV., under Third Arttclb, where this suhject is fully treated. ^ 3 Am. Jur., 281. And see DiQBaT, 324-e. MILITARY LAW AND PBECEDENTS. 91 were such a person permitted to be guilty with Impunity of grave offences on the last days of his engagement, adds:— "It is true that seaman Is not bound to do service after the expiration of his term of enlistment. But within that term he is bound to observe the rules and regulations provided by law for the government of the navy, and is punishable for all crimes and of- fences committed In violation of them during his term of service. * * * in this case the petitioner was arrested or put in confinement, and charges were preferred against him to the Secretary of the Navy, before the expiration of the time of his enlistment ; and this was clearly a sufficient commencement of the prosecution to authorize a court-martial to proceed to trial and sentence, notwithstanding the time of service had expired before the court-martial had been convened." This case, since affirmed in principle by other rulings," has always been regarded as controlling authority in the military practice. JTJB.ISDICTION' DUBING ABSENCE ON LEAVE OB AS A PBISONEB OF WAB. Here should be noticed a class of cases in which an officer or sol- dier, though fully in the service, is, In a measure, not subject to the military jurisdiction. Thus, when an officer or soldier is duly absent from his post or station upon a leave of absence or furlough, he ceases for the time to be subject to the orders of his commander," or indeed to any orders except — In the event of some public exigency or grave occasion requiring his services — an order discontinuing his leave and directing him to return to his regiment, &c., or otherwise disposing of him as the public interest may require. During the pendency of his 121 leave, therefore, he cannot well be guilty of a breach of the discipline of the command from which he is absent, or of a neglect of duty, or dis- obedience of orders, (except as above Indicated,) or mutiny, or subject .to a mili- tary trial therefor." So, if he commit a crime or offence against the laws of the land, he will not in general properly be triable for the same by a military tribunal, but will be amenable therefor to the civil authorities in the first in- stance and without any previous application by them to a military commander for the surrender of his person under the 59th article of war." But for an act not involving insubordination or failure to comply with a lawful order, but which — ^In case of an officer — is " unbecoming an officer and a gentleman," or — in a case of officer or soldier — constitutes an offence of the class specified In the 60th article of war, the offender, though on leave at the time, may in gen- eral legally be held subject to military jurisdiction and trial. So a prisoner of war, though not subject, while held by the enemy, to the discipline of his own army, would, when exchanged or paroled, be not exempt ^ See U. S. V. Travers, 2 Wheeler, C. C, 509 ; In the matter of Dew, 25 Law Rep., 540 ; In re Bird, 2 Sawyer, 33 ; Barrett v. Hopkins, 2 McCrary, 129, and 7 Fed., 312. In tlie last case, where the term of enlistment of tlie soldier expired after his arrest, but before he was brought to trial, it Is well remarked that — " the jurisdiction of the court havine once attached by the arrest, it retained jurisdiction for all the purposes of the trial, judgment and execution." " " Out of command and out of service are different things in a military sense. An officer on furlough is out of command, absent from the army," though " not out of the service." Cushlng, 6 Oplns., 252. " An officer on leave has, for the time being, no post or duty." 13 Id., 527. And see the recognition of the difference between the status of being on duty and that of being on furlough or leave of absence — in J. R. of April 12, 1866. » Digest 29, 329. He may of course commit and become amenable for a desertion, an offence not unfrequently by soldiers when on furlough. «®a> parte McBoberts, 16 Iowa, 603 ; G. O. 29, Dept of the Northwest, 1864 ; Digest, 62, note. 92 mhjtaby law and precedents. from liability for such offences as criminal acts or injurious conduct committed during his captivity against other officers or soldiers In the same status." EXCEPTIONS TO THE GENEBAL KXTLE— AMENABILITY AETEB DISCTTAKGE. To the general rule above indicated, that the military jurisdic- tion ends with the discharge, &c., of the officer or soldier, there are several exceptions, created by or held to result from certain express statutory 122 provisions. These statutes are the Sixtieth Article of war, and Sees. 1230, 1361, 4824, and 4835, Kev. Sts. The Sixtieth Article. This Article, which is a statute for the punishment of certain frauds, embezzlement and conversion of pubUc property, &c, when committed by military persons, after defining the offences to which it relates, concludes as follows : — " And if (my person, heing guilty of any of the offences aforesaid, tohile in the •military service of the United States, receives his dis- charge, or is dismissed from the service, he shall contimue to be Uable to he atrested and held for trial and sentence hy a court-martial, in the same manner and to the same extent as if he had not received such discharge nor heen dis- missed." A similar Article is contained in the naval code, the original of the statute being a general enactment of March 2, 1863, in terms applicable to army, navy and civilians alike."' The amenability to prosecution and trial created by this provision is not un- limited as to time, but is subject to the restriction 'imposed by Art 103." In- stances of trials ordered under it have been unfrequent in practice."' None have occurred in the army for more than twenty years. Sec. 1230, Rev. Sts. This section, under which an officer once dismissed by order of the President may be allowed a trial by court-martial for the offence for which he was dismissed, has already been considered, in Chapter VI, in treating of the authority of the President to convene courts-martial. As has been seen, it Is a provision originally enacted in time of war, and which, under the existing law, applies only to cases arising in war. Sec. 1361, Rev. Sts. By this statute a further exception to the above general rule has been in effect created in cases of soldiers confined in the Military Prison at Leavenworth, Kansas, under sentences which imposed dis- 123 honorable discharge in connection with confinement, and who, accordingly have been formally discharged in fact, prior to being imprisoned. The section provided that all persons confined under sentence in said prison " shall he liable to trial and pwmshm,ent by court s^martial under the rules and articles of war for offences committed during the said confinement." It applies only to the particular place of confinement mentioned — has no application, for example, to the prison at Alcatraz Island, California."" Trials of discharged soldiers under confinement have been had from time to time under this provision ; the " See an Instance in G. C. M. O. 425, War Dept., 1865, of an officer convicted of an offence of this character committed while held as a prisoner of war at Danville, Va. It need hardly be added that a prisoner of war on parole is subject to the military jurisdiction for such military offences as, under the terms or circumstances of his parole, he may be called to account for. In Gen. Burgoyne's case, it was held that, while he was in the status of a prisoner of war on parole in England, he was not subject to trial for acts committed in America before the capitulation at Saratoga. Simmons § 64. The opposite would probably now be held in a similar case in our army. « See Sees. 5438, 5439, Rev. Sts. The 60th Art. is treated of in Chapter XXV. >» See Chapter XVI. ■* Cases of such trials are to be found In G. C. M. O. 16, War Dept., 1871 - G O 36 Div. West Miss., 1865, Do. 22, Dept. of the Mo., 1866 ; Do. 13, Dept. of the' South' 1867 ; also in G. O. 143, Navy Dept., 1869. ' " Digest, 327 ; G. C. M. O. 55, Dept. of Cal., 1873. MIUTARY LAW AND PRECEDENTS. 93 accused, who are really civiUans, being designated in the proceedings as " mili- tary convict," or " military prisoner." " Sees. 4824 and 4835, Rev. Sts. By the former of these statutes the In- mates of the " Soldiers' Home," who are mostly discharged soldiers of the army, are made " subject to the rules and articles of war in the same manner as soldiers in the army." By the latter, the inmates of the "National Home for Disabled Volunteer Soldiers," who are all discharged officers or soldiers of volunteers employed during the late war, are made similarly subject "in the same manner as if they were in the army." In practice, however, courts-martial are not resorted to for the discipline of these classes of persons." The provisions of the five statutes here specified, so far as they subject civilians to trial by court-martial, are in the opinion of the author, clearly unconstitutional. They will be recurred to later in this chapter, and the ques- tion of their constitutionality specifically considered. 124 JTJBISDICTION AFTEB A SECOND APPOIITTMBNT OB EOTUST- IIEITT. It remains to refer to the effect, per se, of a subsequent ap- pointment or enlistment of an officer or soldier, (once duly dismissed, resigned, &c., or discharged,) upon his amenability to trial for an offence committed prior to such discharge, &c., (and within two years,) but not yet made the sub- ject of a cha^e or trial. Upon this point there is not known to have been any adjudication. Putting out of the question the class of offences, the amenability for which is expressly defined by the 60th article, it is the opinion of the author that, in separating in any legal form from the service an officer or soldier or consenting to his separation therefrom, and remanding him to the civil status at which the military jurisdiction properly terminates, the United States, (while it may of course continue to hold him liable for a pecuniary deficit,) must be deemed in law to waive the right to prosecute him before a court-martial for an offence previously committed but not brought to trial. In this view, a subsequent re-appointment or re-enlistment into the army would not revive the jurisdiction for past offences, but the same would properly be considered as finally lapsed." JXTBISDICTION AS APFECTED BY AMENABILITY TO CIVIL PBO- CEEDINGS — DOUBLE AJSENABILItT. That the offender may be amen- able to a criminal court of the United States or of a State, by reason of such court having concurrent jurisdiction of his offence, or jurisdiction of a civil offence involved in the act committed, or that he may actually have been tried by such court for such offence, cannot affect the exercise of jurisdiction by the court-martial. This principle and its converse — ^that liabiUty to trial or actual trial by court-martial does not affect the liability of the party to civil trial or suit, for a civil offence or cause of action included in the act — were first fully impressed upon the army by the cases (of homicide) of Capt. Howe and Asst Surgeon Steiner," and have been abundantly illustrated in subsequent rulings and Orders. That a double amenability exists in all cases in which 01 Repeated instances of sacb trials, principally for escape, attempted escape, and insubordinate condnct, are to be fonnd In tbe 6. C. M. O., Dept. of the Mlssoarl, since 1875. In Circ. No. 4, (H. A.,) 1888, Is pnbllshed a ruling to the effect that Sec. 1361 does not include offences committed after discharge, but before the commencement of the confinement in the Military Prison. «• But one trial is known to have ever been had. OOiis proceeding — as absurd in fact as it was unwarranted In law — is described In Digbst, p. 329-30. That the inmates of the Volunteer Homes are not in the military service was specifically ruled in U. S. v. Murphy, 9 Fed., 26. And see Digest, 744-5. "Digest, 324, 331, 654. « G. O. 25 of 1840 ; 6 Opins. At Gen., 413, 506 ; 8 Id., 328. 94 MILITARY LAW AND PBECEDENTS. the officer or soldier, (who, in becoming subject to military discipline, has not discharged himself from the liabilities of the citizen,) has, by his crimi- 125 nal act, offended against both the civil and the military code, is now established law." The offender In such a case is two distinct persons, each of whom has committed a distinct offence. Thus where officer or soldier has been guilty of an act of offence having both a civil and a military aspect and quality, as where he has committed a homicide, robbery, battery, forgery, or theft against the person or property of another officer or soldier, or an em- bezzlement or larceny of public money or larceny at a military post, or a. breach of the peace which has also prejudiced military discipline, his trial for and conviction or acquittal of the civil offence by a civil court of the State or of the United States, will not impair or affect the authority of a court-partial to take cognizance of the military crime or disorder, or offence against dis- cipline. Involved in his unlawful act. Where indeed the civil jurisdiction is the first to be initiated, the court-martial cannot properly take cognizance of the military offence till the party is wholly discharged from the civil proce^^ Ing ; " but its jurisdiction remains unimpaired, and may be freely exercised at the proper time, whether the accused may have been acquitted or convicted by the civil court. On the other hand, if military proceedings have been 126 first commenced, and the case has been once duly taken cognizance of by a court-martial, the civil jurisdiction is suspended and the trial by the military court is not subject to be interrupted, and should not be deferred by any process or action of the civil court or authorities." The subject of double amenaMUty will be recurred to and further illustrated later in the work." II. The Militia when Called into the Seevice or the United States. OCCASIOITS OF AMENABILITY. Under the subject of the Oompositioii bf General Courts-Martial, we have seen what the militia is, and have referred to the series of statutes regulating its organization, service, &c. It remains to consider when and how officers and soldiers of the militia become amenable to the jurisdiction of courts-martial of the United States. The statute law and' the judicial decisions recognize two occasions upon which this amenability attaches, viz. (1) when the militia, being actually employed in " Ex parte McRobcrts, 16 Iowa, 606 ; V. S. v. Carr, 1 Woods, 386 ; Ex parte Mason, 105 U. S., 699 ; U. S. v. Casshiel, 1 Hughes, 552 ; In re Esmond, 5 Mackey, 64 ; U. S. v. Barnhart, 22 Fed., 285 ; U. S. v. Clark, 31 Fed., 712, 715 ; People v. Porter, 50 Hun., 161 ; State o. Rankin, 4 Cold., 145 ; State v. Rogers, 37 Mo., 367 ; In. re O'Connor, 37 Wise, 379 ; Oregon v. Colman, 1 Or., 191 ; State v. Brown, 2 Or., 224 ; People v. Shef- fladi Dist. Ct. Utah, Nov., 1893 ; G. C. M. O. 20 of 1869 ; G. O. 28 of 1894, (case of IJeiit. Maney;) G. C. M. O. 50, Dept. of the Mo., 1871; Do. 287, Dept. of the Bast, 1885 ; Do. 12 Id., 1894 : G. O. 78, Id., 1869 ; Do. 69, Id., 1870 ; Do. 52, Dept. of the Pacific, 1865. And compare cases, of double amenahlUty to Federal and State jurisdic- tion for the same act, of Mooro v. Illinois, 14 Howard, 13 ; E0 parte Robinson, 6 Mc- Lean, 355 ; also cases of similar amenability for contempts — as Gen Houston's case, 2 Opins. At Gen., 655 ; State v. Yancey, 1 No. Ca. Law Rep., 519. »3 Opins., At. Gen., 460. In the case of In re Wall, 8 Fed. Bep., 85, a soldier was tried and sentenced by a. court-martial while in the constructive custody of the D. S. District Court, under a writ of habeas corpus; the officer who had him In charge not thinking it worth while to inform the court-martial that the civil proceedings were pending. "This <:onduct," observes the District Judge, "was highly reprehensible." In Capt. Howe's case, (ante,) the action of the court-martial was suspended for more than two years, while the civil proceedings (first initiated) against the accused were pending. " See Clrc. No. 1, (H. A.,) 1886. " See Chapter XVI. — " Plea of Former Trial ;" also Part III. MILITARY LAW AND PEECEDENTS. 95 the federal service, " In time of war or public danger," " commit military of- fences ; and (2) when they comnrit the offence of refusing to be so employed. There Is a marked distinction between the two Instances, from the fact that In the one the militia are a part of the military forces of the United States and subject to the articles of war, while in the other they are no part of such forces and not so subject." 1. AMENABILITY WHEN IN THE U. S. SERVICE. The Constitution, as we have seen, empowers Congress to " provide for governing such part " of the militia " as may be employed in the service of the United States." 127 The Aqt of Feb. 28, 1795, in execution of this power, provided, (sec. 4,) " that the militia employed in the service of the United States shall be subject to the same rules and articles of war as the troops of the United States," and this provision, repeated in substance in the Act of July 29, 1861, is now embraced In Sec. 1644 of the Revised Statutes and in the 64th article of war. The question as to when the militia should be regarded as legally in the employment of the United States was, at an early period, (1820,) settled by the Supreme Court in the leading case of Houston v. Moore," in which, (with ref- erence to the war of 1812,) it was held that the mere calling forth did not constitute an employment of the militia in the public service, and that they did not become " so employed " until their arrival at the place of rendezvous and muster., From this point it was — as determined by the court — that their char- acter was changed from that of State to that of National militia, that they were brought under the command of the President as constitutional "com- mander-in-chief of the army and navy of the United States and of the militia of the several States when called into the actual service of the United States," and "that they became subject to the federal military code." The ruling in Houston v. Moore has been affirmed by subsequent rulings and opinions," in which it is the more distinctly laid down that it is the formal muster into the U. S. service at the place of rendezvous which properly consti- tutes the legal evidence of the commencement of the employment of this force. That the proceeding of muster-in is, regularly, the proper starting point of the service is indeed made quite apparent by the express language of the pro- vision of the Act of July 17, 1862, now incorporated in Sec. 1648 of the 128 Revised Statutes, that " the militia so called shall be mustered in," &c. It is therefore from the muster-in that the amenability under considera- tion properly begins. ™ Constitution — Vth Amendment. ™ In Senate Bill, No. 2537, of March 9, 1892 — " To promote^the efficiency of the Militia," was an excellent provision to the effect that the militia, when called into the service of the United States, " shall he held to he in such service, and every oflScer or enlisted man of such militia who shall refuse or fail to obey such call shall be subject to trial by court martial ;" thus doing away with the undesirable distinction made by the existing law. Compare P. 96, post. It is to be regretted that such provision was not enacted. "5 Wheaton, 20. " It may here be noted that a considerable number of cases of trials of militia oflScers and soldiers by courts-martial during the late war are published in the General Orders of that period. A large proportion will be found in the Orders of the Department of the Missouri ; the Governor of Missouri having been specially authorized by the President, in November, 1861, (by G. O. 96, War Dept.,) to raise a force of State militia to serve during the war within the State. See, (fior example, cases in the following Orders of Dept. of the Mo. : G. O. 31 of 1862 ; do. 10, 15, 84, 94, 98, 104, 112, 141, of 1863 ; also G. O. 38, Dept. of the Tenn., 1863. " Kneedler' 41. Lane, 45 Pa. St., 238; McCall's Case, 5 Philad., 261; Antrim's Case, Id., 278 ; People v. Campbell, 40 N. Y., 135 ; Tyler v. Pomeroy, 8 Allen, 493 ; Story, Const., I 1213 ; 3 Opins. At. Gen., 691 ; 10 Id., 14, 282. 96 MILITAEY lAW AND PBEOEDENTS. The term of liability — Form of discharge. The status thus initiated con- tinues till the period of discharge. In the Act of 1861, above referred to, it was directed that the militia should serve " until discharged by proclamation of the President;" In the provision of 1862, repeated in Sec. 1648, Rev. Sts., it was declared that they should serve for the period, (not exceeding nine months,) specified in the call, " unless sooner discharged by command of the President." The form of the order of discharge is not material provided it issue by the authority of the President, though communicated by a subordinate commander. Thus an order proceeding from such authority, which directed certain militia, upon being mustered and without being required to serve, to disband and return to their homes, was held by Atty. Gen. Legare '* " a virtual discharge from actual service." The usual mode, however, of discharging militia during the late war was similar to that pursued in the case of volunteers — a formal mus- ter-out, accompanied by written discharges." 2. AMENABILITY FOB. BEFUSIHa TO COMPLY WITH THE CALL. The Act of 1795 provided that an officer or soldier of militia who should fall to obey the orders of the President calling the militia into the public service should incur a certain forfeiture and become liable to certain other punishment, " to be determined and adjudged by a court-martial." This provision, substantially repeated in the enactment of 1861, has been reproduced in Sec. 1649, Rev. Sts. The question which it suggests is — ^what kind of court-martial is intended, and this question has been passed upon and settled by the highest authority. In the case of Houston v. Moore" heretofore cited, it was held by the Supreme Court that, though the mere calling forth of the militia did not bring them into the public service, or render them subject to the articles of war, a militiaman who refused to obey the call was yet guilty of a military offence against the 129 United States, for which, under the provision of the Act of 1795, he was triable and punishable by a court-martial of the United States, composed of course of militia oificers. This ruling, affirmed in Martin v. Mott," recog- nizes a peculiar jurisdiction having a source quite different fron» that exercisable over the militia after it has become a part of the national forces. This source is found in the power of Congress to provide, not for governing the militia but for calling them forth, and in the further general power " to make all laws which shall be necessary and proper for carrying into execution " its specific powers In asserting the authority of Congress to establish this jurisdiction hy its en- actment of 1795, Chief Justice Marshall, in an early case," observed : — " In the execution of this power,"' (the power 'to provide for calling forth the militia,') "it is not doubted that Congress may provide the means of punishing those who shall fail to obey the requisitions made in pursuance of the laws, and may prescribe the mode of proceeding against such delinquents and the tribunal before which such proceedings should be had." That the exceptional jurisdic- tion" thus created is quite other than that first above specified, and which Is » 3 Opins., 687. " See Mustering Regulations In G. O. 108 of 1863. " 5 Wheaton. 1, 25, 64-66. " 12 Wheaton, 19, 34. And see Meade v. Depty. Marshal of Va., 1 Brock, 324 ; Moore V. Houston, 3 S. & E., 169 ; Com. v. Irisli, Id., 176 ; Duffield v. Smith, Id., 590. It Is to be noted that the doctrine of the U. S. Supreme Court, as stated In the text, overrules that of the Supreme Court of New York in Mills v. Martin, 19 Johns., 7, and Rathbun v. Martin, 20 Johns., 343, In which it was held that a State mlUtla court was intended by Sec. 5 of the Act of 1795, (E. S., Sec. 1649,) and could alone take cognizance of the offence therein contemplated, the delinquent not being subject to the articles of war. ™ Meade v. Depty. Marshal, 1 Brock, 326. "Remark the provision, referred to In note on p. 95, of a Bill introduced In Con- gress, March 9, 1892, by which this exceptional jurisdiction Is avoided by making the militia a part of the U. S. forces, upon being called otit. MILITAHip JjXW and PRECEDENTS. 97 exercised over the mllltla similarly as over the Army of the United States, is fljustrated by the t&ct, fteretofpre noticed, that the courts-inartlal, (authorized W §^- 1^^! ^^v- Sts.,) for the trial of militiamen for disobeying the call, are not BeQ§gg8rily goveraed uj the code of articles of war. This is indicated in Martin v. 'ISjf wiere it was held that tie matter or tue composition of 130 such courts, so far as respects the number of the members, was not re- quired to be regulated by the article, (now the 75th,) on that subject, And the court say, referring to the articles in general, — " If any resort is to be had to them;, it can only be to guide the discretion of the officer ordering the court, as matter of usage and not as matter of positive Institution." That the offence which shall subject an officer or goldigr of militia to the jurisdiction under consideration must consist in a refusal or neglect to obey the order of the President, and that a refusal to obey an order emanating merely from a Governor of a State will not render the delinquent so amenable, is shown by Atty. 6eu. Wirt in an early opinion." Term of the jurisdiction. It was held in Martin v. Mott,°" that "'a court- martial regularly ordered for the trial of a delinquent militiaman under the Act of 1795 did not expire with the end of a war existing when it was con- vened, its jurisdiction to try such offlence not being dependent upon the fact of war or peace." It was added : — " It would be a straitened construction of the Act to limit the authority of the court to the mere time of the existence of the particular emergency, when it might be thereby unable to take cognizance of and decide upon a single ofCence. It is sufficient to any that there is no such limitation in the Act itself." III. Mabines Detacped fob Sbevice with the Abmt. NATURE OF THE JURISDICTION. It is prpvided by Sec, 1621, Rev. S5ts., that the " marine corps, when detached for service with th& 0rmy, hy order of the President, « * * shall 6e subject to the rules and articles of war pre- scribed for the government of the army." The relation of the corps to the army, and the amenability of its officers and men tQ trial by courts jointly made up of regular and marine officers, are recognized in the 78th article of war, and have already been considered in the Chapter on the Compogition of Courts- Martial. It need only be added that such amenability during the continuance of the detached service will be substantially of the same quality as if 131 the offenders were members of the army proper : further, that while the jurisdiction for the trial and punishment of offences committed pending such service' will most readily and appropriately be exercised before tlie same be terminated, it may legally be exercised within a reasonable period there- after, provided it has regularly attached by the due commencement of pro- ceedings before. IV. Civilians Subjected to Militaet Discipline in Time of Wab. STATUTES AUTHORIZING JURISDICTION. The class now to be con- sidered are persons whose liability to military government and trial by court- martial arises qnly in time of war, and is the result solely of the exceptional relations and obligations prevailing during a state of war. The statutes by which courts-martial, which, as has been seen, receive all their jurisdiction from «• 12 Wheaton, 35. '^ 1 Opins., 473. " 12 Wheaton, 37. 440593 O - 42 -. 7 98 MaiT4&¥ I*AW AHD PRIiOBDEN^S, Statute, are gspowerea to t^e cognizance of offences of civilians tn time Qf war, ftre Up f34, 4Sth ftnS 4001 artiojes of yrfiv, ^nq gga, 1343, Bev. Stg., wWeh (^ fllSB 3^n article of w^Fr*' |. TJNDEB ABT. 63. T^g Article, which is the most important nn^ ^q'-. prehenslve of the statntss infiicated, provides £ls fellows : — " All retavnera to the camp, and all persons serving with the armies of the United States in the field, tJ^Qitph not enlisted soldiers, are to 6e ^hject to orders, according to the 18? ruleg find disoiptine of war." This provision, vifhich, with some slight fflOdlfloations,'* has come down from our original code of 1775, which de- rived It from a corresponding British article, has always been interpreted as SBbJeetlng: the descriptions of persons specified, not only to the orders made for the government and discipline of the command to which they may be attached, but also to trial by court-martial ior violations of the military code*' Pro- tected as they are by the flJilltary arm, they owe to it the correlative obliga- tion of obedieppp i find n due consideration for the morale and discipline of the troops, and for tbe seeurity of the government against the consequences of unauthorized dealing and communication with the enemy, requires that these persons shall b^ governed much as are those with whom thev are commorant," p^pg i;ideed to the policy of our laws relating to the army, which has aimed to Impress, in general, a distinctive military character — as officers and enlisted men — upon the persons employed in the military service proper, the classes of (ftidtCh^s mentioned In the Article have been less varied and numerous in our armies than in those of foreign nations. In our late war, however, they were necessarily more considerable than at any previous period. " Betainers tq the oamp." This term may be deemed to include : —1. Offi- cers' gprvants! 2. Oamp-foUowers attending the army but not in the public gerviee. Of the former, there have been but few trials by court-martial," "Here may be noticed certain statutes, no longer In force — viz: the Acts of July 17, 1862, c. 200, s. 16 ; of July 4, 1864, t. 253, ». 6, 8 ; and of July 16, 1866, c. 200, h. 3— by whlcb certain civilians, to wit, contractors 'or arms, munitions and supplies for the «trmy, (and navy,) inspectors In the quartermaster department, and civil officials and Sgente of the Bureau for the relief of Freedmen and Refugees, were made amenable to the military Jurisdiction during the period -of the late war. Cases of trials, convic- tions, &c., by courts-martial, of army contraatora for frauds, neglects, &c., are published In the following Orders : G. O. 375 of 1863 ; G. O. and G. C. M. O. 3, 147, 166, 181, 212, 223, 322, 345, 375, of 1864; G. C. M. O. 382 of 1865; G. O. 167, 186, Dept. of the Ohio, 1863 ; Dq, 69, Northern Dept., 1864 ; Do. 46, Dept. of the Susquehanna, 1864 ; Do. 3, Mil, Di»t. of Ky., 1865 ; Do. 54, Dept. of La., 1865 ; Do. 47, Middle Dept., 1865 ; 59, 18, Dept. of Tenn., 1866. And see G. C. M. O. 614 of 1865; G. O. 114, Dept. of "^ahlngton, 1865, for proceedings of trials of inspectors j and G. O. 75, Third Mil. Dlst., for a case of a trial of an oDent of the above-mentioned Bureau. As to the constitutionality of this class of statutes, especially of the enactment re- lating t(> oantraotora, see pos*. ?*Th^ principal was the omission in the code of 1874 of the mention of tutlera. » See Samuel, 691-697 ; Hough, 596-598 ; Simmons, $ 71 ; Maltby, 31 ; O'Brien, 161 ; Pe Hart, 22 ; G. O. 175 of 1864 ; Digest, 148. •" See the authorities cited in the last note ; also Com. v. Gamble, 11 S. & K., 93 ; Poucher, Commentalre sur le Code de Justice Mllitalre, 177. And note in this con, nection the case of Ex parte Van Vranken, 47 Fed., 890, where " clerks of naval offi- cers on duty on shipboard on a voyage " are assimilated as to naval discipline and Jurisdiction to officeca and men of the navy, " because of the necessity of absolute dis- cipline on a ship at sea, where there cannot, in the natnre of the case, be one law for oite class of those on board and another, law for another class." And see Johnson v. Sayre, 158 U. S., 109. " See case in G. C. M. 0. 139 of 1864, of an officer's servant tried for stealing from the mail ; also in Do. 29, Army of the Potomac, 1864, of one tried for selling liquor to soldiers. Samuel, p. 695, cites a ctise of an officer's servant sentenced to death, for rol>- bery, by a court-martial. MILITARY LAW AND PRECEDENTS. 99 133 tMl' feffeSchels of disdpUne having been In general summarily punished by expilisfoH froflj the station or beyond the lines." Of followers of the camp^sutlers,"' suttesf* einployees* newspaper correspondents," telegraph operators," and some OfherSj" were from time to time during the late war brought to trial by court-martial, or Otherwise summarily disciplined." The post-traders who succeeded sutlers" would, In time of war, have been of the class of camp-followers if their posts had been within the theatre of the war. Camp-followers are generally restricted to the least number, on the eve 134 ot m Important movement by the army to which they are attached." " Persons serving with the armies in the field." While this might per- haps be viewed as a general designation including all persons serving in the field with the army in any capacity Whether public or private, yet inasmuch as the terms "service" and, " serving," as used in the Articles of war, have reference to public. service — the service of soldiers and the like — ^it is preferred to treat these words as intended to describe civilians In the employment and service of the government." This class, during thjB late war, was considerably more nu- iiierous than that of the camp-followers or private retainers. It consisted mostly of civilian clerks, teamsters, laborers and other employees of the dif- ferent staff departments, hospital officials and attendants, veterinaries, inter- preters, guides, scouts and spies, and men employed on transports and milltjiry railroads and as telegraph operators, &c." Of these persons those who app^r from the General Orders to have been most frequently subjected to trial by '^ This punisbment has also been imposed, summarily as well as by sentence, upon the other classes ot persons who are the subjects of the Article. See post. s'See G. C. M. O. 164 of 1864; Do. 9, Army of the Potomac, 1865; Q. O. 13, 132, Kept, of Washington, 1865. Sutlers were also sometimes expelled in orders without trial. See G. O. 87, Army of the Potomac, 1863 ; Do. 11, 21, Mountain Dept., 1862. Compare Hough, (P.) 823, as to the expulsion of sutlers from the French army In the Crimea by an order of Gen. Canrobert for selling to the soldiers " adulterated and un- wholesome, beverages." •" G. O. 76, Dept. ot Washington, 1865. And see G. C. M. O. 12, Army of the PotcMnac, 1865. •^See cases of newspaper correspondents tried for making unauthorized publications — in G. O. 10, Dept. of Washington, 1863 ; Do. 29, Army of the Potomac, 1863 ; Do. 13, Dept. of the Tenn., 1863. In G. O. 39, Dlv. West Miss., 1864, two correspondents of the New York Herald and Tribune, respectively, were ordered to be sent beyond the lines for a similar offense. In G. O. 48, Army ot the Potomac, 1863, all correspondents not opmplylng with a certain order in regard to publications are directed to be excluded from the lines. "In G. C. M. O. 29, Army of the Potomac, 1864, two telegraph operators are ordered to be sent beyond the lines. " See a case of an employee of the U. S. Sanitary Commission sentenced to imprison- ment, on conviction of selling llQuor to soldiers — in G. O. 45, of 1864. "Members of the families of soldiers or ofllcers, commorant with the army, would be amenable as camp-followers. Simmons § 71, note, cites the case of Hannah Fitchet, a soldier's wife, convicted of manslaughter by a general court-martial In India in 182S. That the wife of an offloer may be triable by court-martial as a camp-follower, see Hougb, (P.) 629. , «= Post-traders are here referred to as persons in the past because of the recent Act of January 18, 1893, providing for the gradual doing away with them by the not fllling of vacancies. The post-trader's store has meanwhile been in a measure superseded by the " Canteen," established by G. O. 10 of 1889, which has since, (G. O. 11 of 1892,) given place to the " Post Exchange." "Thus, by an order of the Comdg. General of the Army of the Potomac, of April 8, 1864, only members of the Sanitary and Christian Commissions, and " registered corre- spondents," were allowed to remain with the army. All other civilians, including sutlers, were sent to the rear. "Persons not in public employment are classed under the previous description of " retainers." See ante. M See DIGEST, 75-6. 100 MtEJTABY lAW AND PRECEDENTS. court-martial were — Inspectors, Teamsters, and other employees of the Quar- termaster's Department ;"• Officials and employees of the Provost Marshal Gen- eral's Department,™ Contract surgeons and nurses,' Paymasters' clerks,' 135 Officials of boards of enrollment,' Officers and men employed on steam transports,* Military telegraph operators,' &c" The Article to be strictly construed. This Article, in creating an excep- tional jurisdiction over civilians, is to be strictly construed and confined to the classes specified.' A civil offender who is not certainly within its terms cannot be subjected under it to a military trial in time of war v?ith any more legality than he could be subjected to such a trial in time of peace. As held by the Judge Advocate General," the mere fact of employment by the Government within the theatre of war does not bring the person within the application- of the Arti- cle. In several cases of public employees brought to trial by court-martial dur- ing the late war the convictions were disapproved on the ground that It 136 did not appear that at the time of their offences they were ' serving with the army ' in the sense of this Article.' " See G. C. M. O. 392 of 1864 ; Do. 25, 614, 625, of 1865 ; G. O. 9, 64, 86, 114, Dept. of Washington, 1865; G. C. M. 0. 22, 45, Army of the Potomac, 1864; Do. 4 Id., 1865; G. O. 20, Dept of the Susquehanna, 1863 ; Do. 15, Dept. of Ark., 1864 ; Do. 17, Dlst. of Oregon, 1864 ; Do. 53, Div. West Miss., 1864 ; Do. 63, Middle Dept., 1865 ; Do. 27, Dept. of the South, 1866 ; Do. 29, Dept. of La., 1866 ; Do. 15, Second Mil. Dlst., 1868 ; Do. 2, 5, 65, Dept. of the Platte, 1869; G. C. M. O. 45, Dept. of the Mo., 1868. And see, gen- erally, G. O. 175, War Dept., 1864. "» G. O. 353 of 1863 ; Do. 33, 43, and G. C. M. O. 271 of 1864 ; G. O. «0, Northern Dept, 1864 ; Do. 105, 199, Dept. of the Mo., 1864 ; Do. 27, Dept of the Bast, 1865 ; Do. 62, Dept of Pa., 1865. » G. C. M. O. 373 of 1864 ; G. O. 58, Northern Dept., 1864 ; Do. 81, Dept. of Pa., 1864 ; Do. 163, Dept of Washington, 1865. " G. O. 294 of 1863 ; Do. 72, Dept of the Ohio, 1864 ; Do. 5, Dept. of West Va., 1864. • G. C. M. O. 388 of 1864 ; Do. 1, 59, 386, of 1865. * G. O. 7, 9, Dept of Ohio, 1863 ; Do. 126, Dept of the Sonth, 1864 ; Do. 88, Dlv. West Miss., 1864 ; G. C. M. O. 26, Army of the Potomac, 1864 ; G. O. 40, Dept of la., 1885. » G. C. M. O. 29, Army of the Potomac, 1864 ; G. O. 109, Dept of the Ohio, 1864 ; Do. 19, Div. West Miss., 1865. "See cases of trials of employees of the subsistence, engineer , and ordnance depart- ments in G. C. M. O. 39 of 1865 ; G. O. 9, 24, 153, Dept. of Washington, 1865 ; Do. 25, Dept. of the Tenn., 1866 ; of an ambulance driver in G. C. M. O. 161, War Dept., 1864 ; an agent of the Freedmen's Bureau in G. O. 75, Third Mil. Dlst., 1867 ; a veterinary surgeon In G. O. 36, Dept of La., 1866; a scout in G. O. 19, Div. West. Miss., 1865; and of persons styled, generally, " Government employees " In G. C. M. O. 25 of 1865 ; Do. 22, Dept of Ky., 1865 ; G. O. 118, Dept of Washington, 1865 ; Do. 16, Dept of Arfc, 1865 ; Do. 23, Dept of Tenn., 1866 ; Do. 68, Dept. of the Mo., 1868. 'As to the limits of the military iurlsdlction exercisable under the British law over a similar class of persons, Clode, M. L., 95, well says : — " From what has been already written the reader perhaps need not be cautioned against supposing that all those who are resident or commorant within the Camp or Barrack are thereby rendered liable to trial by court-martial. Such a liability must be found upon the statute book in plain and explicit words leaving nothing to Inference." And he adds, from the ruling of Chief JusHce Best, In Looker v. Halcomb, 4 Bing, 189, that — " Any statute which takes away the right of trial by jury and abridges the liberty of the subject must receive the B&lctest construction," so that " nothing should be holden to come under its opera- tion that Is not expressly within the letter and spirit of the Act" "Digest, 76. " See Instances In 6. O. 9, Army of the Potomac, 1863 ; Do. 132, 153, Dept of Wash- ington, 1865 ; Do. 40, Dept-of La., 1865 ; G. C. M. O. 22, Dept of Ky., 1865. Similarly, In a case adjudicated during the same period, it was held that an agent of the Con- federate Treasury Dept, though acting upon the scene of hostilities, was not a ' person serving with the army ' or subject to military' trial ; and he was accordingly released, upon haieas corpus, from military custody, after having been tried, convicted, and sen- tenced to death, by a court-martial. Confederate States ex rel. McKee v. Scully et al. Sup. Ct., Confed. States, Sept, 1864. And see,, as to the general principle involved' Sup. Ct., Confed, States, Sept., 1864. And see, as to the general prlnclnle Involved! Antrim's Case, 5 Phllad., 288. voiyeii, MILITARY lAW AND PEECEDENTS. 10^ Llinits of its operation — ^Application to Indian Wars. Further, the us^,pf>,, the terms — " to the camp," " in the field," " according to the rules and discipline ' of war," is deemed clearly to indicate thai the application of the Article Is confined both to the period and pendency of war and to acts committed "on the theatre of the war." A period of hostilities with Indians is, equally with a period of warfare against a foreign power, a " time of war ;" " and it has been specifically held by the Attorney General that civil employees of the War Depart- ment — " serving with the army in the Indian country during offensive or de- fensive operations against the Indians " are amenable to military trial for offences committed pending such service." ' In cases indeed of offences alleged to have been committed during hostilities against Indians, it may not always readily be determined whether a war was in a proper sense pending at the date of the offence, or whether the locus of the offence was, properly speaking, the theatre of such a war." In a case of a quartermaster's clerk arrested, upon a charge of fraud against the Government, while serving at a post In the proximity of an. Indian Agency, and of a band of Indians a portion of whom had previously been hostile but with whom no hostilities whatever were at the time pending, it was held by the Judge Advocate General," that the cir- 137 cumstances were not within the description or application of the Article, and this opinion was concurred In hy the Attorney General." In general indeed, the jurisdiction created by the Article should be extended with special caution over civilians serving with troops during an Indian war, for the reason that the theatre of such a war Is commonly restricted In extent and that its duration is ordinarily but brief as compared with other wars." Application to clerks of War Department, and the like, in time of peace. In view of the fact that this article is operative only in and for a time of war, it need hardly be remarked that the mere fact that a civilian is serving, in time of peace, In connection with the military administration of the government, — as where he Is a clerk of the War Department, or at a Military Division or Department headquarters, — ^will not be sufiiclent to subject him to military trial for offences committed during such service. This point was so held In 1877 by the Judge Advocate General in the case of Barth, a clerk in the office of the Chief Quartermaster Military Division of the Pacific, and, further, with regard to the Superintendents ©f National Cemeteries who are discharged soldiers and civilians." In both cases the ruling was concurred in by the Attorney General.'' ♦"In 14 Oplns., 22, it is remarked by the Atty. Gen. that "the words 'in the field' imply military operations with a view to an enemy." ,"13 Opins. At. Gen., 31, 470. "=14 Opins., 22. " Note the situation as described in 14 Opins. At. Gen., 23, an^ also in 13 Id., 472. "Digest, 76, 77. « 16 Opins., 48. »« Digest, 76. 1' Digest, 77. ^ 16 Opins., 13. And see his later opinion in Crafts* case. Id., 48 ; also Ea parte Van Vranken, 47 Fed., 888. The only case contra is that of John Thomas, (1 Chicago Legal News, 245,) a civilian clerk of an army paymaster in Mississippi in 1867, who was held by the U. S. Dist. Judge fo be amenably to military trial for a fraud upon the United States. But this conclusion was determined by the fact that the State was then under military government, it not having yet been authoratively decided by the Supreme Court that the war wps legally ended. It may be noted in this connection that the rulings to the effect that naval paymasters' clerks were persons in the naval service and amen- able to trial by court-martial, (U. S. v. Bogart, 3 Benedict, 257 ; In re Bogart, 2 Sawyer, 396 ; Ed parte Reed, 100 U. S„ 13,) have recently been affirmed by the Supreme Court, 102 MILITABV LAW AND PRECEDENTS. Term of the jurisdiction. It need only be added that the juris- 138 diction authorized by Art. 63 should properly be exercised, or at least initiated, during the status belli. Upon a declaration of peace, or other legal termination of hostilities, the Article is no longer operative, and the " discipline of war " cannot lawfully be applied thereunder." ARTS. 45 AND 46. These provisions of the Code declare that — "Whoso- ever relieves the enemy with money, victuals, or ammunMion, or knowingly har- bors or protects an enemy; " and " Whosoever holds correspondence with, or gives intelligence to, the enemy, either flireotly or indirectly — shall suffer death or such other punishment as a court-martial shall direct." Construction as to application to civilians. Whether the word " whoso- ever " is here employed in a general sense, and includes civil equally with mili- tary persons, is a question frequently discussed in oases arising during the late war, but which must be regarded as determined by the weight of reason and authority in the affirmative. The principal grounds for such determination niay be stated as follows : — Ist. While all the other articles of the Code by which specific offences are denounced are so expressed as to apply in terms to military persons — as by the words " any officer who," " any soldier who," " any officer or soldier who," and the like, the persons to be affected by Arts. 45 and 46 are designated by a general and comprehensive term of description which may include persons without as well as within the army. 2d. In the only other case in which the word " whosoever " is employed, that of Art, 57, the same is qualified by the addition — " belonging to the armies of the United States." A similar qualification Is perceived In Art. 44 which be- gins — " Any person belonging to the armies of the United States who," &c. It is a fair Inference that where the qualification Is absent the general term Is In- tended to be unqualified. 3d. In their original form In the code of 1775, these Articles were phrased — " Whosoever belonging to the continental array," &c., a limitation taken from the corresponding British articles, then existing, which commenced — "Any officer or soldier who," &c. In the " additions " to this code, of November, 1775, 139 was contained an article substantially Identical with the second of the original articles, but substituting for the description there employed the general term — "All persons." In the code of 1776 the description In each of the original articles was changed to "Whosoever," a form retained without variation to the present time; the articles in other respects also remaining with- out substantial modification. It Is a reasonable argument that. In abandoning the words of limitation first employed. It was Intended by Congress that these statutes should not be restricted in their application to members of the army. 4th, The contemporaneous construction of the articles as expressed in the code of 1776 appears to have been that they applied to cases of civilians. Thus, In May, 1777, a case of one John Brown, a civilian, convicted by a general court- martial of corresponding with the enemy In violation of art. 19, sec. 13, of 1776, (the present 46th Art.,) was reported to Congress and recorded In Its journals.™ Subsequently, by Resolution of Oct. 8, 1777,'" It was declared in the ease of Johnson v. Sayre, 158 U. S., 109, and anything contra in Ex parte Van Vranken, ante, must of course be regarded as overruled. But the clerks of army paymasters, lilte all other clerlis connected with the military department of the govern- ment, are civil officials merely. " See Digest, 76. And compare 5 Opins. At. Gen., 58 ; 14 Id., 253. »2 Journals, 135. *> 2 Journals, 281. See, with this, the Resolution, in pari materia, of Feb., 1778 — 2 Journals, 459 — under which Joshua Hett Smith, the alleged confederate of Arnold and Aiidr£, was brought to trial by court-martial in 1780. 2 Chandler, Crim. Trials, 185. MILITAEY LAW AND PEECEDENTS. 103 "by Congress that " any person " who. should be guilty of giving intelligence or aid to the enemy should himself be " considered and treated as an enemy and traitor to these United States," and be triable by court-martial and subject to the death penalty or such other punishment as the court might think proper^ This enactment was practically but a reiteration of the existing articled of war, while at the same time extending their application to certain forms of relieving and assisting the enemy ilot therein enumerated. 5th. That these Articles, upon their re-enactment, after the adoption of the Constitution, in the code of 1806, were similarly construed, appears from the military Ordei's for the "Army Of West Lalie Champlain," dated in 1813, la which the two articles are published for the information and warning of the civil community) as Being " equally binding on the citizen as the soldier." In 1&18, il. C. Ambrister, a civilian, was convicted by a court-martial convened by General, afterwards President, Jackson, (by whom also the findldg and 140 sentence were approved,) of aiding the enemy by "sup^plylng them v?ith the means of wari" " &c. Of the earlier writers on military law, ^hile Maltby" was of opinion that the articles under consideration applied only to military persons, O'Brien" held that they were equally applicable to persons " in civil life." 6th. Coming to the period of the late war — the view was expressed ai an early date by Judge Advocate General Holt that civil persons were included ■#ithin the general description of the two articles and amenable to trial thereundei-.** This view was adopted by the Secretary of War, and announced in Orders of the War Department " and of the military commands ;" and, be- tween 1863 and 1865, civilians charged with a violation of one or both of the articles were frequently brought to trial by courts-martial; their sentences, when convicted, being generally approved and executed." 7th. The practice during the war seems to have settled the question in the executive department. In July, 1871, the prevailing construction was recognized and adoptied by the Attorney General, who held that certain civilians, appre- hended in New Mexico for supplying ammunition to Indians at war with 14i the tJnited States, were amenable to trial under the 56th (now 45th) article, which, he observed; ^{iplied to "persons who are not as well as persons who are In the military seirvice." " This is the most recent authorita- tive rilling upon the question of jurisdiction under consideration. " Trial of Arbuthnot and Ambrister, London, 1819 ; Am. State Papers, Mil. ACEairs, vol. 1, ptl; t21-t34. 23 Pages 37-40. «Page i47. '" Digest, 40. And see Ives, 63. ^ See ij. O. 67, War Dept., 1861, in which It is declared that all persons guilty of any nfaaiitllorized correspondence or communication by which intelligence may be conveyed to ifce eaemy "will be proceeded against under the 57th (now 46th) Article of war." »y In G. O. 24, Dept. of the Ohio, 1863, Gen. Wright, in calling attention specifically to the two articles, enjoins it upon all military officers in the. Department " to arrest all persons guilty of their violation, without regard to age, sex or condition, and submit proper charges against such offenders that they may be brought before a court-martial for trial." And see G. O. ,80, Div. West Miss., 1864 ; also Orders cited in next note. «Sj^ G. O. 76, 175, 25^, 371, War Dept., 1868; Do. 51, Id., 1864; G. C. M. O. 106, 157,. iS., 1864 ; Do. 260, ^671, Id., 1865 ; G. O. 10, Dept. of Washington, 1863 ; Do. 52, Dept. of the Ohio, 1863 ; Do. 31, Middle Dept., 1863 ; Do. 13, Dept. of the Tenn., 1863; Do. 39; 58, Dept. of the Mo., 1863; Do. 190, 203, Id., 1864; Do. 31 Id., 1866 J 06. 17^, 181, Dept. of the Gulf, 1864; Do. 11, 19, 67, Id., 1865; Do. 78, 88, Div. West. Miss.,, 1864 ; Do. 14, 27, Id., 1865; po. pi, Dept. of the East, 1866. »l3 Opins., 4t2. What is said under Art. 63, (see ante,) as to its applicability to an Indlaii as well as to a foreign war, is equally apposite here. 104 MILITAEY LAW AND PRECEDENTS. Sth. It is, lastly, a just argument in favor of the view that by the term " whosoever " it was Intended to embrace non-military persons, that it is not In fact members of the army but civilians — disaffected or mercenary — ^who would be the most likely to indulge in the practices denounced by these Articles. Iiimits of the jurisdiction. Accepting as correct In general the construc- tion which has been put upon the two Articles by the mass of authority cited, it remains to repeat that these are statutes operative only in war, and to remark that the military jurisdiction extended over civilians' by the same, (as by the other statutes of the general class under consideration,) must be understbo'd to be limited to acts committed on the theatre of war or within the scope of martial law. This point, in substance so ruled by Chief Justice Kent in the early case of Smith V. Shaw," has been more recently most clearly held in Jones v. Seward,*' a leading case of a suit instituted against the Secretary of State during the late y?ar. The same principle is in effect asserted by the XJ. S. Supreme Court in Ex parte Milllgan." Term of the jurisdiction. It may further be remarked that this special jurisdiction, like that authorized by Art. 63 or any other growing out of a con- dition of war, should properly be exercised during the continuance of the war status." The jurisdiction not exclusive. It may be added with reference to this jurisdiction that it is not exclusive. The acts denounced in the Articles 142 are mostly acts of treason, and as such cognizable by the U. S. Courts." SEC. 1343, KEY. STS. — JTrEISDICTION OVER SPIES. This ju- risdiction will be more appropriately considered in Chapter XXV, on the " Arti- cles of War separately considered ; " this statute, providing for the trial and punishment of spies, being properly an Article of War. V. Cebtain othee Civilians made Amenable by Law to the Militabt Jubis- DICTION. THE CLASSES OF PERSONS AND THE STATUTES M^AKINQ THEM AMENABLE. Besides the classes of civilians last considered, as subjected by statute to the jurisdiction of courts-martial in time of war, the existing law makes similarly amenable certain other -civilians, generally — i. e. without re- gard to the prevalence of a state of war, or equally in peace and war. These latter, who have already been referred to, in this Chapter, under the head of " Exceptions to the General Rule of Non-amenability after discharge, &c.," are the following : — (1.) Officers and soldiers retained under military jurisdiction, after discharge, &C., by the last clause of the 60th article of war, providing for the punishment of frauds against the United St#es, &c.: (2.) Officers accorded a trial by general court-martial, after being summarily dismissed, by Sec. 1230, Rev. Sts. : (3.) Soldiers sentenced to dishonorable discharge and confinement, and, after discharge, held in confinement at the Military Prison at Leavenworth, who are made liable to military trial for offences committed during confinement as being within the terms of Sec. 1361, Rev. Sts. : (4.) Discharged soldiers of the regular »'12 Johns., 257, 265. And see In re Stacy, 10 Id., 332; Mills «. Martin, 19 Id., '22; In re Kemp, 16 Wis., 359. »40 Baib., 563. « 4 Wallace, 121-3. =3 See Digest, 76, 507, and other authorities cited under Art. 63, ante. "That giving intelligence to the enemy, and supplying the enemy with arms, muni- tions, provisions or money, are overt acts of treason Indictable in the Tj. S. Courts, Bee Chapter XXV. — Fokty-Fifth and Fobty-Sixth Ahticleb, and authorities cited In notes. MTTJTABY LAW ANp pBECEDENTS, 106 army who g-F,© Inmates, of the Soldiers' Home, an.d as «meft PJ.ad^ sj^bJect to the rules and articles of yrar by Sec. 4824, Rev. Sts. : (5.) Discharged flifflfiers an,(J soldiers of volunteers, who, as jgpii^tes of the National Home for Disabled "Vol- unteer Soldiers, are made simUayly i^jj&^ect by Sec. 4835, Kev.. Sts. 143 GENERAL PBIITCIPLE OF NON-AMElTABIIilTy Qf CIVILIANS TO THi! MILITARY JtTRISDICTJON IN TIME OF PEACE. AIJ pep- sons of these several classes are dviUcma, by reason gf their legal discharge or dismissal from the military service. That a civilian, entitled as he is, by Art. VI of the Amendments to the Constitution, to trial by jury, cannot legally be made liable to the military law and jurisdiction', iji(time of peace, is a funda- mental principle of our phblic law," and it Is quite probable that Congress did not contemplate in these enactments affily material departure from this principfe. The provision of Art. 60 and that of March 3, 1865, Incorporated In Sec. 1230, Rev. Sts., were war treasures, intended aM)arently to be but tempprary In their operation, and which have indeed been but rarely availed of in practice." As to Sec. 1361, it may well have been framed without a consideration of the fact that it was expressed in such general terms as to include prisoners who had been di^harged as well as those still in- the service. Sec. 4824 was probably added simply or mainly in terror em: no court-martial is known to have ever been convened under it." Sec. 4835 is a copy of the last, and as authority for trials by court-martial has, proved wholly unavailable." 144 CONSTITTTTIONALITY OF THE STATUTES. These laws, how- ever, remain on the statute book, and under Sec. 1361 discharged soldiers have not unfrequently been brought tp trial," while under- Art. 60 discharged officers and soldiers are always liable to be tried. It is proper therefore to con- sider the question of the constitutionality of such laws, and that they are con- stitutional cannot, in the opinion of the author, be maintained upan sound legal principles. They are certainly not so as being forms of exercise of the power to " govern and regulate the land forces," because the term " land forces " does not embrace discharged officers and soldiers or any other civilians. They must be so therefore under and by virtue of a combination of the *too i)owers,.to " raise armies " and " govern the land forces." That is to say, they must be regarded as placing or retaining these persons, notwithstanding that they have become civilians, ih the army for a temporary or special, purpose, and, by the same act, provl^ng for their government while so placed or retained, so that "See Ed) parte MilUgan, 4 Wallace, 121, 123; Jones v. Seward, 40 Barb., 563; In, re Martin, 45 Id., 145 ; Smith v. Shaw, 12 Johns., 257, 265 ; In re Stacy, 10 Id., 332 ; MiUs V. Martin, 19 Id., 22 ; Johnson v. Jones, 44 Ills., 142, 155 ; Griffin v. Wilcox, 21 Ind., 386 ; I» re Kemp, 16 Wis., 359 ; Bx parte McEoberts, 16 Iowa, 605 ; Antrim's Case, B Phllad., 278 ; Ex parte Merryman, Taney, 246 ; Ex parte Henderson, IT. S. Clrc Ct., Wst. of Ky?, 1866'; Parker '■». Ld. CUve, 4 Bur., 2419 ; Looker v. Halcomb,. 4 Blng., 189 ; Eawie on Const.; 220; 3 Opins. At. Gen., 690; 5 Id., 736; 13 Id., 63; 16 Id., IS,. 48; Maltby, 37 ; G. C. M. O. 16 of 1871. ""See cases under Art. 60 in note, ante. As to cases under Sec. 1280, see Chapter Vl., where this statute Is considered with reference to the authority of the President to convene courts-martial under it. " See, in this connection, the recently published opinion of- the Attorney General, in 20 Opins., 514, to the effect that the military authority of arrest, &c., cannot be.extended over " non-military persons " at the Soldiers' Home. As a matter of fact ail the in- mates of the Institution are non-military persons, being all honorably discharged soldiers, who had been duly discharged, and had thus become clviiiaris before being admitted to the Home. WA remarkable Instance of a. futile court ordered under this section, in 1870, and which well Illustrates the Incongruity of such proceedings, la set forth in Diqesi^ 329-30, and referred to ante, p. 93, note. ''See p. 93 and note, ante. 106 MttilTARr LAW AND PEECEDENTS. their oftences shall be punishable as " cases arising in the Umd forces." " But does the power to " raise armies " extend to the inclusion of such civilians in the land forces? What are " armies " In the sense in which this term is used in the CoustitfltloB? Its Interpretation Is to be found in the series of statute d&tlBg from the period of the adoption of that Instrument, and of which the constitutionality has not been questioned, by which the constituents of our' armies or Army have been repeatedly defined. These constituents are a certain number of officers commissioned or appointed, and of soldiers enlisted, Into the military service as such, bound to obey military orders and to perform military duty In peace or war, entitled to military pay, and remaining under mi|itAi The offences designated in Art. 58 are indeed, as civU crimes, some of them felonies and some of them misdemeanors at common law. But as here made cognizable and punishable by court-martial, i-iz., "when committed by persons In the military service," they are simply military crimes, and no disability or other penal consequence of a con- viction of a felony can. In the absence of any statute imposing the same, result from a conviction of any one of them. See Digest, 509. ^ See Kennedy, 188, 190. In the only Instance in our code where any apparent allu- sion is made to the distinction between principal and accessory, occasion is talsen to discard it. This is in the 27th article, where it is 'expressly provided that "all seconds or promoters of duels, and carriers of challenges to fight duels, shall be deemed principals and punished accordingly." In several of the articles, as the 37th, 42d, 43d, 51st and 60th, offences in the nature of those of accessories are made punishable, but always as distinct and independent acts. MILITARY LAW AND PEECEDENTS. 109 such distinction In larceny as grand or petit, nor any degrees in murder, man- slaugjiter, &c., sijpli as are fenWn tp tlie laws of most of the States."* MINOR INGLITQES OFFENCES. By this tenn is intended the lesser acts Of offence which may be included in tlje specific pffences with which military persons may be charged. The principal of these are absence without leave, manslaughter and larceny, as offences included in desertion, murder and rob- bery. A further offence of this nature is the " conduct to the prejudice of good order and military discipline" which may be deemed to be involved in every specific military crime. The subject of §uch inclusion will be further considered In the Chapter pn the Finding; it is here adverted to for the reason that the legality of the flndjng ,of a lesaejr pflengp refjilts ^fpm the fact that the court in trying the cripiiB charged, has jufisdictfon of any minor criminal act recognized as an offence by }a?y, wljich it cpntains or involve?." SEPABATE qONSIDEBATION OF MILITABY pFFENCBS. The vari- ous offences made eognigftbjp by courf-martlal by the Articles of war will be specifically defined and considered in Chapter XXV, in examining those Articles gerlatiin, II. OviZSCS^ Cognizable TJndee Other Statutes, There remain a few minor statutes not inelUded with the Articles gf war, and mostly of a more recent date, by which military persons are made amenable to trial by court-martial for offences additional to those designated iu 130 the code, The statutes are: — Sees. 1359 and 1360, Rev. Sts., by which ofl[lcers and soldiers are made so amenable for the offences of aIlo\7lng or aiding convicts to escape or attempt to escape from the Fort Leavenworth Military Prison ; Sees. 5306 and 5313, Rev, Sts., in which trading with an enemy without a license, dealing in captured property, &c., with certain other acts of falsity and fraud, are, In cases of military offenders, made cognizable by court- martial — legislation evidently Intended to be operative only or mainly In time of war ; sec. 4 of the Act of May 11, 1880, by whch It is declared that any officer of the army, Indian agent, &c., who, without authority from the President, shall permit any Indian on a reservation to go Into the State of Texas, " shall be dis- missed from the public service " — ^In the case of an army officer, it is presumed, upon conviction by court-martial ; and sec. 3 of the Act of July 37, 1892, c. 272, by which " fraudulent enlistment," Is declared a military offence ^.nd tngL^e punishable by court-martial. It Is only under the first two an^ the last of these provisions that cases are. In practice, presented for trial. 5' In a few cases the military commissions establisbed by the Keconstruction Acts, in deference to the procedure under the State law, found persons charged with Murder guilty of the same in the second degree. G. O. 107, 153, Fifth Mil. Dist., 1869 ; Do. 53, 62, Id., 1870. But they were here acting as substitutes for the State Courts, (See Part II.) CHAPTER IX. THE PROCEDURE Of GENBRAI COTTRTS-MARTIAL. J, THE ARRBgT OF THE ACCUSED. 151 We come now tq the extended subject of the Procedure of General Court? i and this subject will be presented In separate Chapters ^n Samuel, 639 ; Clode, 1 M. F., 169 ; Id-, M. L„ 10 ; Manual, 28, = In a strict sense the term arrest appliea only to officers, the taking into military custody of soldiers being more accurately expressed as c(-nflnement. Manual, 28. Our Art. 70, however, employs thp term " arrest " In reference to soldiers as well as officers, and ^t has beep fQVind more convenient to use it in the text as a gensral rather than a specific description, ' See Digest, 78. And compare construction of Art. 66, post, 110 miu:tab¥ law and pkecedents. Ill the code from Art. 65 to Art. 71 favors this construction, which Is also that sustained by the gfictice of the service. The Corresponding article of the late British code was similarly interpreted by the authorities.' The occaslftn and authority for the arrest of an officer thus is that he shall be ehUf^ed with a material military offence' By this, however, it is not in- tended that formal charges shall as yet have been served, or even preferred. It is sufficient that knowledge of the ofEence be had by the officer malting the arrest because of its having been committed in his presence, or, where this is not the case, that an accusation be seriously made, orally or In writing, by a responsible person and communicated to such officer. In most cases indeed — and this is the proper course where practicable — a copy of the Charges as pre- ferred is served upon the officer at the time of the arrest An offlcetj 153 however, is not entitled to know fortlvwtth why he is placed ifi arrest^ and, provided the charges are served upon him within eight days, aceorid- ing to the provisions of Art. 71, he can claim no relief on account of the delay. FOBIC OF THE ARBEST — The order. Ih liea of thte warrkht or othet process of the general criminal law, a military arrest Is; by the usage of the service, regularly imposed by an ardet; dhd Hiis ordet may be ether vejrbal or written.* An order in writing, as being more fbiinal and better evidencing the action taken, ig~Qte preferable 'modisi S.nd that (commonly adopted, except where, the OfEence being committed ih the j^resence of the comm4h(ier', the arrest is made by him on the spot." Thfe order of arlresr, especially where in writing. Is usually given through the adjutant or ot&er staff officer.' This official does not ordinarily serve the order by 'copy, making return upon the original in the atahner of a i^rlt,' biit siiniiiy delivers to the accused an original, of which a dU^Ucatg is retaiii^d 'or a record made 'at the headquarters. Thete is ho prescribed totia of expressing the order of arrest. A simple and laSuM fOtih is a direction to the officer that he " will consider himself in arrest," 'or, " conisider hiiasfelf in arrest and confine himself to his quarters," ' till further orders.^" 4. requirement that he surrender his sword is sometimes added, but is nbt essential, the Article itself specifically providing for such surrender. 154 The confinement. Art. 65 requires that the arrested officer shall be " confined to his quarters," &c., and an officer, upon arrest, will properly b'etake and confine himself to his quarters without being specifically directed to do so." The quarters of an officer are his military residence, whether con- sisting of a tent or tents, a barrack, a separate tenement assigned to him at a post, or a house or rooms occupied by him at a station where public quar- ters are not* furnished by the government. The limits of such quarters he * Wolton V. Gavin, 16 Ad. & El., 66 ; Simmons § 360. ^ An officer cannot properly resort to an arrest of another officer in order to anticipate and prevent his own arrest by the latter. See case of Col. J. L. Smith, 3i3 Infy., In G. O. of Dec. 19., 1820. " That a verbal is equally efficacious with a written order, see Hough, 493 ; Id., (P.) 22; Griffiths, 24; DeHart, 75; Ben^t, 47. '"An officer is put In arrest, either directly by the officer who orders It, or, more generally, by the ministration of a staff officer." Simmons § 353 ; Manual, 28. Simmons adds : — "Arrests have occasionally been Imposed by the Intervention of the provost marshal, and, more rarely, notified even in public orders." 'As Is sometimes done in the militia service, where the pi'ocedure Is In all respects more nearly assimilated to that of the State courts. See Maltby, 128. ° But that the direction as to confinement is not necessary, being Included in the simple order of arrest, see post. »» An officer when duly placed in arrest cannot refuse to so " consider himself." As remarked by Gorham, (p. 27,) " he is under arrest whether he acknowledges It or not." "Unless indeed larger limits are specifically assigned him in the order of arrest. See poet. il2 mhitajry law and precedents. cannot, of his own authority, exceed without being guilty Of breach of arrest — the offence made punishable by the last clause of the Article." On the other hand, an officer is entitled to be held In arrest at his-own military habitation or lodgings, and cannot legally be removed to and confined in a building, tent, &c., rpmote from his proper quarters. The term " confined " does not necessarily; import that the officer Is tc be detainedr by force, or to be harassed or humiliated by any unnecessary restraint. Such a restraint would exceed the fekjuirements of safe custody, and be in the nature of a punishment. Except, therefore, Where an attempt to escape or some act of violence Is to be apprehended froni him, or where he "is charged with an exceptionally heinous crime, or an aggravated breach 6t a previous arrest; he Is hot in general to be held under guard, and the commander *ill not properly place a sentinel over his quartera" For an uiidue or unreasonable exer- 155 else of the power of arrest and confinement, conferred by the Article, a commander will himself become'amenable to charges." The taking of the sword. The theory-^It may be noted — of this further feature of a strict arrest under the Article is, that it formally suspends the officer from the functions of his office, and especially from the exercise of com- mand.^ The sword must of course be surrendered on detoand." It Is not, however, essential to an arrest that it be taken, and this requirement of the Article may be waived ; the sword in such case, by a Action 5f law, being never- theless regarded as having actually been surrendered." But that the sword is not in fact taken does not authorize the officer to appear with It during the continuance of the status of arrest. ^ " The article defines precisely Trbat are tbe limits of an officer In arrest, unless wben modifi^ by bis commanding officer, and an officer would no more be justified In exceeding tbem because they are not defined in the or4ec arresting him than he would be in appearing with his sword because It failed to state that lie had been deprived Crf it by his commanding officer.'' O. O. 42, Dept. of Wftshington, 1866. (Gen. Augur.). i^Sce Samuel, 642; Simmons § !!55 ; Hough, (.P.) IE); 2 McArthur, 3: Delafons, 190, 204; Griffltjis, 25; Maltby, 129; Macomb, 20; O'Brien, 154; De Hart, 75. " In tie dubious Interval between commitment and trial, a prisoner ought in general to be used with the utmost humanity.'" Adye, 144. The arrest, where the officer properly con- ducts himself, should not be so severe as to prevent the due preparation of big defence. James, 411. " Where the party may b^ outrageous, given to drinking, or subject to a temporary derangement of mind, sentries have been placed to prevent the possibility of his going from his confinement." Hough, 492. In the cases of breach of arrest publlsSed In the following Orders of the War Dept., the officer was confined under guard to his qnarters : G. C. M. O. 441 of 1865 ; Do. 164 of 1866.' Th? close arrest of an officer should' not be characterised by an undue publfoity, as tending unnecessarily to impair the respect In which he should be held by his iiiferlors. Hough, 461, note. " Samuel, 642 ; G. O, 59, Dept. of the South, 1.862 ;. Do. 251, War Dept, 1863. As to his lia,bLUty also to a. civil siiit.for damages,, see Pabt III. « O'Brien,. 154; Harwood, 35.- in the early cases of Gen. "Hull, (1813,) and Qen. Galfics, (1816,) these officers are described in the records of trial as depositing their swords with tbe President of the C^urt before being arraigned; The Order, (of Nov. 11, I816j) which promulgates tbe proceedings- in tbe case of tlie latter, (who was acquitted,) directs :-r',' tite President of the Court will restore the sword of Ma]. Gen. Gaines, with a copy of these Orders." Jn a case of; an officer sentenced to be suspended, it was or- dered by the reviewing authority, Jn approving the sentence, that — " bis sword will not be returned to him until after the expiration of the term of suspension." G. O. 61, Sept. of the East, 1865. "In a case in G. O. 310 of ±8fi3, an officer is convicted of " conduct unbecoming an officer and a gentl^mani " in first fefusifig, when placed in arrest, to surrender his sword, and then endeavoring to break it before delivering it up. At the " Simla court-martial," Capt. Jervis was convicted upon a Charge of refusihg to give up his sword on arrest. Simmons g 3^3, note, «See Tytler,.203; Hough, 460, 493; Griffiths, 24; Macomb, 19; Maltby, 129; CBrlen. l54 ; De Hart, 75. MILITAIIY lAW AND PBECEDEUTS. 113 EZTENSIOM' OF LIMITS OF ABBEST—" Close " and "open" arrest. An arrest imposed according to the terms of Art. 65 Is that which Is termed "close arrest," or rather the arrest to which an oflScer is by strict law sub- jected is necessarily close arrest, unless expressly modified by the com- 156 mander. The Article, Indeed, in declaring that the arrested officer " shall be confined," &c., might perhaps be regarded as a mandatory statute, ab- solutely requiring a close arrest by confinement In all cases. No penalty, how- ever, is prescribed for not complying with its injunction, and that the provision is to be viewed as directory only upon the commander, who may thus, in proper cases, at his discretion, make exceptions to the general rule, is indicated by the fact that, pari passu with the Article, has long existed and been in force the army regulations — now par. 992, A. R." — to the following cfEect : "An officer in arrest may, at the discretion of his commanding officer, and upon written ap- plication, have larger limits assigned him than his tent or quarters. Close con- finement will not be enforced except in cases of a serious nature." The result, in practice, is that in the great majority of cases, (especially where the detention is likely to be of considerable duration,) larger limits than the quarters of the officer are granted when asked; the arrest being in this manner reduced from a " close " to an " open " one, or an arrest " at large." " In many cases, Indeed, more extended limits than those specified in the Article are allowed in the first instance and without being applied for, such limits being designated In the original order of arrest. Which of the two kinds of arrest shall be imposed or continued rests wholly In the discretion of the com- mander. This discretion will be guided by a consideration not only of the nature of the offence and the conduct of the accused prior ]to and at or after the arrest, but of -his state of health, the facilities required to enable him to confer with his counsel and prepare for his defence, the commodlousness or the reverse of his quarters, the season, climate, &c. ; — ^the certificate of the medical officer, when the accused is 111, as to his physical or mental condition, the space properly required by him for air, exercise, &c., being of course always deferred to." 157 The limits usually prescribed or acceded, where a close arrest is not imposed or continued, are commonly the boundaries of the camp, post, or station, or of a certain circuit of the neighborhood of the officer's quarters. At a post upon a military reservation, the range of the reservation, if not too extended, would in a proper case be accorded." The limits once fixed may even " The substance of this paragraph first appears in the Eegulations of 1821. That the arrest. In the British military law, may be close or open at the discretion of the com- mander, is noticed In Hannaford v. Hunn, 2 C. & P., 158. » As to the distinction between close and open arrest, see Tytler, 202 ; Hough, 494 ; Id (P.) 21; Simmons §354; Clode, M. L., 113; De Hart 75; Digest, 119-120. That an' open arrest, where the limits prescribed were "the City of Washington," did not impdse a physical restraint entitling the officer to resort to a writ of haieas corpus for his release, see Wales v. Whitney, 114 U. S., 564. "See Tytler, 203; Hough, 460, 492, 493; Id., (P.) 19, 22; Clode, M. L., 113 ; Id., 1 M. F., 169, 171. » Griffiths, 24 ; Ben«t, 46-7 ; Digest, 170. And see G. C. M. O. 51 of 1867 ; G. O. 42, Dept. of Washington, 1866. In a case of breach of arrest in G. C. M. O. 37, Dept. of Texas 1874 the order enlarging the limits of the original arrest, as set forth in the specifications. Is as follows : " The limits of the arrest are so far extended as to allow him to leave his quarters at any time between reveille and retreat for the purpose of exercise, with permission to go beyond the limits of the garrison. He Is not authorized by this order to enter any house." [The offence consisted in entering houses in an ad- joining Village without authority.] „ u i. xu u. .. , In the British navy, the officer " Is generally allowed to walk about the ship at large, (the quarter deck excepted,) without a sword." Delafons, 199. And see Hickman, 162. As to the practice in our navy, see Harwood, 36. 440593 O - 42 - 8 114 MILITAKY liAW AND PKECEDENTS. be enlarged upon a second application. As to the number of applications there is no restriction : larger limits may first be refused on account of misconduct of the officer, and granted after his behavior has improved. In some cases the scope allowed, in view of the rank of the party, the nature of the offence, &c., is so wide and general that the arrest becomes little more than a mere form " Analogry of enlargement on bail. A theory which has been advanced to explain the practice of thus permitting an arrested officer to be at large is that the possession by him of a eonmiission, which would be in danger of being for- feited if he violated his parole and escaped, is a sufficient security, answering to bail at the criminal law, for his not withdrawing himself from nrilitary cus- tody, and for his appearance before the court for trial at the appointed tlm& In the words employed by Clode, " the officer gives bail in the value of his com- mission." " 158 DEFEBRING OF ASBEST TIIiL TBIAL. The arrest of officers is so much a matter of discretion that cases are recognized in Which arrest is not required to be imposed until just before trial. Par. 994 of the Army Regula- tions prescribes that — "A medical officer charged with the commission of an offence need not be placed in arrest until the court-martial for his trial con- venes, if the service would be inconvenienced thereby, unless the charge is of a flagrant character." Other instances also may arise where, because the officer is engaged upon some highly important service, or for other controlling reason, it may not be desirable to order him in arrest tlU the eve of trial. OMISSIOIT TO ABBEST. In some cases it has been omitted altogether to place the officer In arrest either prior to or pending the trial. These were mostly cases of officers of the hlghCT grades, in which a trial was desired by the ac- cused, and it was known that he would voluntarily appear before the court. The mere fact that the accused has not been subjected to arrest can In no case affect the jurisdiction of the court or the validity of its proceedings or sentence. If the accused of his own accord appears and submits himself to trial, the court is authorized to proceed in the case equally as if he had been brought before it compulsorily and in arrest. On the other hand an officer cannot refuse to appear for trial on the ground that he has not been put in arrest, or plead the omission in bar of trial." An officer is not entitled to demand to be arrested prior to trial, and he must obey an order to present himself for trial with the same promptitude whether or not he may have been formally arrested.* It is proper to add that an omission to arrest is an irregiir 159 larity which must in general be prejudicial to discipline and the dufe administration of justice. » As in the case of Medical Director Wales of the Navy, (Wales v. Whitney, 114 U-. &■, 564), noticed in note on p. 113, ante. ■"M. L., 113. And see Id., 1 M. F., 171. " It is an old and very good toiUtftrj^ baxim that an officer's commission is a good security against his breaking hW arrfeSt.*' Hough, (P.) 19. And see Adye, 144 ; Delafons, 199 ; Kennedy, 16 J 0'BH«A, 153: " This affords one great reason for the distinction taken between a commissioned dfflcer and soldier, in the circumstances of the arrest. • • • In all cases where the alleged crime, if proven, could not endanger more than an officer's commission, it may be said that this is a sufficient guarantee for the appearance of the accused, and that no other precau- tionary measure for that purpose would appear demandable." But in more aggravated cases, " additional securities should and ought to be taken." Samuel, 614. » See the case of a conviction of a superior officer, for a violation of this regulation in G. O. 59, Dept. of the South, 1862, and Do., 251, War Dept., 1863. In an old Order,' (A. & I. G. O.,) of Sept. 22, 1819, the conduct of a post commander, in placing the post surgeon in arrest under a sentinel, is disapproved as "contrary to the usages of the service and unjustifiable." "Digest, 170. MIMTABY LAW AND PEECEDENTS. 115 BY WHOM ABBEST IS TO BE IMPOSED. Art. 65 indicates tlie " com- manding offleer " as the agent of arrest," and par. 990 of the Army Regulations declares ; — " Commanding officers alone have power to place officers under arrest, except as provided in the 24th Article of war." By the term "commanding officer," as applied to the line of the army, is meant the chief of the complete integral command or separate organization to which the officer is attached qx \?tih which he is serving— -as the regiment, detached company, detadnaent: siade- up from various companies, or corps, garrison, post, ^ ^^flg n eaptaln commanding a company would not properly place in, %p:^\ ft yeuteaant of his compapy, if the comp^ay was serving with ^^^^ ^s, % 5ft5t of a regimental or post command, of which a superior to the ^jltftift was the commanding officer present: otherwise, if the company was quite severed and acting alone. As applied to the stalf, the "commanding officer," in the sense of the Article, qX. aa officer of the general staff would ordi- narily be either the chief to Boston^ and not returning till the fbui-th day," &c. 170 The animus of the offender. It is to be remarked that the inere act of quitting the quarters, &c., without the proper authority, consummates the offerice, whatever the intention or motlte. Breach of arrest indeed ordi- narily involves, with a disobedience of orders, a deliberate defiance or contempt of authority," and hence the heinousness usually ascribed to it;" but an evil animus is not essential to constitute it, and an officer leaving his close arrest under the bona fide Impression that he was authorized to do so, when in fact no such authority existed, would, strictly* be guilty of a violation of the Article." " The order of arrest sometimes expressly provides for cases of necessity. Note instances in G. C. M. O. 16, Dept. of the Miss., 1865 ; Do. 18, War Dept., 1867. " G. O. 380 of 1863 ; G. C. M. 6. 441, Id. of 1865 ; G. 6. Ill, Dept. of Washington, 1864. " 6. C. M. O. 18 of 1867 ; Do. 29 of 1881. " G. C. M. O. 164 of 1866 ; Do. 57 of 1867. - « G. C. M. O. 220 of 1866 ; Dp., 29 of 1881 ; Do. 16 of 1888. " See In Hough, (P.) 77, a case of an officer who, having been placed in arrest while a member of a general court-martial, " went in person to malse the circumstance known to the court," thus breaking his arrest. " G. O. 26, 1851 ; Do. 11, Army of the Potomac, 1861. In Do. 29, Dept. of New Mexico, 1864, is a case of an alleged breach of arrest in leaving quarters and " loitering about the post." " G. C. M. O. 44, Army of the Potomac, 1864. «• G. C. M. O. 93 of 1875. And see Do. 115 of 1866. "G. C. M. O., 53 of 1890, where the breach of arrest of the officer consisted in hla going to a neighboring town and thence to a ranch, seventeen miles from the post, and remaining there till apprehended. "G. C. M. O. 16, Dept. of Miss., 1865; Do. 42, Dept. of Washington, 1866. "G. O. Ill, Dept. of Washington, 1864. And see a similar case in G.' O. 84 of 1863. " G. O. 62, Dept. of the Gulf, 1864. "G. O. 43, Dept. of the East, 1864. In a case in G. C. M. O. 38 of 1867, the officer, in breaking his arrest, left the post and was al>sent 22 days, — (or which he was, also, charged with desertion and convicted of absence without leave. » As indicated sometimes, not only by protracted absence f n the part of the officer, but by such acts as resuming his sword or the exercise of his official functions, (See case in G. C. M. O. 57 of 1867 ;) disorderly conduct or insolence toward the corjimand- Ing officer, (G. C. M. O. 441 of 1865;) refusing to return to his quarters, and only doing so when compelled by force, (G. C. M. O. 3, Dlv. of the S. West, 1865 ;) forcing a sentinel placed over his quarters, (G. C. M. O. 164 of 1866.) '• See O'Brien, 154 ; DeHart, 80. " In cases where It appears that the accused has acted In good faith, in ignorance, or under a misapprehension of his strict military obligation, the court has not.unfre- quently recommended and the reviewing authority granted a remission or commutation of the sentence. As in an early case in G. O. 27 of 1835, where the breach consisted In going to the mess-house. And see a similar case in G. C. M. O. 18 of 1867, where It consisted in going to the sutler's store. 122 MILITABY LAW AND PRECEDENTS. Defenees. The nature of the offence is further Indicated by the defences which have been set iip to the charge. Thus it is no defence that the officer was inmcent of the offence for Whith he was ari-ested and conrined. and that the arrest was therefore unwarraiitted." Thfe question of tHe guilt of the accused upon the original charge eiannbt he tried in this proceeding, and evidence offered to show that he was not giility Will be Irrelevant and, inadmissible. Even if innocent ih fact, ills arrest woiii^ not necessa,rily be illegal ; the commander being, in his discretion, authorized to arrest upon reasonable grounds of suspicion. Nor is it any justificatidn for a breach of arrest that the quarters of the pmcer were in bad- repair or otherwise unsuitable as a domicile ;'* or that 'the jtirest, by reason of the unnecessary placing of a guard over the 171 quarters, or otherwise, was unjustifiably severe;" in such cases the offi- cer's proper course is to apply for relief to the commander, or, if he refuses it, to the proper superior. But that the arrest was ordered by an officer without authority to impose it, would be a complete defence : what officers have authority to institute arrests has been heretofore considered. It is also a complete de- fence that, subsequently to his original confinement, the accused has been put on duty or allowed to do duty," provided that, before the breach assigned, he had not been duly re-arrested and re-confined. Acts not constituting the specific offence. The Character of the offence is also illustrated by distinguishing It from certain acts sometimes Charged under Art. 65, but which are properly acts in disobedience of orders or merely acts prejudicial to good order and military discipline. Thus a non-compliance with an order of arrest. In refusing to be arrested or confined, or of an order requiring the officer to report in arrest to a Certain dommander, however grave a dergllC- tion, does not constitute the offence under consideration. NOi- does a transcBild- ing of limits, after larger limits than those of the Original dose arrest contem- plated by the Article have been allowed the officer, constitute the offence, though it may Indeed involve a still higher cfimlnalityi'' So, fdr an afrested officer to quit his company or regiment, when personally with it in the field or on the march, is an offence quite Other than a violation of this Articie; Further, the specific offence being restricted to the single act indicatedj no Infraction or non-observance of any condition or obligatidh incident tb the st&tus of arrest oth^r than that to remain confined till liberated, v^U of itself amouht to such offence. Thus the wearing of his sword by an Officer while con&ned ih arrest, is not, per se, a technical brfeach of arrest, nor is the issiiing of ah 172 order or other assumption of official authority." Nor, again, will drunkdii- ness, disorderly conduct, or other impropei? or criminal act bf which ifl officer, while remaining strictly within his confinehieiit, may be guilty, howe¥6f grossly the same may offend against good order and military discipline, amount to the particular delinquency under corksideratioD;, The ssttihg at liberty. This prd<*eeding of the commanding offiterj which alohe will discontinue the close arrest; may be resorted tb ^rfes§ntly Upon the afi-est, and either by the commander of his own motion or in compliance with " " It dbes not signify whether he was placed In arrest with or without cense." Hough, 494. ™ G. O. of 6et. si, 1809. ^G. O. Of Sept. 22, 1819. a See Hoiigh, (P.) 19. ^ In G. C. M. 6. 37i i)ept. bf Texas, 1874; G^. Augur, in referring td cases bf trans- gressing extended limits of ari-fest, as not '' technicaiiy f ulflliing thfe requirements of " the Article, adds that tlie same " nevertheless involve as much if iidt more iriqral turpitude lii their commibsiont inasmilch as the greatier the liberty accorded id an diBcer, an4 the confidence reposed in jiim, the greater are his obligdtions not to ahtise that confidence." » See De Hattj 80 ; Befi«t, 4T-8. MILITABY LAW AND PEECEDBiraS, 123 an application by the accused, or may be delayed till the trial has been cava- pleted and the judgment finally acted upon,"* But where indeed tbe Mmif^ of the strict arrest have been extended by the commander, as ^ere the ofljcer, confined upon arrest to his quarters, has been allowed the range of the ppst Or station, he is, so far as concerns the application of the Article, &s efCectijaJly " set at liberty " as if the status of arrest had been discontinued altogether, II. Abbest op Cadets. In the main the principles applicable to the arrest of officers will apply to the arrest of cadets, these also being oflScers."" Specific provistops, boweygr, on the subject of the arrest of cadets are contained in pars. 264 to 269 of tlie ifegul^tiSRS of the Military Academy. It is here specified that a cadet when arrested sliftll. (except as further indicated,) "confine himself to his quarters until released" by the Superintendent; and rules are prescribed in regard to his action and status while in arrest. III. Areest of Enlisted Men. This subject is regulated mainly by the 66th and 70th Articles of war, but in part also by Arts. 67, 68 and 69. 173 PBOVISION or ART. 66. This Article declares tb&t ;—" SolfHers charged vrith crimes shall be confined until tried by court-martial, or released by proper authority." General effect. The terms " crimes," like the word " crime " employed in Art. 65 and heretofore interpreted, is evidently a general designation Iptended to include all substantial military offences, both those purely military and those having a civil aspect. This Article prescribes a general rule of administration and discipline. Except so far as may be authorized in the case ot Qaijets, we have in our law no such system of disciplinary punishments, imposable by gOPi- manding ofllcers independently of courts-martial, as is found in the European codes. Our soldiers, therefore, when, as it is expressed in the Article, " charged with crimes," must — to be legally punished— be " tried by eourt-jaartial,," The great majority indeed of their offences are disposed of, comparatively summarily, by the inferior courts. But In all cases, the trial, by the direction of this Arti- cle, is to be preceded by arrest In the form of confinement. Enlisted men, how- ever— and this indeed Is also Indicated by the use of the term " crimes " — should not be confined In arrest for trlfilng Irregularities or petty derelictions. By whom the arrest is to be made. While in a case requiring immediate action the arrest of a soldier may legally be made by any commdssioned ofllcif, or. If none be at hand, non-commlssloned ofilcer, the proper pri:^on in general to inake or order the arrest is' the officer commanding the company or other imme- diate commander of the offender. Such also Is the proper authority to make the arrest of a non-comn»lssloned officer. In practice, hov?ever, a discretion for making arrests of enlisted men on account of ordinary offences is commonly dele- gated by commanders tb 1st sergfeants or other non-commissioned officers. " Precedents of cases of officers convicted of breach of arrest in leaving their quarters and going at large, after their trials had been completed, but before they had been duly released from arrest, are found In G. O. 80, Army of the Potomac, 1862; Do. 43, Dept, 6f the East, 1864 ; G. C. M. O. 15, War Dept., 1866; 86 Ante, p. -65, note. 124 MILITAEY LAW AND PKECEDENTS. Form of the arrest. " The arrest of a soldier is, properly, confinement." " It Is indicated by the authorities" as a reason why confinement is the form of arrest specifically prescribed for enlisted men, that military superiors, if liberty were allowed the prisoner, would not have that security against escape 174 which, as heretofore remarked, they have in the case of an oflScer allowed to be In arrest at large, and that, therefore, to make sure of holding the party, a closer arrest must in general be imposed. As to the Tnode in which the confinement is to be executed — the private soldier, when placed In arrest, is generally confined in the guard-house or other appro- priate place of restraint, a sentinel being usually posted either without or within.'* By a recent order,** however, it is prescribed that soldiers charged for trial by summary court shall not be so confined, but shall be " placed In arrest in quarters before and during trial and while awaiting sentence, unless in par- ticular cases restraint may fee deemed necessary." As to non-commissioned of- ficers, it is directed In par. 996, A. R," that they " will not be confined at the guard-house in company with privates, but will be placed in arrest In their bar- racks or quarters, except in aggravated cases where escape is feared." The phrase "placed in arrest," as here used, evidently imports a mode of arrest Similar to that prescribed for officers by Art. 65. Status of arrest — Treatment. A prisoner is to be presumed to be innocent till duly convicted, and till thus convicted, he cannot legally be punished as if he were guilty or probably so. The arrest by confinement of an enlisted man with a view to trial and for the purposes of trial is wholly distinguished from a con- finement imposed by sentence. It is a temporary restraint of the person, not a punishment, and should be so strict only as may be necessary properly to secure the accused. Anything further is unauthorized." The imposition upon soldiers, while confined In arrest, of disciplinary punishments is. In our service, 175 wholly Illegal. In one of the Orders last cited," Gen. Hancock condemns as unlawful the treatment of a soldier thus confined who was compelled to carry a heavy log for long periods, and, because of such treatment, remits the sentence subsequently imposed by the court. In a case promulgated by him in Orders," Gen, Dix comments with severity upon the fact that three soldiers, ar- rested as deserters, were, before trial, besides being heavily Ironed, paraded in front of the regiment with their heads shaved. In a further Order," the review- ing authority reflects similarly upon the treatment of a soldier who, on arrest, had been Imprisoned in a dark cell for fourteen days with ball and chain. Placing irons on a soldier, while confined In arrest awaiting trial or sentence, can be justified only when the same may be necessary, or a proper precaution, to prevent an escape -or the doing of violence. A resort to manacles may sometimes be required for the reason that no secure guard-house or other sufficient place of » Clode, M. I/., 113 ; Manual, 28. " Samuel, 641 ; Clode, M. L., 113 ; O'Brien, 154. •» Simmons § 358 ; De Hart, 76. As to the form of arrest In cases of retainers, camp- followers and the like, this, in the absence of statutory provision on the subject, must be left to the discretion of the commanding officer, to be guided by the circumstances of tbe particular case. » G. O. 21 of 1891. " This regulation is taken from an almost identical provision formerly contained in the Queen's Regulations. Simmons § 358 ; Griffiths, 25. In the existing British law, the arrest of non-commissioned officers is even more closely assimilated than formerly to that pf commissioned officers. See Manual, 30. ' 81 See O'Brien, 154 ; G. O. 35, Dept. of the Cumberland, 1869 ; Do. 23, Dept. of the Lakes, 1870 ; Do. 106, Dept. of Dakota, 1871 ; G. C. M. O. 4, Dept. of the Columbia, 1881. ^ G. 106, Dept. of Dakota, 1871. ecify the material facts necessary to constitute the alleged offence.* 189 ASSIMTLATED TO THE INDICTMENT. In these requisites, and especially In the second, the Charge resembles the Indictment. These particulars, therefore will be better understood by a reference to those rules for the framing of indictments which are most apposite to military pleadings. But o ur law has prescribed no specific form fo r_th&-gharge-ln-the-i:a.se-jQf-an5: offence,* and for this reason, and because a succinct directness in diction, as well as in action, is of the essence of the military system, the Charg:e is very much brie to, simpler, and le ss technicaLth.aDLis,fli a Indictmen t.' In our practice a chargeTand especially a deification, which fails to set out a legal offence, or is indefinite, redundant, or otherwise defective, may be struck out, in whole or in part on motion. [See Chapter XVI.] But in general a specification is al- lowed to stand without objection, provided it sets forth at least a military neg- lect or disorder, though this may not be the specific offence designated in 190 the charge. Thus the form of the accusation, as framed for trial by a military court, need be and commonly is much less artificial than that of ' See 1 Oplns. At. Gen., 296 ; Kennedy, 69 ; Remarks of J. A. Gen. Sutton in Col. Quentin's Trial, p. 81 ; Macomb, 25 ; O'Brien, 234 ; De Hart, 287, 291-2. As to the similar purpose and use of the indictment, Bronson, C. J., in People v. Taylor, 3 Denio, 95, observes : — " Certainty is required to the end that the defendant may know what crime he is called upon to answer; that the jury may be able to deliver an Intelligible verdict, and the court to render the proper Judgment; and finally that the defendant may be able to plead his conviction or acquittal in bar of another prosecution for the same oflTenca" And see 2 Hale, 187, note 7 ; 2 Hawkins, c. 25, s. 59 ; Starkie, 73 ; 1 Chltty, C. L., 168, 229 ; 2 Gabbett, 198 ; Wharton, C. P. & P. § 166 ; 1 Bishop, C. P. f 506, 507 ; Gould, 71 ; Bex. v. Home, Cowper, 682 ; U. S. v. Mills, 7 Peters, 142 ; D. S. V. Cruikshank, 92 TJ. S., 544 ; Biggs v. People, 8 Barb., 550 ; State ■». Stimson, 4 Zabr., 26. • " If any fact or circumstance which Is a necessary Ingredient in the offence be omitted, such omission vitiates the Indictment. * * * Any fact or circumstance laid in the indictment wlilch is not a necessary ingredient in the offence may be rejected as surplusage." 2 Hale, 187, note 7. " The want of a direct allegation of anything mate- rial in the description of the substance, nature, or manner of the crime, cannot be sup- plied by any intendment or implication whatsoever." 2 Hawkins, c. 25, s. 20. " Every fact which is an element in a prima facie case of guilt must be stated ; otherwise there will be at least one thing which the accused person is entitled to know, whereof he is not informed." 2 Bishop, C. P. I 519. And see 1 Chitty, Pleading, 228. * 7 Oplns. At. Gen., 603 ; Kennedy, 69. Usage, not statute, has dictated the forms of our Charges. '"A specification does not need to possess the technical nicety of indictments at the common law. Trials by court-martial are governed by the nature of the service which demands Intelligible precision of language, but regards the substance of things rather than their forms. » • • Hence undoubtedly the most bald statement of the facts alleged as constituting the offence, provided the legal offence Itself be distinctly and ac- curately described in such terms of precision as the rules of military Jurisprudence re- quire, will be tenable in court-martial proceedings, and will be adequate groundwork of conviction and sentence." Cashing, 7 Opins., 604. And see People v. Porter, 60 Hun., 61. " The charge or charges are, properly speaking, an indictment, and must. In their aubetanee, possess all its essential requisites, although In form the military judicial pro- cedure ia less fettered by peculiar and cnstomary solemnities of expression than the civil." Tytler, 209. And see Remarks of J. A. Gen. Sutton, In Col. Quentin's Trial, p. 81; O'Brien, 232 ; De Hart, 285, 287. In some Instances the form of the indictment has been closely followed In military charges. Note a pointed example in an elaborate and tech- nical specification under a charge of Manslaughter, In G. O. 20, Blfth Mil. Dlst., 1868. 134 ' MILITARY LAW AND PRECEDENTS. an indictment. But in cases of difficulty and importance, tlie criminal indict- ment will -always be the model of the careful military pleader, both for the state- ment of essentials and their orderly and logical ° arrangement. II. RULES FOB FRAMING THE CHARGE DERIVED FROM THE LAW OF INDICTMENTS. THE CHARGE TO BE CERTAIN. " An important requisite in all plead- ing," says Gould,' "is certainty." This requisite, he adds, "implies that the matter pleaded must be clearly and distinctly stated, so that it may be fully understood by the adverse party, the counsel, the jury and the judges." Stephen" writes: — ^"It" (the pleading,) "must be particular or specific, as opposed to undue generality." This rule, Archbold" remarks, is especially to be observed with the gist of the pleading ; matters of inducement or explana- tion, for instance, not calling for the same precision. It is further well said in this connection by Stephen": — "To combine with the requisite certainty and precision the greatest possible brevity is now justly considered as the perfection of pleading." 191 But this authority " subjoins the qualification that — " No great er par- tipiTlarity ja^rgf^irjred than thq^nntiirp oi t he thing pleafle d will Con- veniently admit." Or, as it is expre^edT)y Archbold " — " WhereTEe~offence cannot be stated with complete certainty, it is sufficient to state it with such certainly as it is capable of." And by the former writer the further exception is mentioned," that — "Less particularity is required when the facts lie more in the knowledge of the opposite party than of the party pleading." The rule as to certainty is, as a general principle, applicable to the military Charge in the same manner as to the criminal indictment or declaration of the civil practice," and will properly be observed in framing specifications. Be- ■ " All pleading is essentially a , logical process." In analyzing a correct pleading, " if we talce into view, with what is expressed, what is necessarily supposed or implied, we shall find In It the elements of a good syllogism." Gould, 4. ' Page 71. And see 2 Hawkins, c. 25, s. 71, 74 ; 1 Chltty, P., 169 ; 2 Gabhett, 197, 227; Wharton, C. P. & P. I 151, 16ff; 1 Bishop, C. P. § 323; U. S. v. Mills, 7 Peters, 142 ; State -v. Stimson, 4 Zabr., 25. In the last case the court say : — " But the par- ticularity required is not such as to screen the offender from conviction, or to em- barrass the prosecution with useless technicalities." "Page 132. • Page 88, note 1. And see 2 Gabbett, 199, 236 ; Stephen, 132 ; Wharton, C. P. & P. § 165. The classification by Gould, (p. 141,) of the averments in civil, applicable also to criminal, pleadings, may be noted in this connection, as follows : — "All facts alleged in good pleading consist either, 1, of the gist, or substance, of the complaint or de- fence; or, 2, of matter in inducement," (i. e., introduction or explanation,) or, 3, of matter of aggravation; " everything else, he adds, being " swiiluaage," M Page 422. ; " Page 367. " Page 88, note. 1. " Certainty to a common Intent," (t. e., a reasonable amount of certainty,) " is all that is required." D. S. v. Fero, 19 Fed., 904, citing Stoughton v. State, 2 Ohio St., 562. " Page 370. An indictment need not negative what is matter of defence. 1 Bishop, C. P. § 638 ; U. S. v. Stevens, 4 Wash., 547. " In general, all matters of defence must come from the defendant, and need not be anticipated or stated by the prosecutor." 1 Chitty, P., 231. In Sir Ralph Bovy's Case, 1 Ventris, 217, Chief Justice Hale Is quoted as saying of the allegation of matter which should come more properly from the other side : — " ' Tis liije leaping before one come to the stile." "See Tytler, 209, 214; Kennedy, 69; O'Brien, 234; De Hart, 287. While the gen- eral rules of pleading are substantially the same in the criminal and civil procedure, the practice of the courts is to require greater strictness in criminal than in civil plead- ings ; and in the former greater strictness in indictments for the graver, especially the capital, crimes than in those for mere misdemeanors. 1 Bishop, C. P. § 321. " Military offences," says Kennedy, (p. 73,) are, " with a few rare exceptions, of the nature of misdemeanors." MILITARY LAW AND PRECEDENTS. 135 cause, however, of the exceptional authority possessed by courts-martial In their findings," of correcting errors and imperfections of detail in specifications, by substituting the true item or term, as indicated by the testimony, for the uncertain or incorrect one originally inserted, a military pleading will more readily admit of an uncertain statement, (in an allegation, for example, as to amount, number, quantity or other particular of description,) than will an indictment. NOT TO CONTAIN STJRPLTJSAGE. Strictly, any allegation in a Charge, not properly required for the due and full statement of the ofEence, is 192 surplusage." Stephen," in laying it down that surplusage, which he defines " unnecessary matter of whatever description," is to be avoided, divides it into— (1) "matter wholly foreign," and (2) "matter which, though not wholly foreign, does not require to be stated." Military writers also con- demn all " superfluous " or " extraneous matter," " which is however to be dis- tinguished from matter of Inducement or aggravation. Mere surplusage will al- ways be carefully winnowed out of his pleading by the careful draftsman. M allowed materially to encumber a specification, it may prove a source of con- siderable embarrassment to a court-martial, in bewildering the issue, and par- ticularly in raising in their minds a question whether proof of such matter, In whole or in part, may hot be called for. In point of fact, however, surplusage never requires to be proved, and is not to be taken into consideration by the court in their findings or judgment. In the civil practice, it is often, where wholly foreign, stricken out on motion, and in the military practice a similar course may be taken. But if left to form a part of a pleading or Charge, it cannot affect its legal validity, since utile per inutile nan vitiatur.^ NOT TO BE REPtraNANT OR INCONSISTENT. That is to say, that the material portions of the Charge are not to be opposed in meaning or effect, or to contradict each other. This rule is repeated by all the principal authorities, civil and military." It is an important one, since a failure to observe it may result in nullifying the Charge, or at least the specification in which the repug- nancy occurs." 193 NOB AMBIGUOTIS. That is to say, the Charge must not contain allegations of which the meaning is obscure or equivocal, and which are susceptible of different interpretations." NOB ABGTTMENTATIVE." Or, as it is expressed by Stephen '^ — pleadings " must advance their positions of fact in an absolute form, and not leave them to be collected by inference and argument only." « See Chapter XIX. " See Gould, 41, 142 ; 1 Chitty, P., 173 ; 2 Gabbett, 200 ; Wbarton, C. P. & P. I 158 ; 1 Bishop, C. P., Ch. XXXII. "Pages 422-3. " Griffiths, 61 ; Hughes, 143 ; Macomb, 26 ; O'Brien, 234-5 ; De Hart, 299. » See Stephen, 424 ; Gould, 142 ; 1 Bishop, C. P. I 446, 478. » Stephen, 377 ; Gould, 144 ; Starkie, 273 ; 1 Archbold, 91 ; 1 Chitty, P., 173, 231 ; 2 Gabbett, 199, 235 ; Wharton, C. P. & P. S 256 ; 1 Bishop, C. P., Ch. XXXIV. ; Hough, 41 ; Kennedy, 76 ; De Hart, 287. "> '' Repugnancy Is two Inconsistent allegations in one pleading. As both cannot be true, and there is no means of ascertaining which is meant, the whole will be as though neither existed." 1 Bishop, C. P. § 489. "It takes off much from the credit of an indictment that those by whom it is found have contradicted themselves." 2 Hawkins, c. 25, s. 62. "Stephen, 378; 1 Chitty, C. L., 231; 2 Gabbett, 200; 1 Bishop, C. P. | 510. But " where a matter is capable of different meanings, that will be taken by the court which win support the proceedings, not that which would defeat them." Chitty, 231. 2> i< ijij,g object being to communicate facts and not reasons, an argumentative form of expression, obscuring the facts. Is not adequate." 1 Bishop, C. P. g 508. And see Gould, 55 ; Kennedy, 76. « Page 384. 136 MIIJTAEY LAW AND PBECEDENTS. MATTEB OF EVIDENCE NOT TO BE STATED.* It is not good pleading, in alleging a &ct, to state the circumstances proving or tending to prove its truth." Such are the acts, occurrences and matters of description which should properly form part of the testimony of the witnesses. Such indeed are some matters of aggravation, although such matters are to a reasonable extent allowed to be recited and are not unfrequently added in a military Charge." But, strictly, the only facts apposite to be stated are those constituting the offence in law. Where, however, the Charge is of a general character, especially where it is laid under the 61st, (or, sometimes, under the 62d Article,) the circum- stances, and matters of Inducement and aggravation, surrounding the alleged punishable act of the party, and going to characterize it as an instance of the offence charged, are often required to be more fully set forth than in the case of one of the exact offences, and the rule against pleading matters of evidence is not to be so rigorously applied." 394 NOB MATTEB OF LAW. Any statement of the law, or of conclu- sions or presumptions of law, is altogether out of place In a good plead- ing." As It is observed by Gould" — "Judges are always presumed to know judicially what the law is ; and have therefore no occasion to be informed of It by the pleadings." At to conclusions of law, it is the business of the court to make these for itself, deducing them from the facts as they are stated and ap- pear in evidence. To assume to express such conclusions in a Charge or indict- ment is irrelevant and impertinent. NOB MATTEBS OF WHICH THE COUBT WILL TAKE JUDICIAL NOTICE, EX OFFICIO. It is remarked by Stephen " that " besides points of law, there are many other matters of a public kind of which the court takes ofiScial notice, and with respect to which it is, for the same reason, unnecessary to make allegation In pleading." Such are — the law of nations ; the provisions of the Constitution, public statutes, executive proclamations; a^nd, (in the mili- tary practice,) the formal General Orders, circulars, and other publications to the army emanating from the War Department ; the political frame-work, officers and operations of the government ; matters of public history ; the powers of the President and heads of departments ; the " established and usual course " of the proceedings of Congress ; the main geographical features and the local divisions of the country ; the " meaning of words in the vernacular language;" the " course of time ;" the " legal weights and measures ;" the current coins and other cir- » Stephen, 342 ; 1 Chitty, C. L., 231 ; U. S. v. Bachelder, 2 GalUson, 15 ; Evans v. V. S., 153 U. S., 684 ; Stokes v. U. S., 157 U. S., 191. " Stephen, 342. This author adds, (p. 346,) that this rule tends perhaps more than any other to prevent " minnteneBs and prolixity of detail." "The statement of the law by O'Brien, (p. 234) that — "All aggravating circum- stances of the guilty act must be alleged in the specification," or they cannot be put In evidence. Is of course erroneous. ^ As a kindred rule to that excluding matters of evidence, may be noted here the one given separately by Stephen, (p. 353,) that — " It is not necessary to allege circum- stances necessarily implied." » Stephen, 345, 346. I Chitty, C. L., 231 ; 2 Gabbett, 199, 229 ; Wharton, C. P. & P. I 154 ; 1 Bishop, C. P. 5 329, 514, 515 ; Eex. v. Lyme Ecgls, 1 Doug., 159. In U. S. v. Almeida, Whart. Prec, 1061, Kane J. remarks : — " It is not enough, and never has been, to charge against the party a meii legal conclusion, as Justly inferential from the facta that are not themselves disclosed on the record. You may not charge treason, murder, or piracy, in round general phrases. You must set out the act which constitutes It In the particular case." In some cases of familiar military offences, of which the con- stituents are simple and generally the same, this rule is not strictly observed, as In cases of deserUon fcr example. See post. » Page 43. " Page 349. And see 1 Chitty, C> L., 231, MrUTABY LAW AITO PEECEDENTS. 137 cnlatlng medium." " in" fine," adds Greenleaf," " courts wlU generally 195 take notice of whatever ought to be generally known within the Umlts of their jurisdiction." All matters of this description, therefore, do not need to be aUeged, or enlarged upon, as facts, in the pleading or Charge; such allusion to them as will indicate what is meant or referred to being all that Is necessary." STATEMENT OF NAME, OFFICE, BANE, &c. The name of the accused should be given with such particularity as to Identify him and distinguish him from any other person." It is held by the U. S. Supreme Court," and gen- eraUy by the courts of the States," that the middle name is no part of the legal name, and may be omitted in stating it. The good pleader, however, will prefer to add it, or its Initial, if within his knowledge; and it must be added where necessary to distinguish the person. Where the accused is known by two names, as in a case of a soldier re-enlisting under an assumed name In violation of the 50th Article of war, and it is doubtful which name is his true one, he may be distinguished by either, the other being added under an alias." The rank, office, regiment, corps, capacity, &c., of the accused are, by invariable usage, set forth in a military pleading, and should always be added, whether the accused be an officer or enlisted man, or a retainer, camp-follower, 106 &c." If no military rank, office, or employment were given, the pre- sumption would be that the party was not within the jurisdiction of a court-martial. Where since the date of his alleged offence the accused has been promoted, he should properly be designated at the commencement of the specification as of his present rank, but in describing the commission of the offence, Oie rank which he held at the time should be stated." As by the words — "he the said A. B. then being," (specifying his former rank and office,) or in terms to such effect. And so, in the case of any other change In the military status, as of regiment, arm, corps, &c., which has intervened since *> See 2 Hawkins, c. 25, a. 100 ; Stepben, 347-349 ; 1 Greenl. Bt. § 5, 6. » 1 Et. i 6. « Stephen, 348. "See Stephen, 3011 Starkle, 49, 203; 1 Chitty, C. L., 202; 1 Archbold, 78; Wharton, C. P. & P. § 96. ""The law knows of but one Christian name, anfl the omission or insertion of the middle name, or of the initial letter of that name, is immaterial." Games v. Stiles, 14 Peters, 327. And see Keene v. Meade, 3 Peters, 7 ; Lessee of Dunn v. Games, 1 McLean, 321 ; also 2 Opins. At. Gen., 332, 3 Id., 467. " Hart V. Lindsey, 17 N. H., 235 ; Franklin v. Tallmadge, 5 Johns., 84 ; Boosevelt v. Gardiner, 2 Cow., 463 ; Bratton v. Seymour, 4 Watts, 329 ; Price v. State, 19 Ohio, 53 ; State V. Martin, 10 Mo., 361 ; State v. WUliams, 20 Iowa, 98 ; Erskine v. Davis, 25 Ills., 251 ; State v. Manning, 14 O^ezas, 402 ; People v. Lookwood, 6 Cai., 206, &c. "Junior," or "Jr.," Is no part of the legal name. 1 Bishop, C. P. i 687, and cases cited. " See Simmons S 390 ; and compare 1 Chitty, C. L., 203 ; 2 Gabbett, 214, 217 ; Whar- ton, & P. & P. S 99, 103 ; 1 Bishop, C. P. § 681. "Tytler, 214; Kennedy, 70; Simmons § 388; G. O. 22, Army of the Potomac, 1861. It Is never necessary in a military charge to set out the fact of the appointment or commission of an officer. "In an indictment against a public officer for a breach of duty, it Is sufficient to state generally that he is such officer, without setting forth his appointment to the office." 1 Chitty, C. L., 231. In military charges It is not the practice even to state, by a direct allegation, that the accused, (or other officer referred to,) is such an officer; the description of the office being merely added, as ft designa- tion, to the name of the party— as "A. B., Captain, First Regiment of Infantry, United States Army ; " or " Captain A. B., First Regiment," &c. "See 3 Opins. At. Gen., 548. The mere fact, however, that the rank of the accused is misstated does not vitiate a specification, if there is no question as to the identity of the party. G. O. 38, Army of the Potomac, 1863. 138 MILITARY LAW AND PRECEDENTS. the alleged criminal act. Errors, however, in the statement of rank, regiment, &c., are such as may be corrected by the court In the Finding. Similar rules apply, though with less strictness, to the statement of the name, office, &e., of a person or officer Injured, disobeyed, disrespectfully ad- dressed, &c., by the accused," or other party material to be mentioned in the pleading." If the name of the person is not known, he should be referred to In the specification as " a person imknown," or in words to that effect. STATEMENT OF TIME AND FLACE. While it is laid down as a general rule by the authorities that the time, (year, month, and day of the month,) and the place, of the alleged criminal act, should be stated with certainty, it Is also held that, where not of the essence of the offence, the precise day and exact locality of Its com'mlssion are immaterial and need not be averred ; it being sufficient simply to allege a time and place within the jurisdiction of the 197 court." In military charges there is still greater margin allowable, since the place ov region of jurisdiction is much more extensive than that of the county, district, State, &c., to which the jurisdiction of the criminal courts is limited. Thus if a specification to a military charge Is so framed as to advise the accused of the particular act of offence intended to be alleged, and enable him to plead a former conviction or acquittal If subsequently brought to trial on account of the same act, it will be strictly sufficient In law if it set forth a time within the limitation of Art. 103, and a place within the United States,** (or within the territory of a foreign country when, by reason of war or otherwise, the army is authorized to be there.)" But this latitude need rarely be availed of, and it Is always desirable that the time and place should be stated exactly, or as nearly so as practicable. Where they are not precisely known. It is the practice to describe the offence as having been committed " on or about " a certain date and " at or near " a certain locality named ; the date and locality specified be.ing the nearest ascertainable.** Where the offence is one which has been committed from one day to another, or commenced on one day and completed on another, it may properly be alleged in the specification to have been committed on or between certain days 198 named ; *' but if these dates are so far apart that the offence Intended to be charged cannot reasonably be distinguished, the pleading is defective, " G. C. M. 0. 61, Dept. of the Mo., 1871. And compare State v. Irwin, 5 BlacM., 343 ; Wharton, C. P. & P. § 109. " See Butler v. State, 5 Blackf., 280. If not known by name, the party may be de- scribed as a " certain person unknown." 1 Bishop, C. P. § 378 ; Wharton, X;. P. & P. i 111. « 1 Chitty, C. L., 224 ; 1 Archbold, 85 ; Stephen, 392 ; Wharton, C. P. & P. § 120, 139 ; 1 Bishop, C. P. § 375, 386 ; V- S. v. Burch, 1 Craneh, C. C. 37 ; Johnson v. V. S., 3 McLean, 89 ; McBryde v. State, 34 Ga., 203. ** " The Secretary of War directs that it be announced to the Army, for the information and guidance of courts-martial, that although in the specification to charges, time and place ought to be laid with as much certainty and truth as may be practicable, still it is gUriHeient m law to prove the offence to have been committed at any other place and time within the Jurisdiction of the court." G. O. 16 of 1853. And see Simmons § 394 ; De Hart, 288; Digest, 230. And compare 1 Opins. At. Gen., 295-6, (Lieut. Gassaway's Case.) That time and place need not be strictly proved as laid, see Q. O. 6, Dept. of Dtah, 1861 ; Do. 57, First Mil. Dist., 1867 ; Digest, 232. « S^e Chapter VIII. " Simmons § 394 ; Harcourt, 115 ; Macomb, 26 ; O'Brien, 235 ; De Hart, 291 ; Digest, 230-31. In the British practice, the word " between " — as between certain dates named— Is often used in allegations of time. Story, 55. These alternative forms would proba- bly not be regarded as admissible by the criminal courts. See D. S. v. Crittenden, Hemp- bUl, 61. « DiassT, 231. And see Simmons S 394 ; 1 Bishop, C. P. % 396, 897. MrLITAEY LAW AND PBBCEDElirTS. 139 and, upon exception taken by the accused, by motion to strike out,** or otlierwise, should be required by the court to be amended." In some cases the offence committed Is of a continuing character, extending over a considerable period of time or exhibiting a general habit or course of conduct In such cases where distinct acts cannot readily be separated and attributed to particular dates, it is allowable to charge the misconduct in form somewhat as follows: "This during (or in or between) the months of ," (specifying the particular months or other periods") A continued non-payment of a debt charged as dishonorable conduct under Art. 61 may be described as to time, thus — "This on or about (a date named) and continuously up to the present time; " oj^-"This from (a date named) to the present time." In such cases the charge should be dated. As it has been held by the Judge Advocate General, the allegations of time and place may be omitted altogether, without affecting the legal validity of the proceedings or sentence, provided the same sufficiently appear from the 199 testimony in the record." Such an omission, however, would be negligent and hazardous, and is now of rare occurrence." The hour of the day or night at which a certain alleged act took place heed never be specified, unless part of the gist or essence of the transaction upon which the charge is based." Thus, in a charge against a soldier for sleeping on his post as a sentinel, it will generally be desirable, as more accurate, to designate at what hour, or between what hours, he was found asleep, in order to identify the time with that of his regular turn of duty." STATEMENT OF QTJAIiITY, QUANTITY, NTJMBEB, KIND, VALTTE, &c. Especially where a party is charged with the larceny, embezzlement, &c., of property, it is proper that the quality, quantity, number, kind, value, denomi- nation, Sec., of the moneys or articles stolen, appropriated, &c., should be speci- fied sufficiently clearly to identify the same," although the utmost exactness is not required." The value of the property stolen is a particular held especially essential to be stated in an indictment for larceny ; since " in order to make the " See Chapter XVI. « Digest, 231 ; 6. C. M. O. 16, Dept. of the Mo., 1890. And see cases In G. O. 193, Dept. o( the Potomac, 1862 ; Do. 98, Dept. of N. Mexico, 1862 ; Do. 36, Dept. of the Mo., 1863. In Capt. Trenor's Case, published in G. O. 4 of 1842, the accused was charged with drunkenness on duty between Sept. 1st and Dec. 31st, 1840, and objected to the specification as including " such a length of time as to prevent the possibility of either disproving it or defending himself against it." His objection was sustained by the court, and the charge and specification were " accordingly thrown out." The proceedings were approved by the President. » See instance in G. C. M. O. 10 of 1878. In the case of Brig. Gen. Hull, Printed Trial— Appendix, the time, as of a continuing offence, was set forth in the first charge, thus — "Treason against the United States between the ninth of April and the seven- teenth of August, 1812." The third charge is similarly expressed. In the second charge the place, as well as the time. Is set forth as follows — " Cowardice at and in the neighborhood of Detroit, between the first day of July and the seventeenth day of August, 1812." 'I Digest, 231 ; G, 0. 64, Middle Dept., 1863, Do. 57, First Mil. Dlst. 1867. ™See G. C. M. O. 42, Dept. of Texas, 1875, where, no date being given in the speci- fication, and none appearing in the testimony, the proceedings were disapproved. " " It is not necessary to mention the hour in the indictment ; except, perhaps, in cases of iurglary, where it is usually laid for the purpose of showing with more cer- tainty that the offence was committed in the night-time and not during the twilight." 2 Gabbett, 222. « See Simmons § 394. « Stephen, 296; Starkle, 218; 1 Chitty, C. L., 235; 2 Gabbett, 232; Wharton, C. P. & P. 5 206 ; 1 Bishop, C. P. § 576. " See under the rule as to Certainty, oMte, that only such particularity is required as the nature of the subject reasonably admits of. 140 MHJTAKY lAW AND PRECEDENTS. stealing of any article larceny at the common law. It must be proven to be of some value." " In a milital7 charge there Is not the same necessity 200 for accuracy in the statement of quantity, number, or amount, since the court in its Finding can always rectify the item according to the testi- mony. As to value, a specification which omitted to assign a value to an arti- cle alleged to have been the subject of larceny would not be held defective if the article were such as presumably to be of some value, at least to the owner. The value of stolen property is in fact frequently omitted to be stated In a military charge. It should be alleged, however, if only for the purpose of assisting the court in determining whether the accused, upon conviction, may, (in view of the law of the State, &c., as to the punishment,) be sentenced to Imprisonment In a penitentiary under Art. 97 of the code. STATEMENT OE WRITINGS. A writing may, ordinarily, be set out verhatim- or in substance only. But where its terms enter into the very gist of the offence, as in the case of an instrument alleged to have been falsified or forged, a precise copy should be Inserted if practicable." So, in all cases where, although it may not be necessary to give it, a copy is professed to be exhibited, it should of course be a copy, i. e., in the exact words of the original." If a writing essential or desirable to be set forth literally has been lost or 201 destroyed, or is in the possession of the accused, the fact will properly be averred by way of explanation of its non-statement, and its substance be given as nearly as practicable." So, where its contents are indecent and im- proper to be recited, this should be explained, the substance and effect of the paper being at the same time presented. A writing/ of which the original is expressed in a foreign language, should in general be given in English, with an averment to the effect that the version is a translation." When the substance " State V. TlUery, 1 N. & McC, 11. " It Is necessary that some specific value should be assigned to whatever articles are charged as the subjects of larceny. An indictment cannot be sustained for stealing a thing of no intrinsic or artificial value." Wharton, C. P. & P. § 213. The ovmership of property or money stolen or embezzled should also be set forth. 1 Bishop, C. P. S 581, 582, &c. Where the name of the owner Is unknown and cannot be ascertained, he may be referred to as a " person unknown." ■» Wharton, C. P. & P. § 167 ; 2 Bishop, C. P. § 403. " Where part only of the written instrument is included in the offence, that part alone Is necessary to be set out." De Hart, 293. " In stating a libel or perjury, it is necessary only to set forth so much of the matter as renders the offence complete, provided the part omitted does not in any way alter the sense of that which is set out" 1 Chitty, C. L., 235. In an indictment for perjury it Is only essential to set forth the substance of the oath, or that portion in regard to which the perjury is alleged to have been committed. People i;. Warner, 5 Wend., 271 ; Campbell v. People, 8 Id., 638. "A copy in pleading is usually introduced by some such espression as — "In these words ;" " as follows, viz ;" " In the words and figures following, to wit ;" " of which the following is a copy;" or, more technically, "In tenor following;" — ^the term tenor being employed in pleading to Indicate a transcript of the original instrument, in contra- distinction to substance or purport. When the substance only of the writing is to be set out, the ordinary introduction is — " in substance as follows, viz ;" " to the effect," (or " purport,") " following, namely, that," &c. See 1 Chitty, C. L., 233 ; 2 Gabbett, 201 ; Wharton, C. P. & P. S 168-170 ; 1 Bishop, C. P. § 559-561, and eases cited. "Uarhs of quotation used in an indictment for libel, to distinguish the libellous matter, are not sufficient, per se, to Indicate that the words thus designated are the very words of the alleged libel." Com. v. Wright, 1 Cush., 64. "Wharton, C. P. & P. § 176. "» See 1 Chitty, C. L., 175, where is stated the general rule that indictments, which were at an early period written in Latin, " must be in English." Hale, (2 P. C, 169,) writing about the middle of the seventeenth century, says : — " Regularly every indict- ment ought to be in Latin, as all pleadings in the courts of law ought to be ; and It Is of excaient use because, it being a fixed regular language, it is not capable of so many changes and alterations as happen in vulgar languages." In Rex v. Goldstein, B. & B., C C, 473, an indictment for the forgery of a Prussian treasury note, not containing a translation of the same, was held defective. MILITARY IjAW AND PRECEDENTS. 141 or purport only of a writing Is stated, its terms should be expressed according to their legal effect; that is to say as they operate or take efEect in law." In military charges, where the writing is of a brief and simple characteiv-as in the case of a general or special order alleged to have been disobeyed by the accused, or an official communication alleged to be disrespectful, &c.— it Is pref- erable to recite it in full. Where the writing is more elaborate, or contains an extoided array of figures or other details, its substance or material portion only will preferably be set out." The original or a copy may however be ap- pended to the Charge, a reference to the same as thereto annexed and forming part of the Charge being made in the specification ; " this arrangement how- ever Is rare in the military practice. STATEMENT OE WORDS SPOKEN. The authorities are quite strict in holding that spoken words, (where not too indecent, in which case their 202 substance may be given,") should be literaUy set forth in an indictment, when their character and effect— as that they are defamatory, scandalous, blasphemous, &c. — ^is the gist of the accusation." Similarly in a military charge such words should be recited as uttered, or as nearly so as practicable. Thus a specification to a Charge under Art 19, or Art. 20, which averred merely that the accused used disrespectful language against the President, or toward his commanding officer, without stating the words or at least their substance, would be defective, and the court, upon exception taken, would properly require it to be amended. STATEMENT OF STATUTORY OFFENCES. In setting forth in an indictment an act made an offence by statute, the strict rule requires that the words of the description should be closely followed ; " and it is always suffl- cient,^ and safest, to so follow them. It has been held, however, in some of the U. S. courts, that the exact language of the statute need not be employed, provided the description be adopted with a substantial accuracy.** As all military offences are statutory offences, this rule, (with Its 203 quaUflcation,) applies directly to military charges; but the Articles of " Stephen, 389 ; D. S. v. Keen, 1 McLean, 441. "Tbus, In pharging tbe offence of procuring a double payment, the pay account need not he set forth in full, though this has sometimes been done. "Com. V. Tarbox, i Cush., 72. " See Bombay K., 2, 3 ; also Instances in G. O. 6, Dept. of Utah, 1861 ; Do. 32, Dlv. Atlantic, 1878. " 2 Hawkins, c. 25, s. 59 ;• 2 Gabbett, 232 ; Wharton, C. P. & P. § 203. In Eex. v. How, Strange, 699, it was held that it was not sufficient to allege that the defendant used scandalous, threatening and contemptuous words against a magistrate, but that the words themselves must be set out. In Rex. v. Popplewell, Id., 686, the report is — "Conviction for profane cursing and swearing was quashed for want of the particular oaths and curses being set out." " 1 Chltty, C. L., 281 ; 2 Gabbett, 239 ; Wharton, 0. P. & P. I 220 ; 1 Bishop, C. V., Ch. XXXIX. "Where the words of the statute are descriptive of the nature of the offence, the indictment must follow the very words, and expressly charge the offence upon the defendant." State v. Gibbons, 1 South., 51. " It is a general rule that all indict- ments upon statutes, especially the moat penal, must state all the circumstances which constitute the de&nition of the offence in the Act, so as to bring the defendant precisely within it." State v. Fostra-, 3 McC., 444. "If a part of the description of the of- fence consists of a negative proposition, it is as necessary in an indictment for that offence to state the negative as the affirmative part of the description." TJ. S. v. McCormieb, 1 Cranch, C. C, 598. " U. S. V. Armstrong, 5- Philad., 277 ; People v. Taylor, 3 Denio, 93. And see U. S. v. MillB, 7 Peters, 142 ; State v. Abbott, 11 Poster, 434. " See D. S. V. Bachelder, 2 Gallison, 18 ; Do. v. Deming, 4 McLean, 3. Hawkins, (vol. 2, c. 25, s. 100,) mentions, as a good reason for not requiring the highest exactness in the statement of statutory offences, that — "the judges are bound ea offldo to take notice of all public statutes." And see 1 Bishop, C, P. I 608. 142 MILITARY LAW AND PRECEDENTS. war, under which nearly all such charges are laid, are so brief, and so simple in their terms, that there is in general no difficulty In framing allegations to meet their provisions. Tlie only two points ruled upon by the authorities in this connection which need be noted here are, (1) that when the Article or other statute specifies an exception or exceptions to its general operation, It will in general be proper to negative the same in describing the offence In the specifica- tion ;" and, (2) that where the Article or other statute enumerates two or more similar forms of offence or phases of the same offence in a disjunctive form, they should, (if averred together,) be averred conjunctively;'^ or. In other words, where criminal acts, which may be imputed in the same count or Charge without duplicity, are stated in the disjunctive in the statute, they should. If pleaded together, be expressed in the conjunctive form." This point will be further illus- trated in treating of " double " pleading. STATEMENT OP INTENT. It Is laid down, generally, by Chitty," 204 that — " where an evil intent accompanying an act is necessary to consti- tute such act a crime, the intent must be alleged in the indictment." But in military cases the intent of an act need not be added to the statement of its commission, unless required to be by the terms of the statute on the subject, or. In other words, unless the Article or other statute creating and describing the offence malies the intent, in terms, an element of the criminal act." Thus Arts. 3, 5, 8, 14, 15, 16, 27, 45, 50 and 59 declare that if officer or soldier, as the case may be, " knowingly," or " wilfully," or " knowingly and wilfully," commit a certain act, he shall be amenable to trial and punishment. So, in Art. 60, the terms " knowing," " knowingly," " Imowlngly and wilfully," " wrongfully and know- ingly," and " with intent to defraud," are employed as indicating the purpose with which the different acts denounced must be committed to constitute them offences within the law. In all these Instances the intent should properly be expressly averred in the Charge, and in the word or words in which it is desig- nated in the statute. On the other hand, in cases of crimes which in their very nature involve a malicious or wrongful intent, as those Of manslaughter, robbery, larceny, rape, perjury, &c., specified in Art. 58, or chargeable, (when directly prejudicing the service,) under Art. 62, while the common law form of indictment may be followed, it is allowable to charge the offence simply by its name, without employing in the specification words expressive of the Intent, as " wilfully," " maliciously,'' " feloniously," or the like. "> " If there be any exception contained in the same clause of the statute which creates the offence, the indictment must show negatively that the defendant, or the subject of the Indictment, does not come within the exception. If the exception or proviso be in a sub- sequent clause or statute, or although in the same section, yet if It be not incorporated with the enacting clause by any words of reference, it is, in that case, matter of defence for the other party, and need not be negatived in the pleading." Monthly Law Reporter, 6 N. S., 77. And see U. S. •». Pond, 2 Curtis, 85 ; Com. o. Maxwell, 1 Pick., 141 ; 1 Ben. & Heard, L. C. C, 250, notes. "Stephen, 386; 2 Gabbett, 200; Gould, 55, note; Wharton, C. P. & P., f -161, 162; 1 Bishop, C. P., § 585, 586 ; Rex v. Stocker, 1 Salk., 342 ; Rex v. Middlehurst, 1 Burr, 399 ; tr. S. V. Almeida, Whart. Prec, 1061, note ; State v. Morton, 27 Verm., 310 ; State v. Price, 6 Halst., 203 ; Rasnick v. Com., 2 Va. Cas., 356 ; Kirby v. State, 1 Ohio St., 185. " Where a statute, defining crimes and prescribing their punishment, describes disjunctively under a single head certain offences which are of such a character that a single transaction may include the commission of one or more than one of them, a count of an indictment charging them conjunctively may be sustained by proof of the commission of only one of them." U. S. v. Armstrong, 5 Philad., 273. '- The 60th Article of war is the most conspicuous military statute of the class Indicated. But distinct offences, made punishable by the same article, should not be charged In an altetfuitive form, but separately. See Sbventbenth Abticlb — Chapter XXV. " C. li., 233. » See Simmons S 407 ; De Bart, 29S ; G. O. 28 of 1859. MILITARY LAW AND PBECEDENTS. 143 DIPFERENT STATEMENTS OE SAME OFFENCE. It is laid down by Ohitty " that — " It Is frequently advisable, when the crime is of a complicated nature, or it is uncertain whether the evidence will support the higher and more criminal part of the charge, or the charge precisely as laid, to insert two or more counts in the indictment." And Wharton" writes — "Every cautious pleader will Insert as many counts as will be necessary to provide for 205 every possible contingency in the evidence ; and this the law permits." In military cases where the ofEence falls apparently equally within the pur- view of two or more articles of war, or where the legal character of the act of the accused cannot be precisely known or defined till developed by the proof, It is not unfrequent In cases of importance to state the accusation under two or more Charges" — as indicated later in this Chapter. If the two articles impose different penalties, it may, for this additional reason, be desirable to prefer separate charges, since the court will thus be invested with a wider discretion as to the punishment. Where, however, the case falls quite clearly within the definition of a certain specific article, to resort to plural charges is neither good pleading nor just to the accused. At most^ in such cases, a single addi- tional charge under Art. 62 should In general suflSce. An unnecessary multipli- cation of forms of charge for the same offence is always to be avoided." In view of the peculiar authority of a court-martial to make corrections and substitutions in its Findings, and to convict of a breach of discipline where the proof falls to establish the specific act alleged, the charging of the same offence under different forms is much less frequently called for in the military than In the civil practice. RULE AS TO DTJPLICITT. An indictment or count in which two or more separate and distinct offences, whether of the same or a different nature, are set forth together, is said to be double, and such a pleading is bad on account of duplicity." This rule, however, does not apply to the stating together, in the same count, of several distinct criminal acts, provided the same all form parts of the same transaction, and substantially complete a single occasion of offence. Thus it has been held that assault and battery and false imprisonment, when com- mitted together or in immediate sequence, may be laid in the same count with- out duplicity, since "collectively they constitute but one offence."" 206 So it is held not double pleading to allege in the same count the larceny of several distinct articles appropriated at the same time and place." A further description of cases is to be noted as not within the rule, or as con- stituting an exception to the rule, — vis:., cases of statutory offences or phases of offence of the same nature, classified in the enactment as of the same species and made similarly punishable. In a case of this class it was observed by a ■» 1 C. L., 248. '" C. P. & P. S 297. And See 1 Archbold, 93 ; Com. v. Webster, 5 Cush., 321. " " The commander who prefers a charge may, In the exercise of a just and legal discretion, when the act may fall under different articles of war, elect under which to charge it, or may charge it variously as in the several counts of an indictment" G. O. 18 of 1859. ™See G. O. 19, Dept. of the Columbia, 1872; G. C. M. O. 95. Div. Pacific & Dept. of Cal., 1881. ™1 Chitty C L., 253; Starkie, 271; 1 Archbold, 95; Stephen, 251, 262; 2 Gabbett, 201 234 • Gould, 389 ; Wharton, C. P. & P. § 243 ; 1 Bishop, C. P., Ch. XXVIII ; also Hough, (Practice,) 40; Simmons § 401 ; Griffiths, 61; De Hart, 298; Digest, 229. "Francisco o. State, 4 Zabr., 30. M State V. Williams, 10 Humph., 101 ; Lorton v. State, 7 Mo., 55 ; Wharton, C. P. & P. i 252. And see case In DioiST. 229-30. 144 MILITABY LAW AND PBECEDENTS. U. S. court" that the several criminal acts Indicated may be regarded as "rep- resenting each a stage In the same offence, and therefore properly to be coupled in one count." ** So, in mlUtary law, the similar acts spedfled in the separate paragraphs of Art. 60 may, in general, be Joined in the same Charge without incurring the fault of dupUcity. Thus It may be alleged that the accused did mak^ and cause to be made, and present and cause to be presented, for payment, a claim, &c., knowing the same to be fraudulent, &c. ; or did embezzle, and knowingly and wilfully misappropriate and apply to his own use, property of the United States, &c."* 207 The point under consideration is illustrative of the rule of pleading statutory offences heretofore considered, that, where acts which may be charged together without duplicity are expressed in the statute disjunc- tively, they should, when averred together, be expressed conjunctively. But notwithstanding the form of statement thus sanctioned, the careful military pleader will always preferably set forth 6j/ itself the form of the offence of the accused where it can he dearly distinguished. Instead of coupling or blending it with another form in the same specification. Thus, if it is clear that the accused personally presented the claim alleged to be fraudulent, he will properly and preferably be charged simply with presenting, and not with pre- senting and causing to be presented. If it is doubtful whether the claim was presented personally or through another person, the offence may well be pleaded conjunctively according to the forms above cited. It may be added that double pleading, consisting sometimes in Joining two or more separate and distinct Instances of the same offence, but more freguently In blending different specific offences, in one specification, has been a not un- common fault in our service, and has been repeatedly condemned in Orders." It remains also to notice, under this head, the two minor points indicated by the authorities — that mere surplusage or Immaterial matter cannot avail to make a pleading double ; " while, on the other hand, matter which is material may have such effect though it be defectively pleaded." "V. S. V. Sander, 6 McLean, 600. " In tills case wblch arose under a statute of Marcb 3, 182S, which provided that any person who should " secrete, embezzle, or destroy a mail of letters," should be sub- ject to a certain punishment, it was held that a count, alleging tbat the defendant " did secrete and embezzle " a mail, was not bad for duplicity. And see U. S. v. Mills, 7 Peters, 142 ; C. S. v. Bacbelder, 2 Oallison, 15. In the further case of U. 8. v. Arm- strong, 5 Philad., 273, it was held tbat a count was good and not double which charged the defendant with " transmitting to and presenting at, and causing and procuring to be transmitted to* and presented at, the ofiSce of the Commissioner of Pensions a forged writing, for the fraudulent purpose of obtaining a soldier's bounty land, though the only act of the defendant was putting the forged letter with the guilty purpose into the post office at Philadelphia, directed to the Commissioner of Pensions at Washington." See the similar ruling in the late case of U. S. v. Hull, 4 McCrary, 274, (and 14 Fed., 324,) and. compare State v. Haney, 2 Dev. & Bat, 403 ; Rasnlck v. Com., 2 Va. Gas., 356; State v. Morton, 27 Vt., 310; Clifford v. State, 29 Wis., 327; Maclcey v. State, 3 Ohio St., 362 ; Starkie, 246 ; 1 Bishop, C. P. § 586 and cases cited. " But the stealing made punishable In the same clause would not properly be charged conjunctively, (or disjunctively,) with embezzlement the two being distinct offences in law. ■• See G. O. 3, 83, Dept. of the Mo., 1863 ; Do., 40, Dept. (rf the Ohio, 1864 ; Do. 9, Dept. of the Gulf, 1866; G. C. M. O. 80 of 1875; Do. 8, Dept. of Texas, 1878. The instances of this fault appear to have been more frequent and marked In the Bnglisb service. See, for example, the cases, In James' Collection, of Comet Ashbumham, p. 113 ; Ueut. Duckett, p. 2ia; Ast. Surgeon Martin, p. 364 ; Elnsign Qunter, p. 487, Ac' "Stephen, 259; Gould, 142; 1 Bishop, C. P. 9 440; State v. Palmer, 35 Maine, »; Green v. State, 23 Miss., 609. " Stephen, 261. And see Gould, 142. MILITAEY lAW A2TD PBBCBDBNTS. 145 JOINSES. Although a count of an indictment may not regularly charge more than one distinct and separate offence, it may, in a proper case, charge that offence against several defendants as having been committed by them con- jointly. As it Is laid down by the authorities,—" When more than one 208 Join in the commission of an offence, all, or any number of them, may be jointly indicted for it, or each of them may be indicted separately."" * * * " There are some offences in which the agency of two or more Is essen- tial," and in an indictment for which " less than two cannot possibly be joined," as conspiracy and riot." But whenever the offence is, In its nature, several, there can be no joinder." The joining of several persons In one Charge, though not unfrequent during the late war," Is not now common in the military practice, but may always be resorted to where a single act of offence has been committed by two or more soldiers or officers in concert and in pursuance of a common intent." The 209 Charge of " joining In a m>utiny "—an offence made punishable by Art 22 of the code— is that which presents the most frequent examples of joinder at military law. But the mere fact that several persons happen to have comv mitted the same offence at the same time does not authorize their being joined in the Charge." Thus where two or more soldiers take occasion to desert, or absent themselves without leave, in company, but not in pursuance of a common un- lawful design and concert, the case is not one of a single joint offence, but of several separate offences of the same character, which are no less several in lam though committed at the same moment." » Starkie, 34 ; 1 Chitty, C. L., 255 ;.l Archbold, 96 ; 2 Gabbett, 231 ; Wliarton, C. P. & P. § 301 ; 1 Bishop, C. P., Ch. XXIX. »See Wharton, C. P. & P.§ 305, 306; U. S. v. Cole, 5 McLean, 523; Com. v. Manson, 2 Ashm., 31 ; State v. Tom, 2 Dev., 574. "> Starkie, 42 ; Wharton, C. P. & P. § 302. Thus two or more cannot be Joined in an indictment for perjury. 2 Hawkins, c. 25, s. 89, note 1 ; Rex v, PhUlips, Strange, 921. " Or for seditious or blasphemous words, or the like, because such offences are in them- selves several." 2 Hale, 174, note 11. " Where the offence Indicted doth not wholly arise from the joint act of all the defendants, but from such act joined with some personal and particular defect or omission of each defendant, without which it would be no olTence, • • • the indictment must charge them severally and not jointly." 2 Hawkins, c 25, 8. 89. And see 2 Gabbett, 252. In TJ. S. v. Kazinski, 2 Sprague, 7, four parties were jointly Indicted for " enlisting and entering " themselves as soldiers In the service of a foreign power, in violation of the neutrality act of 1818. It was held by Sprague, J., that this was an offence " in which but one could have participated ;" adding — " No one could be guilty of the offence of another person's enlisting himself, which was the offence In these counts charged. Bach of these counts charged four persons jointly with an offence which by law is several only, and can under no circumstances be joint. These counts must be stricken out." 1 Among the most conspicuous instances were cases in the following Orders, where the number of the accused as Joined in the charges and trials were as follows : — ^Eighteen la G. C. M. O. 6, Dept of Ky., 1866 ; Twenty-one in G. C. M. O. 62, Dept. of Texas, 1873 ; Twenty-three in G. O. 175, Fifth Mil. Dlst., 1869 ; Thirty-two in G. O. 38, Dept. of the Platte, 1867 ; Thirty-four in G. C. M. O. 521, War Dept., 1865. "DloiiST, 232; Kennedy, 73-74; Hough, (Practice,) 42; Simmons § 402; Q. O. 78 of 1872. And see G. O. 10, Dept. of the Platte, 1871, where two soldiers were held properly Joined in a Charge for an absence without leave committed together by previous deliberate concert, also Do. 26, Id., 1871, where was approved a Charge in which were joined three soldiers who had conspired to overthrow the guard and escape together from the guard-house, and succeeded. Par. 1016, A. E. prescribes — " Prisoners will not be Joined in the same charge, nor tried on joint cbaf ges, unless for concert of action in the same offence °>Dioii8l, 232-8. « See DlOEBT, 233 ; Slmmpns § 402 ; G. O. 78 of 1872 ; Do. 58, Dept. of the South, 1871 ; Q. C. M. O, 42, Fourth Mil. Dist., 1868. But see also case of Joint absence without leave dted In above note. 440593 O - 42 - 10 146 / MILITAKT LAW AND PRECEDENTS. -"Aether in, a case in wliicli there may properly be a joinder, the accused shall be charged and tried jointly or separately, is a question of discretion, to be de- termined upon considerations of convenience and expediency, and in view of the exigencies of the service, by the commander authorized to order the court. The mere fact that different measures of punisliment will properly require to be awarded to the different parties, on conviction, can constitute no objection to their being jointly prosecuted." Tinder what circumstances and in what manner accused persons jointly charged may procure themselves to be severed on the trial, will be indicted in. a subsequent chapter." III. RULES OF MILITARY LAW IN REGtARD TO THE FRAMING OF THE CHARGE. AS TO THE WOIIDING OP THE CHARGE.' — ^Approved forms. Every military Charge must be pred icated u paP-a-giQlatian-Qf . an exlsting_A rticle 210 oTwaf'oinjtliCT'^tSFute "' ofthe Unitgi States, ^ndJiiejcQgde._in_5Ehicb tSr^cRojTe;" (fts distinguished from the "specification,") shall be framed S^peuds in the first place upon the nature of the enactment. The forms of such charge are indeed of two classes: those laid under Articles, (or other statutes,) designating specific offences; those laid under the two general Articles, or Articles providing for the punishment of offences under a general designation, vie., the 61st and 62d. Th e charge, j ghgr e specific, jn ay consist SimEl2_of^tlie_name.i!f^ the offence, as"^ •nesprtifin£^"JTrij;.iny," " Misbi;bHviniir before the enemy ;" or, referring to ^BiTarticIF^ui^er which, it-ls.broug ht, it m ay bal^ratesec[5sI[^Violation_otthe.--rr- Article of War," " or it may combine the two forms and be phrased as " False Muster, in violation of the 14th Article of War," " Disobedience of Orders in violation of the 21st Article," &c." Where the charge is laid under one of the general Articles, it may be worded — " Con- duct unbecoming an officer and a gentleman," or " Conduct to the prejudice of good order and military discipline ;" or it may be framed in this form with the addition of the words "in violation of the 61st or 62d Article of War;" or — though this mode is here more open to objection than where a specific offence is charged — ^it may be simply expressed as " Violation of the 61st or 62d Article," as the case may be."" Objectionable forms. The above are the only recognized and regular forms of stating the charge ; a charge not following one of such forms, if not fatally defective, must be at least more or less faulty. Thus those loose forms of charge, now much less frequent than formerly, such as " Worthlessness," 211 "Incompetency," "Habitual Drunkenness," "Unreliability," "General Bad Conduct," and the like. Inasmuch as they do not designate any spe- » See p. 368, post. " See Chapter XVI. — " Motion to sever." •" A charge for a neglect to comply with an Army Kegulation is a charge under Art. 62, a statnte. "This form has occasionally been criticized as improper or unsatisfactory, (see G. O 11 of 1862 ; Do. 32, Army of the Potomac, 1862 ; Do. 2, Dept. of the Bast, 1863 ; Di>. 121 Dept. of the Mo., 1863; Do. 21, Dept. of the Columbia, 1885; O'Brien, 233,) but it Is sanctioned by the usage of the service, and is not open to legal objection Digbsst 225 In Ex parte Mason, (105 U. S., 696,) the Supreme Court did not comment upok the charge — " Violation of the 62d Article of -War," as unusual or calling, for remark. " The Charges, as given in the Appendix, are generally in this form. »°» In the practice of the Navy, more extended forms of charges, such as the following have been not unfrequent— " Violation of the Twentieth Clause of the Eighth Article of the Articles for the Government of the Navy ;" " Culpable inefficiency in the performance of duty in violation of the clause of the Article," &c. ; " Violation of par 16 page 76, of the Be&vUations for the Government of the Navy o£ the Unitea States " MIIilTABY LAW AND PRECEDENTS. 147 dflc military offence recognized by the code, while at the same time applying to the accused a depreciatory and unfair description in advance of trial, are highly objectionable, and have been repeatedly disapproved in Orders.' Where indeed the specifications to such charges merely set forth, (as they generally have done,) former instances of arrests or confinements in the guard-house, or former trials and convictions for slight offences,, the pleading is wholly Insufllcient, " such Instances not constituting military offences, but merely the punishments or consequences of such offences." " So is the Charge insufficient, where the specification sets forth an habitual course of conduct, since the law provides for the trial and punishment not of bad habits but of specific acts of offence.' Such Charges Indeed, where the specifications allege actual and dis- tinct military disorders or neglects, may be supported, under a principle here- after t» be noticed, as Charges under the 62d Article. In such cases, however, they should properly be formally laid under that Article^ as " Conduct to the prejudice of good order and miUtary discipline," with a separate spedHcaUon for each act of misconduct.* 212 A further, less faulty, but also improper and unmilltary form, is the use of intensives in connection with the title of the charge; — as '^ Posi- tioe, or Deliberate, disobedience of Orders," " Gross neglect of duty," " Corrupt or Fraudulent conduct, to the prejudice," &c. The expletive in such cases can- not heighten or affect the quality of the offence, and is wholly superfluous." It is indeed commonly but an expression of the animus or estimate of the accuser ; but a miUtary charge is no proper medium for the expression of per- sonal feeling or opinion. If the case be an aggravated one, the matter of ag- gravation, so far as properly descriptive of the alleged offence, may be set forth In the specification,' and so far as material to the question of guilt or of punishment, may be brought out in evidence. Irregnilar but allowable forms under Art. 62. Cases have not been unfre- quent in practice where the charge fails either to designate a specific military offence, or to state in an approved form an offence under Art. 62, but where charge and specification taken together do make out a statement of a crime, iG. O. 11 of 1873; Do. 171, Dept. of the South, 1864; Do. 19, Id., 1867; Do. 9, Dept. of the Gulf, 1866 ; Do. 16, Dept. of the Tenn., 1867 ; Do. 85, Dept. of the Cum- berland, 1867; Do. 21, Dept. of the Mo., 1863; G. C. M. O. 33, Id., 1874; Do. 35, Dept. of the Platte, 1872. The objectionable form — " Chronic Alcoholism, to the prejudice," &c., occurs in a late G. C. M. O. — No. 4, Dept. of the Platte. 1894, but is not remarked upon. ' Digest, 227. And see G. O. 11 of 1873 ; Do. 32, Dept. of the Platte, 1870. To try upon such a charge would often indeed involve a violation of the 102d Article, pro- hibiting a second trial for the same offence. See Digest, 228; G. O. 37, Dept. of Florida, 1866; Do. 69, Dept. of the South, 1870. This class of Charges are frequently subject'to the objection of being double. For example, in G. O. 26, Dept. of the Colum- bia, 1870, are published two cases, in which a specification to a charge of " Habitual Drnnlcenness, to the prejudice," &c., alleges that the accused was drunls, in one of the cases on nine, and in the other on eight specified occasions, " and at various other times " •6." O. 24, Dept. of Cal, 1865; Do. 43, Dept. of the Ohio, 1863; G. C. M. O. 8, Dept. of Texas, 1873. . ^ . ,„„„ ... «A form of specification which was growing into use before 1886, which, with an averment of a particular act of offence, embraced an enumeration of previous convic- tions, (or arrests and confinements,) of the accused for the same "f^f^^ov other mlno; offences, has now been superseded by the Army Reflation par. 1018, (amended by G. O. 64 of 1892,) authorizing the introduction in evidence of previous convictions between finding and sentence. See post. Chapter XIX. ^ ^,_ ., _, ,, . „ •le* G O 11 of 1873, concurring with previous opinions of the Judge Advocate Gen- eral - also G.' O. 21. Dept. of the Mo., 1863 ; G. C. M. O. 33, Id., 1874. 'see the simi'a; case of stigmatizing words added to the charge of "conduct un- becoming an officer and gentleman," in G. C. M. O. 80 of 1878. 148 MHITARY LAW ABD PBECEDBNTS. neglect, or disorder to the prejudice of good order and military discipline. In BDCli cases, to prevent a failure or delay of justice, the pleading as a whole is supported as a l^ally sufficient statement of an offence under the 62d Article. In the same manner, where a spedflc offence is charged by name, but the specification does not state facts proper or sufficient to constitute such offence, but charge and specification together amount to an allegation of an offence included within the general description of Art. 62, legal effect may be given to the Charge as a whole by the court, which may proceed to try and find ac- cordingly. This principle, which forcibly illustrates the liberality vidth which rules of pleading are applied in military cases, rests now upon established usage in our service.' It will be further illustrated in the Chapter on the Finding. 213 THE HEADING NO PABT O'S. THE CHAKGE. The heading or caption by which military charges are commonly prefaced, viz.: — "Charges and specifications preferred against A. B.," adding his rank, office, corps, &c., is no part of the Charge or Charges, and may be omitted altogether. The point is one which would scarcely require to be noticed except for the reason that it has been expressly affirmed by Atty. Gen. Gilpin in a specific case, where an erroneous rank attributed to the accused in the heading was (of course) held not to have affected the validity of the Charge.' In this case, It may be added, the specification referred to the accused as "the said " A. B. This was irregular : no reference should be made to the heading; but the designation in the specification should be entire and complete within itself, and contain a fuU description of the accused independently of the head- ing, even if it but repeats its wording. The heading la even less a part of a Charge than is the " caption " of an indictment.* THE CHAKGE TO BE LAIS TINDEB THE FROFEK ASTICLE. An offence made specifically punishable by a certain Article must of course be formally charged thereunder : to charge it instead as a violation of an Article relating to a different specific offence, or of the general — 62d — Article, will be a serious defect, for which the Charge will properly be struck out on motion of the accused." The effect of a failure to observe this rule is specially illustrated In a case where the Article under which the Charge should have been laid, and that under which It has actually been laid, prescribe different sentences, as where the former requires a particular punishment to be imposed on convic- tion, and the latter leaves the punishment to the discretion of the court ; or vice versa}^ But though no such distinction may exist — the two Articles pre- scribing or premitting the same punishment, or both making the 214 punishment discretionary — the error of the pleading is the same in law. Application of the rule illustrated — Charging san3.e offence under more than one Article. There can be in general but little difficulty in deter- mining under which Article a specific military offence is to be charged, since it will rarely happen that such an offence will be found to be Included within the descriptions of two different articles. One instance of such an inclusion Is that of the offence of stealing property of the United States, which. In time ' See Digest, 226. •3 Opins., 548. •The caption of an indictment 18 no part of the Indictment itself. 2 Oabbett, 278; Wharton, C. P. & P. § 91. It is "merely a preamble to the record." State v. Smith' 2 Harr., 632. 10 DioKST, 225. And see the charging of specific ofFences nnder Art. 62 condemned In 6. O. 5. Northern Dept., 1865 ; Do. 25, Dept. of the Platte, 1871 ; Q. C. M. O. 82 Dent of the Mo., 1871. " See G. O. 18 of 1859 ; Do. 287, of 1863 ; Do. 54, Dept. of the Tenn., 1866. MILITART LAW AND PRECEDENTS. 149 of war, may be charged under Art. 58 as well as under Art. 60 ; otherwise In time of peace when it may, properly, be charged only under the latter article. Another Instance is that of the offence of selling or disposing of public prop- erty, which is made punishable, generally, by the 60th, and, in certain particu- lar instances, by the 16th and 17th, of the Articles. But the difficulty here is but slight, for where the offence clearly falls within one of these instances, it win properly be charged under the particular article ; otherwise under Art 60. Further, where an officer has committed a specific military offence so dis- honorable in its circumstances as also to constitute " conduct unbecoming an officer and a gentleman," he is amenable to trial for the same act under two articles; but here again there Is no difficulty, since the offence may be charged under both — the specific article and the 61st. The principal difficulty in observing the present rule will arise in a case where it is doubtful whether the offence is one of a class contemplated by a certain specific article, and therefore properly chargeable under it, or is not within the terms of such article and chargeable only under Art. 62. Thus there may sometimes be a reasonable question whether the making of a false return should be charged under Art. 8 or Art. 62 ; or a disobedience of an order under Axt. 21 or Art. 62; or a mutinous act under Art. 22 or Art. 62; or a case of drunkenness under Art. 38 or Art. 62; or a breach of arrest under Art. 65 or Art 62. But study and deliberation will commonly solye such ques- tions; and where a serious doubt still remains, the difficulty may be in part avoided by charging the act both as a violation of the specific article and as "conduct to the prejudice of good order and military discipline." Where Indeed the offence is clearly one cognizable under an Article relating to a dis- tinct offence, to charge it also under the general — 62d— Article will be 215 superfluous. Where this is done, however, the court may properly en- tertain both charges for the purposes of the trial, unless indeed the specific article makes the offence a capital one. In that case, as a capital offence cannot be charged under Art. 62, the court vnll properly grant a motion to strike out the charge laid under this article, as not being within its juris- diction." THE SPECHTCATION SHOTTI.D BE APPROPBIATE TO AND STJP- POBT THE CHABGE. To complete a valid Charge, not only should the charge designate the real offence committed, but the spedtlcation should set forth the legal constituents of such offence, as defined by the statute or by the usage and precedents of the service. It should, by its statement, cover every Item of such definition, so as not only to be appropriate to the distinctive charge but inappropriate to any otheiv-except, perhaps, (in a case of an officer,) a charge under Art. 61. ,,.,.. ,j Should state facts. Further the specification, to support the charge, should properly set forth ^ac*s— acts of commission or omission— and not mere in- ferences or conclusions of law. These, as we have already seen, have no proper place either in an Indictment or a Charge. In a military case, there- fore It is in general defective pleading to allege in the specification merely that' the accused did commit the offence indicated in the charge,-as that he did behave himself with disrespect toward his commanding officer, did disobey the order of a superior officer, or did offer violence against such officer, did „„ ^ - t».- an»nn taken in the case of Lieut. Rogers, where to a Charge for ™ k!,^ T„f orders und^r the 9th (now 2l8t) Article, and clearly properly so laid. Disobedience «* ^^^^f ^/.^^e act laid under the 99th (now 62) Artlde. The Tttern^^g^bS t^h^y the accused, was str.^ken out hy ^e court, and the pro- ceedliigs were approved by the Secretary of War. G. O. 13 of 1848. 150 MILITAEY LAW AND PRECEDENTS. join In- a mutiny, did misbehave before the enemy, did commit waste or spoil of private property, &c.; — ^the proper form being to set forth the specific facts and circumstances relied upon as constituting the particular offence 216 charged." In view, however, of the simpUcIty and directness of the pro- visions of the military code, a strict observance of this rule is not called for in some instances. Thus it is generally sufficient to allege in a specification to a diarge under Art. 47 that the accused did desert; and so under Art. 38, that he was found drunk, &c.; without specifying In what the desertion or drunkenness consisted or by what acts it was indicated. But, except in such familiar cases, to describe th6 offence in the specification merely in the words by which it is designated In the charge, or in the Article, Is bad pleading; and, where the description is thus bald, the court, upon the motion of the accused, may properly require the specification to be made more definite or be stricken out. Should describe the complete ofEence. Lastly, the specification, in its statement of facts, should set forth such facts as will be sufficient, if proved, to sustain, not only the specific charge In contradistinction to any other, but also such charge in its entirety. A specification stating facts which will es- tablish only a portion of the offence charged, or a secondary or incidental offence, will be as insufficient in law as if it stated facts representing an offence of a totally" different nature." A familiar. instance of a, specification not sus- taining in its entirety the charge, would be one in which, the charge being de- sertion, the specification alleged an absence without leave only ; or one where, imder a charge of "robbery" the specification described a larceny only, the averment as to the use of force, &c., being omitted. The fact that the court may find guilty of a lesser offence wUl not excuse the pleader from the ob- servance of this rule. Each of several specifications to be complete and independent. It should be noticed that where there are several specifications, the present rule is to be applied to the framing of each specification precisely as if it were the only specification in the case. While one good specification will sustain the charge, any number of defective specifications vf 111 fail to do so. Each specification, therefore, should be entire and sufficient per se. Independently of every other specification, and without borrowing froin, or referring to, any other, each separate specification should contain all the allegations, substantial and 217 formal, which are necessary and proper both to complete Itself and to support the charge as laid." IV. THE PREFERRING OF CHARGES. PBELIJffiINAB.T INVESTIGATION — CHABQES TO BE WELL- rOTTNDED. Only such charges as, upon sufficient investigation, are ascer- tained to be supported by the facts — are found to be sustained by at least prima facie evidence — should be preferred for trial. The preferring of charges, wlth- « Digest, 225 ; G. 0. 37, Army of the Potomac, 1861. See case of Pvt. Macnamara, (Simmons § 413,) where a Charge which merely named the offence without specifying the facts in which it consisted, was held insufficient as being so defective that a sentence conid not be predicated thereon. " Compare instance, (In a naval case,) of a speclflcation held not to have supported the charge, in 9 Opins,, At. Oen., 223. » See G. O. 12, 33, Dept. of the Mo., 1862 ; Do. 15, Id., 1863. In the first of these Orders, the fact that the pleader had inserted a general statement of time and place at the end of all the speclflcatlons, aa applicable to all alike, Instead of a separate statement at the end of each, was condemned by the reviewing authority as a marked irregularity. MILITARY LAW AND PRECEDENTS. 151 out a proper investigation of tlie facts in the first instance— a neglect of duty which may entail, besides a needless waste of time spent in the trial, the arrest and confinement of an innocent person— has been repeatedly severely reflected upon in General Orders." In the British military law, such investigation is en- Joined by express statute." A charge indeed should not be preferred at all where the case is susceptible of being properly disposed of, without trial, by the com- manding officer. "" CHABGES NOT TO BE FRIVOLOTIS OB MALICIOUS. All charges should be substantial and made in good faith. Where, as the result of imperfect 218 investigation or otherwise, frivolous charges are preferred, or where the charges are actuated by a hostile amnma and are not in themselves well- founded, they are not a proper basis for a trial by court-martial. When such charges have been tried, they have not unfrequently exposed those preferring them to grave censure and in some cases to severe punishment." TO BE PIIEEEBB.ED AGAINST THE RESPONSIBLE PARTY. The charge in every case should be preferred only against the person responsible for the act. Where there is any doubt as to which of several persons is the one properly chargeable with the offence committed, they should not all be charged, if by a more complete investigation the guilty party can be distinguished." Further, where superiors and Inferiors have offended togther, or superiors have sanctioned offences of subordinates, — whatever proceedings it may be 219 thought proper to take against the latter, charges should certainly be pre- " See G. C. M. O. 70, 1875 ; G. O. 57, Dept. of the Tenn., 1864 ; Do. 50, 53, Dept. of the East, 1865 ; Do. 41, Id., 1868 ; Do. 10, 13, 17, Dept. of the Lakes, 1867 ; Do. 33, 38, Dept. of the Platte, 1868 ; Do. 33, Dept. of La., 1868 ; Do. 24, Fifth Mil. Dist., 1868 ; Do. 16, 153, Id., 1869 ; Do. 26, Dept. of the Mo., 1870 ; Do. 3, Id., 1872 ; Circ, Id., Nov. 15, 1871 ; G. O. 7, Dept. of the Gulf., 1872 ; Do. 11, Dept. of the Columbia, 1872 ; Do. 29, 71 Dept. of Dakota, 1873. H ■• The charge made against every person taken Into military custody shall, without unnecessary delay, be Investigated by the proper military authority, and, as soon as may be, either proceedings shall he taken for punishing the offence, or such persons shall he discharged from custody." Army Act I 45, (5.) A court-martial should not investigate a vague or defective charge. Simmons § 457. >* Commanding officers, in forwarding charges, may well be, and have sometimes been, required in Orders to certify that they have fully investigated the case, and believe that the charge can be fully established. See the excellent G. O. 73 of 1892 ; also G. C. M. O. 7, Div. of Atlantic, 1887 ; Circ. No. 10, Dept. of Arizona, 1892. ^ See a recent case in G. C. M. O. 71 of 1879. In sundry cases reported by James, (see pp. 81-4, 241, 266, 340, 372, 338-9, 583, 6047-5, 792,) the preferring of frivolous or baseless charges Is severely animadverted upon by the reviewing authority, and in several instances the officers who preferred the same are summarily dismissed the service. In G. O. 86, Dept of the Mo., 1867, Gen. Hancock observes : — " To prefer accusations which cannot be maintained is highly injurious to the service and reflects discredit upon those who prefer them ; and if upon trial the charges are found to be groundless, the officer preferring them should be held accountable and be tried himself for preferring malicious charges." Frivolous charges relating to personal matters are condenmed by Gen. Crook, in G. O. 2, Dept of the Columbia, 1870, as follows : " It is to be regretted that the Department Com- mander should be called upon to convene a court-martial to settle differences of opinion and peccadilloes between officers, which, it seems to him, should be settled among them- selvts and not only without trouble, but without their being published to the world." And s^ remarks of the same Commander, in G. C. M. O. 3, Dept. of Arizona, 1884, as to the Impropriety of making personal difficulties between officers the subject of charges. In G O Hdqrs Totoway, Oct. 30, 1780, General Washington comments upon the Pharees'in the case of Col. Thomas Proctor, of the Artillery, as "vexatious, groundless, and illiberal " He adds—" It is with pain that he has seen several instances, for some time past, in which personal pique has given birth to prosecutions as unjust as they were *"»1f£t\"rc™rubllBhed in G. C. M. O. 120, Dept. of the East, 1870, where three soldiers were separately charged, tried and sentenced, for the same act as committed by ^ch the pfoceemngs were all disapproved because it did not appear from the evidence which one was the actual offender and responsible party. 152 MILITARY LAW AND PKECEDENTS. ferred against the former, as primarily responsible and deserving punish- ment." So, where duties have been improperly performed by soldiers, by reason of their having been assigned to the same when dnink or otherwise unfitted to perform them, by superiors cognizant of their condition, it is the latter who, as primarily responsible for the consequences, should become subject to charges rather than the former." AT. T. EXISTING GBOTTNDS OF ACCtTSATION TO BE PRESENTED TOGETHEB — ^MULTIPLICATION AND ACCTJMTIXATION OF CHABGES. While charges should be prepared and preferred with as little delay, after they have been investigated and determined to be well-founded, as may be reasonably practicable," care should be taken that all the charges and specifications to which the party may be subject be preferred together. Unlike the ordinary criminal procedure, where but one indictment, setting forth (in one or more counts) a single offence or connected criminal transaction,"* is in general brought to trial at one time, the military usage and procedure permit of an indefinite number of ofCences being charged and adjudicated together in one and the same proceeding." And, with a view to the summary and final action so important in military cases, — wherever an officer or soldier has been apparently guilty of several or many offences, whether of a similar character or distinct in their nature, charges and specifications covering them all, should, if practicable, be preferred together and together brought to trial; separate sets of charges, where they exist, being consolidated." Where all the charges to which 220 a party is amenable are known or can readily be ascertained, and the testimony to establish them is available, to bring one or a portion to trial separately, and the other or remainder to a further trial later, is an irregular proceeding." What Is known as the " accumulation " of Charges, — which is the allowing of separate slight offences to pass apparently unnoticed, until a sufficient number have been committed to make up together, when stated in separate specifications, a show of grave misconduct in the aggregate, — ^has been universally condemned, and the preferring of charges thu^ reserved has been commonly attributed to a hostile animus, to the serious disadvantage of the prosecution upon the trial." " Compare I>iqest, 379 8 3. *" See G. O. 2, Dept. of the Platte, 1873 ; G. C. M. O. 46, Dept. of Texas, 1880. •"Charges should not In general be preferred after the offence has been once passed over, and the accused has been released from arrest and restored to duty, and his mis- condDct has not been renewed. Surgeon JolUfe's Case, James, 516, Bombay H., 3. "See Sec. 1024, Eev. Sts. » In an old case, (1819,) — that of Col. Wm. King, 4th Infy., there were thirti/-one specifications. Specifications setting forth distinct acts of offence were especially numer- ous in cases during the late war ; amounting In one Instance, published in 6. O. 43, War Dept., 1863, to sixtv-one in number. * See Digest, 227. " Such a proceeding is condemned In G. C. M. O. 37, Dept. of the Platte, 1872. » "Delaying to bring forward charges " and " permitting them to He dormant. Justifies the impression that the prosecutor is not actuated by public motives alone in their Insti- tution." Simmons § 382. " It is highly Improper to hold charges in reserve against an office- or soldier In order that they may accumulate so as to form collectively a crime of sufficient magnitude to Justify a prosecution." Macomb, 26. And see Tytler 162 163 • Dc Hart, 99 ; Harwood, 46 ; Ives, 88 ; 1 Opins. At. Gen., 295 ; G. C. M. O. 71 of 'l879 • G. O. 12. D^t. of the Mo., 1862 ; Do. 53,- Dept. of Va. & No. Ca., 1863 ; Do. 41, Dept of Washington, 1868; Do. 10, Dept. of the Platte, 1871 ; Do. 30, Dept of the South 1873- G. C. M. O. 2, Dept of Texas, 1882 ; Do. 45, Dlv. Pacific & Dept Cal., 1882 ; Diobst 226-7. In two cases reported by James, (pp. 203, 461,) the accuser, an Inferior In rank' who had accumulated charges against his superior, the accused, was dismissed the service^ In the Order publishing the proceedings. The rule of course does not apply -where the offences, though long since committed, have recently all come at the same time to the knowledge of the officer preferring the charges. G. O. 33, Dept. of Arizona, 1871 MILITARY LAW AND PKECEDBNTS. 153 Where Indeed the dereliction of the party consists in the habitual nature of his misconduct — as that he Is habitually addicted to becoming drunk— it may be proper to delay preferring the charge till instances sufficient to indicate the fact of habit have transpired ; but such delay should not be unreasonably prolonged." BY WHOM CHARGES ABE TO BE FBEFEBBED."" Preferring charges. In a general sense, consists In being the author of, or person responsible for, specific accusations presented against an officer or soldier. The "ac- 221 cuser," referred to in Art. 72, is, in this sense, the preferrer of the charges; and so Is the "prosecutor" where he has either originated or adopted the accusation. In law, however, and as the term Is employed in the present connection, the preferring of charges consists In the formal sub- scription and authentication of such charges for official purposes. A military charge, by whomever initiated, must — ^to serve as a proper basis for official action and trial — ^be formally preferred by a commissioned officer of the army. Such a charge may originate either with the formal preferrer himself, or with any other individual, whether or not in the military or public service. A civilian If first advised or personally cognizant of a serious offence committed by an officer or soldier, may, as properly as any military person, bring the same to the Imowledge of the military authorities, and Indeed is but performing a public duty In so doing." So, a charge may be advanced In the first Instance by an enlisted man. But although a civilian or a soldier may present the charge In virritlng and duly framed, the formal preferment of the same — ^the legal act — must be by and under the signature of an officer." A preferred charge is an official paper, and must be officially subscribed. Any officer, of whatever rank, and whether or not exercising command, may legally prefer a charge, and at any time. There is no military status which Involves a legal disqualification to prefer a charge ; " an officer, though himself under charges, In arrest, or under sentence, may not only originate but formally prefer charges with the same legaZ effect as any other officer. But while any officer may legally thus act, the preferring of charges by certain officers 222 is not favored. Thus charges by a junior against a senior In rank, un- less ordered to be preferred, or sanctioned, by a common superior, are not encouraged in practice," though peculiar circumstances will sometimes * See Digest 226. In such case each instance should of course form the subject of a separate specification. "Compare, under this head, Diqbst, 233-234. "That the validity of a charge Is not afeected by the fact that It originated with a civilian, see G. 0. 33, Dept of Arizona, 1871; also Gen. Swalm's Case, G. C. M. O. 19 of 1885. , , , , „ \. x^ "The peculiar practice of the preferring of charges against naval officers by the Secretary of the Navy has no counterpart In the military service. As to the objections to this practice, and its sanction by usage, see Trials of Com. Wilkes, pp. 2-3, and of Com. T. A. C. Jones, p. 367. . "In January 1778, Lieut Gen. Burgoyne, while a prisoner of war at Cambridge, Mass preferred a charge against Col. David Henley, of the continental army, corn- ending at Sft place, which was entertained by Gen. Heath (comdg. Eastern Depart- Tnt ) Ind a court-martial ordered by him thereon, at which Gen. Burgoyne acted as ^™Tcr;ha^ref^feTei:^"« discouraged in the British ser^ce^ where. In repeal casL'junlors who have preferred and prosecuted charges against theU- seniors i:r^T;eie.y rebuked, and uot rarely, if ^r^i ,^l Z' •l^'t^'^'To^'oi 266, 381. 372, 468. 58»-40. ff^;//^^"?!^^^, the Coimander-ln-chlef : "A regard due rt^^^n-^tirruin^rrrrvera^ch a severe responsibiUty to subordl- nate officers who become the accusers of their superiors. 154 MILITARY LAW AND PKECEDENTS. justify them." In general, charges will most appropriately be preferred either by the commanding officer of the accused, by a superior in ranli, or by the judge advocate of the court, — the latter acting officially and by the direc- tion express or implied of the convening authority. In any case an officer may be ordered by his proper commander, (or by the President, through the Secretary of War or a military representative.) to prefer charges against another officer or an enlisted man." ATTTHENTICATIOIT. A charge is officially authenticated and preferred by the formal subscription of the same by the preferring officer with his name, rank, regiment, corps, or office." It is not essential, to give a court-martial jurisdiction of the offence or the offender, that the charges should be thus authenticated, or signed at all, provided they evidently emanate from an author- ized source. Such court, however, might properly defer proceeding to trial, as might also the accused properly object to be arraigned and to plead, where the charges had been omitted to be subscribed In the usual manner. TO WHOSI TO BE PBEPEKBED. Charges are to be preferred to the commander authorized to order, or who would, under the circumstances, 223 most appropriately order, the court. Such commander, (where trial by a general court-martial Is proposed,)- will be the Dividon, Department, or Army commander, (or in time of war a commander empowered by "Art. 73,) the Superintendent of the Military Academy, or the President. By preferring to Is meant officially addressing and forwarding to the commander, through the proper military channels, (or directly where permissible,) the formal charges; the same being usually accompanied with a request or recommendation, ex- pressed In the letter of transmittal, that such charges, if approved, be referred to a court-martial for trial. Charges against enUsted men should now be ac- companied by the statement, in regard to enlistments, discharges, &c., required by par. 1015, and by the evidence of previous convictions required by par. 1018, A. R." In the rare cases in which a commander authorized to order a general court- martial himself prefers directly the charges, he will properly prefer them to the court through the judge advocate ; unless he be the " accuser or prosecutor " of the accused in the sense of Arts. 72 and 73, when he will prefer them to the President or the " next higher commander," as the case may be. V. THE REFERRING OF CHARGES FOR TRIAL. BT WHOM AND HOW REFERRED. Regularly and properly charges can be referred to a general court-martial for trial only by the commander by whom the court has been convened, (or his successor In command,) or by his authority. The referring of charges to the court by the " highest authority on the spot " — as the post commander — ^has been sanctioned in some Orders, with special view •^In Col. T. Chambers' case, (1826,) the charges, for dmnkeniiess, &c., on which he was dismissed, were preferred by a captain of the regiment. "This point was in substance held by MaJ. Gen. Brown, as Gen. Comdg. tlie Army In G. O. 3 of 1826. •" Signing charges as " by order " of a superior Is not approved or customary in our practice, though the signing may have been ordered in fact. Otherwise in the British service. Simmons § "It has been observed tliat, in forwarding diarges, to a department commander, the officer forwarding is not entitled to prejudice the accused by adding a statement 'tb«t his character in the service is " bad," or to that effect. Q. C. M. O. 41 Dept of the Platte, 1893. MILITARY LAW AND PKECEDENTS. 155 to the trial of enlisted men."" But unless expressly authorized by the depart- ment, &c., commander,— as It sometimes has been where the court was as- sembled at a post or station remote from his headquarters, — such a reference by an inferior commander is irregular and improper." 224 The reference, by the department, &c., commander, of the charges to the court is not made till the same have been approved by him, and such approval is not given till the charges have been examined by the commander, with the assistance generally of the judge advocate or other proper staff officer attached to the command, and if necessary revised and corrected. Upon their final approval, the charges are, regularly, transmitted from the headquarters to the judge advocate or president of the court— usually and pref- erably to the former— for prosecution and trial. Thus transmitted, they are not subject to the revision or criticism of the court or its members." VL WITHDRAWAL OR AMENDMENT OF CHARGES AFTER REFERENCE FOR TRIAL. The officer preferring charges is not entitled to have them brought to trial, nor has an accused a vested right in having charges against him adjudicated. The convening authority, representing the United States, may always withdraw charges before trial ; " may cause or authorize a nolle prosequi to be entered as to a charge or specification after the charges have been placed before the court and even after arraignment, and may cause or authorize charges or specifications to be amended. But — so far as concerns the court and the parties — charges duly referred for trial are, in law, ordered to be tried as they stand. There- after to assume to amend them without proper authority is a military offence. As wiU appear in Chapter XVI, the court may strike out a charge or specifica- tion on motion of the accused if sufficient cause be exhibited; but, self-moved (or in the absence of an issue) and of its own original capacity, it has no power whatever to amend, modify, discard, or withdraw, or direct to be stricken 225 out, any part of the charges or specifications officially committed to it for trial," except, indeed, in so far as to correct a mere obvious error of •In an Order of Gen. Scott, (G. O. 67, Hdqrs. of Army, May 20, 1857,) referred to and followed In a few subsequent Dept. G. O., the reference by tbe post commander iB held authorized except where he is himself a member of the court. This however is not a correct statement of the law as now held and observed. * Digest, 234; G. O. 67, Dept. of Ark., 1864; Do. 47, Dept. of the East, 1868; Do. 88, Dept. of Dakota, 1869; Do. 2, Dept. of the Platte, 1873; Do. 8, Dept. of Texas, 1874. The irregularity would be aggravated where the post commander was himself a member of the court. See G. O. 68, Dept. of Dakota, 1875, where he was the presi- dent of the court, and it was held that his action had rendered him liable to challenge. « G. C. M. O. 16, Dept. of Texas, 1893. And see Do. 210, Dept. of the East, 1884. « Street v. U. S. 133 TJ. S., 305. *» G. C. M. O. 17, Dept. of the Columbia, 1886 ; Do. 87, Div. of the Atlantic, 1887 ; Do. 38, Dept of Cal 1890. In the case in the last Order, the action of the court. In directing the judge advocate to insert words in a specification which " magnified essentially the charge against the accused," was properly disapproved. In a further instance in Do. 7, Dept of the Mo., 1891, the action of the court (in two cases) In changing, upon the reaue'st of counsel' for the accused, the word " Burglary " to " Larceny " in the 2d Charge, was properly disapproved. The Department Commander, Gen. Merritt, adds— "After charges have been formally referred to a court for trial, the court has no authority to change or amend them upon any material point without the permission of the convening officer In these cases the best and simplest plan would have been for the court to have nrocee'ded to try the accused on the original charges and then have made the findings S^ord with the evidence." In a case, in G. C. M. O. 210, Dept. of the East, 1884, where an amended form of charge had been ordered for trial by the Department Commander, the court directed that the original form of the charge be substituted for trial as being. 156 MILITARY LAW AIID PRECEDENTS. form.** How far the jndge advocate may be empowered to amend, iSte., will be considered in Chapter XIII. It need only be said here that he can have no authority for this purpose virtute officii, but must be thereto authorized — if authorized at all — ^by the superior by whom he has been detailed. It may be added that where a command is furnished with a competent officer of the Judge Advocate^ General's Department, or staff officer acting as such, all charges will have been fully revised before being referred for trial. There will thus rarely be occasion for any considerable amendments at a later stage. VII. ADDITIONAL CHARGES. This is a technical term in military law, meaning new Charges which are ad- vanced after the preferment and service of the particular Charge or set of Charges for the trial of which the court has been ordered, or upon which the accused was originally intended to be arraigned." Such Charges may re- 226 late to past transactions which were not known by or brought to the atten- tion of the officer framing or ordering the original Charges, at the time these were preferred ; or they may, as is more frequent, arise from acts of the accused subsequent to his arrest on the original Charges. Thus if, after such arrest, he commits a " breach of arrest," an " additional " charge will properly be added in the case, and served upon him. Charges of this class do not require a separate trial, but may and properly should be tried by the same court which tries the original Charges, and at the same time. They must, however, be brought before the court prior to its being sworn. After the court has been duly sworn to try and determine " the matter now before it," further or " additional " Charges (or specifications) cannot legally be entertained by it at that trial, but must await a separate investigation,*" VIII. THE SERVICE OF CHARGES. FOBJIl Aino UANNEB OF SEB.VICE. The service of Charges consists in delivering personally to the accused a true copy of the charges and specifications upon which It is proposed to bring him to- trial. There is properly -in military law no other service of charges than a personal service, since the United States is supposed to have the accused always in custody or within its control." The service is usually made by the judge advocate of the court, the adjutant of the command,*' or other officer or non-commissioned officer detailed for the purpose.*" In a case of an accused soldier who is illiterate or imperfectly acquainted with the English language, the charges and specifications should be read and their contents explained to him by the officer making the service." In Ita opinion, preferable. " TMb action on the part of the court," observes Gen. Han- cock, " was an Illegal and unwarrantable assumption of authority which cannot be sanc- tioned." And see the comment of Gen. Wheaton upon a similar case, in G. C. M. O 16 Dept of Texas, 1893. ' * ' * " See 6. C. M. O. 17, Dept. of the Colorado, 1894. « In a few early cases, " supplementary " cliargeB, so called, were added after " addi- tional'" charges. See Instance In G. O. 72 of 1826. « See the law on this point as stated in Digest, 97, 227 ; also Simmons §415 • Kennedy 81-2 ; De Hart, 102 ; G. C. M. O. 39 of 1867 ; G. a 13, Northern Dept., 1864. ' "It may be noted that the entering of a written charge against the prisoner by the officer mafcing the arrest, in the manner indicated In Art. 67, cannot in general answer as a personal service of the formal charges and specifications, " Simmons S 416. » The service may be made by a prlvftte soldier or even by a civilian, but this is not usual. » Simmons § 416. And see Bules of Procedure % 14 (B.) MILITARY LAW A^D PRECEDENTS. 157 22T In making service It is desirable, in a case of importance, that the offi- cer, &c., should note on the original draft the fact, date and place of the delivery of the copy. It Is also proper that he should compare vsrith the accnsed the original and copy furnished, so that both parties may be assured that a true copy has been served. list of witnesses. Though the accused has no right to demand it," it Is yet proper and desirable that there should be appended to the Charges as served upon hJm a list of the witnesses by whom it is proposed to support them. The accnsed will thus be the better advised of the source and basis of the complaint, and so better enabled to prepare his defence and to determine what witnesses he wiU require to rebut or impeach those of the Government The list, how- ever, is not part of the Charge and is frequently omitted. Though added and served therewith, it will not oblige the prosecution to introduce the witnesses named or any of them nor estop it from introdudng such other vrttnesses as may be deemed material." TIME OP SERVICE. The law indicates no particular time witliin which charges should be served upon enlisted men, but, in Oie case of officers, Art 71 of the code in effect prescribes that, " except at remote military posts or sta- tions,"" a copy of the charges shall be served "vrithin eight days after the arrest" At "remote" posts, &c., the time is left indefinite; but In all cases, whether of officers or soldiers, the interests of justice and of military discipline unite In requiring that charges should in general be served either simul- taneously with the arrest or as soon after arrest as is reasonably practtcable." EFFECT OF DEFECTIVE SERVICE OR NOIT-SERVICE. The service of charges, however, is not an essential proceeding. So, the fact that there is a material variance between the charges upon which the accused is arraigned and the copy which was previously served upon him cannot avail him as a 228 legal objection in bar of trial, or afEeet the validity of the judgment of the court" Nor can even the fact that there has been no service at all have such effect Where, however, such a variance is apparent, or the accused has been served at a time unreasonably close upon the day or hour of trial, or has been neglected to be served at all, the court in view of the 93d Article of war, will ordinarily justly grant him, if be asks it such a reasonable con- tinuance as will enable him sufficiently to examine the actual charges and pr^are his defence or plea to the same." SERVICE OF AMENDMENTS, &c. If. after the service of the original charges, and before arraignment, such charges have been materially amended, there should properly be a re-service upon the accused, as soon as practicable, of the amended charges," and service should be similarly made of " additional " charges, if any are preferred." «• Hough, 706 ; Simmons § 423 ; G. O. 52, Dept. of the Platte, 1865. ■i Simmons S 426 ; Digest, 235, 751. "See this term defined in Cliapter IX, wbere also the provisions of Art. 71 have been more appropriately considered. H See Simmons ! 416, 417. » Simmons S 418 ; Griffiths, 61-2. Note in this connection the mllng of the U. S. Sapieme Court in the recent case of Johnson v. Sayre, 158 U. S., 109, to the effect that the provision of Art 43, of the naval code, that the accused shall be furnished with a true copy of the charges and specifications " at the time he Is put under arrest," has reference to the time of the arrest, for trial by court-martial and not to that of a previous arrest as an arrest to await the action of a court of Inquiry. M Simmons S 418 ; Griffiths, 62 ; G. O. 52, Dept of the Platte, 1866. " See Tytler, 218. "HouBb, (Practice,) 245.. CHAPTER XI. THE rOBMAL OEDEBUTG, MEETING, Ac, OF THE COTTB-T. 229 The subject of this Chapter will be considered under the following heads :— I. The ConTcnlng Order, and Orders Supplemental thereto ; II. The Meeting and Opening of the Court; IXI. PreUminary Business; IV. Intro- duction of Accused ; Y. Admission and Status of Counsel ; VI. The Clerk and other Assistants or Attendants. I. THE CONVENING ORDER, &c. ITS EPFECT IN OENEBAIi. As already shown, a general court-martial is constituted by a military order, issued either by the Commander-in-chief or one of the military commanders specifically authorized for the pun)ose by statute. In its usual form this Order is a direction to certain officers named to assemble at a certain time and place and form a court for the trial of a pei^on or persons specifically or in general terms indicated, and to a further officer to act as judge advocate of such court.* A copy of the Order, written or printed, is properly, and in practlii^ delivered or transmitted to each of the offices designated. Its particulars Illustrate in brief the law heretofore stated at length In regard to the constitution and composition of general courts. PABTICULABS — 1. THE CAPTION. This, where the court is convened by a military officer, should indicate the headquarters of the command of the officer who makes the order. As — "Headquarters , of the Army;" "Head- quarters, Army of the Potomac ; " " Headquarters, Department of Cali- 230 fornia ; " " Headquarters, First Division, First Army Corps;" &c., — with the place at which the headquarters are situated, and the date. If issued by the Commander-in-chief, the Order may be headed — "War Depart- ment," or "Headquarters of the Army, Washington, D. C," according as it Is issued through the one or the other. If the order proceeds from the Superin- tendent of the Military Academy, the heading will be " U. S. Military Academy, West Point, N. Y." The caption should not only identify the command, but Indicate that it is one of which the commander is authorized to convene a geperal court-martial: otherwise it Is invalid upon its face.* That the Order is dated on a Sunday afEects in no manner its validity.' 2. PLACE AND TIME OF MEETING. The Order then proceeds to announce and direct that a General Court-Martlal will assemble, jor convene, or is appointed to meet, at a certain place, naming a particular post, station, &c.,* 1 See pars. 1002, 1003, 1007, A. R. 'See Digest, 548. •Digest, 548. ♦ In G. Field Q. 4, Dept. of Dakota, 1867, the court Ig ordered to meet on a transport steamer. In G. O. 76 of 1869, It was directed that — " Military courts will be assembled at posts or stations where the aggregate expenses of trial or examination will be least." Par. 1003 of the present Army Regnlationa declares — "The place of holding a court is designated by the authority appointing it. Military conrts will be assembled at posts or stations where trial or examination will be attended with the least expense." 168 MILITABT lAW AND PBECEDENTS. 159 on a certain specified day, " or," as It Is usually added, " as soon thereafter as practicable." The time or place, or both, may be changed by a subsequent Order from the same source.' It would not be proper for the court, of its own authority, to depart from either ; though if it did so the validity of the proceed- ings would not necessarily be affected : a general approval of the same by the commander would ratify the irregular action.' 3. THE NA3IE OE THE FABTT OB FABTIES TO BE TRIED. The Order then subjoins : " for the trial of " — naming a certain officer or 231 enlisted man — '• and such other persons (or prisoners) as may be brought before It ;" or, more generally, since it is not necessary to designate any particular person or persons,' — " for the trial of such persons as may be brought before it." Where a particular i)erson is named, it is usually an officer, &c., whose trial was the original or special occasion for convening the court. The party named, if any, should of course appear to be a person within the military jurisdiction. If the Order specifies that the court is convened for the trial of a certain class of military persons only, its effect is to preclude the trial of per- sons not within that class. Thus a court would not be authorized to try an enlisted man under an Order directing it to assemble for the trial of " officers." ' 4. THE DETAIL OP THE IffElVIBEBS. The Order -then proceeds to name the officers who are to compose the court, observing the principles of law here- tofore laid down in regard to the class, rank, number, &c. The number must of course be at least five and not more than thirteen. The detail are arranged In order of rank, but the senior and first in the list need not be, and is not in our practice, designated as " President." * The precedence given to certain offi- cers as senior to others in the Order is conclusive on the court till changed, as it may be, by a supplemental Order ; but an error In the statement of the rank, or relative position of any member, or of his regiment, corps, or office, will not affect the validity of the Order." The detail In the original (or a supplemental) Order is the authority for the members named to appear, be sworn and act on the court," and consequently to absent themselves (if necessary) from their posts or stations, and to receive transportation or mileage If the same be otherwise allowable and duly certified." 5. THE DESIGNATION OF THE JTTDGE ADVOCATE. This usu- 232 ally follows the detail of the members, but the Order is not defective If it fail to name an officer as judge advocate : one may be appointed by a sup- plemental Order. Sometimes Indeed the original Order expressly states that a judge advocate will be designated in a subsequent Order. 6. CLAUSE ACCOTTNTING EOB THE NUMBER, &c., OF MEMBERS. Where the detail is less than thirteen it is customary to add In the Order, foUow- ing the language of the 75th Article, a clause to the efEect that—" No greater number can be detailed without manifest injury to the service." The early 6 See De Hart, 88. ^^ ,. , . • In G O 172 and 185, Dept. of the Ohio, 1863, the proceedings were disapproved be- cause the court in one instance, met and acted at a place, and, in another, on a date. other than as indicated and directed In the convening Order. ' See G O 52, Div. Pacific, 1865. 'Digest, 548, and note; G. O. 106, Army of the Potomac, 1862. » See pars. 1002, 1004, A. E. •» See G. C. M. 0. 100, Navy Dept., 1893. ,. . ^ , ^ "1? officer may be detailed upon a court-martial by telegraph. A telegram, how- An °°"=^t. ™, t "thf. Pffect that he will be, or is to be, detailed by a formal order, :mVo°t r-°.fa"trorlze\ttti*ng as'a membe'r. See G. C. M. O. 42, Dept. of the Mo.. 1874. " As to the certificate, see post. 160 MHJTABY LAW AND PEECEDENTS. rulings of the U. S. Supreme Court and the Supreme Court of New Tork, In which tills Article was construed, have been heretofore referred to," and it has been seen that such clause is quite unnecessary, the determination of the Com- mander that thirteen cannot be detailed without manifest injury, &&, being sofflclently signified by the mere fact of his detailing a less number.'' The wording of the clause sometimes is — " No other members, or officers," && I this form being employed for the double purpose of declaring, not only' that no other, i. e. greater, number can be detailed without manifest injury, &c., but also that no officers of other, t. e. higher, rank can be selected; the object of the clause in its latter purport being to account for the placing upon the detail of an officer or officers junior to the accused, which Art. 79 prescribes shall not be done " where It can be avoided." But It is as unnecessary to account in tenus in the Order for making the case an exception to the rule of Art. 79, as It Is to explain In terms the not detailing of the maximum number. This form of the clause in question is therefore as superfluous as that first mentioned."' The direction sometimes added here, to the effect that, should some of the members fall to arrive, the court may proceed to business provided the number present is not reduced below the legal minimum, Is also wholly unnecessary; the rule of law (Art. 73) empowering five to constitute a court under' all circum- stances being now perfectly well understood. 233 7. DISECTION AS TO HOTTSS OF SESSION. Where, In the opinion of the convening authority, the exigencies of the SMvice, or other circum- stances, require that an exception be made to the general rule, in regard .to the proper hours of session, prescribed in Art. 94," it Is added in the Order that — " The court will sit without regard to hours." " This direction Is not nnfre- qnently given in a supplemental Order. a THE CERTIFICATE AS TO TSAVEL. The Act of June 30, 1882, c. 254, in appropriating, among other things, for the jnileage of officers travelling "on duty under orders," added — ^"the necessity for such travel to be certified by the officer issuing such order." In cases, therefore, where the convening Order details officers stationed at posts, &c., other than the post or station at which the court is to be held, the following certificate is now subjoined : — " The travel Involved in the execution of this Order is necessary for the public eery- ice," " or in terms to this effect. 9. SUBSCBIPTION OF THE OSDEA. The original order, (which may be written or printed,) should appear subscribed, in writing or in print, by the President or Secretary of War ; " or by the miUtary Commander, with his irank and a reference to his command as indicated in the caption. The subscription should be consistent with the caption. Copies of the Order are commonly further authenticated by the signature of the Adjutant General, Assistant Ad- jutant General, or other staff officer. StrPPLEMBNTAL OBDEBS. Prior to the organization of the court the Convening Order may be amended, modified, or supplemented by any number of subsequent Orders from the same source,— by which a member or the judge advocat? may be relieved, new members added or substituted, the place or time "See Chapter VII. ~ ' ' ' " See DioBST, 8S. "DioasT, 89. " See tbis Article as separately considered in Chapter XXV. " G. O. 9 of 1892 dedares that when authority Is thus given, " the order mnst state that It l8 necessary for the sake of Immediate example." " See O. O. 86, 181. of 1882. "The subscription hy the Secretary la presumably of course by the authority of the President and bis act In taw. See G. O. 85 of 1850 ; also Chapter III— toDiBS. MILITARY liAW AND PEECEDENTS. 161 of meeting changed, the hours of session extended, &c. In tlie record. 234 of trial these Orders will properly follow the original Order, bo that they may readily be compared therewith, and the authority of the court and of each member, and of the judge advocate, to act- as they are shown to act in the iN:oGeedings, may clearly appear. Supplemental Orders may also be issued at any stage penMng the trial: they are comparatively rare, however, after the arraignment. II. THE MEETING AND OPENING OF THE COURT. ASBIVAL, COMIKO TO 0BD:EB, AND SEATING OF ICEMBEBS. Pur- suant to the Convening Ofder, ^and the supplemental Orders, if any,) the officers named in the detail for the court assemble in full uniform" at the time and place named, in such building or room as may have been set apart for the purpose by the post, &c., commander, or provided by the quartermaster's department. When five or more have arrived, they may proceed td business : till five appear those present usually adjourn from day to day to await the at- tendance of at least the minimum number." A quorum of members being assembled, they are called to order by the senior as presiding officer, and, as the roU is called by the judge advocate, take their seats according to their relative rank alternately at the right and left of the president, in the manner of all judicial bodies. The judge advocate is com- monly seated at the table opposite the president, and seats are provided at his right and left for. the accused and his counsel, and for the witnesses; the former being also generally furnished with a separate table. OPENING TO THE PTTBLIC. It Is, in the majority of cases, at this stage that the court is pronounced by the president to be open, or is considered to be open, to the public, the accused being at the same time introduced. Where indeed there is preliminary business to be deliberated upon, of the kind — 235 presently to be considered — ^whlch does not require the presence of the accused, the public is also properly excluded tiU this is transacted : in the discretion of the court indeed the opening may be deferred tiU the time has arrived for the arraignment. In general, however, the opening of the court either concurs with its original assembUng or follows closely upon it. It may properly, therefore, be noticed at this point. Originally, (under the Carlovmgian Kings,) courts-martial, (according to Von Molitor,") were held in the open air, and In the Code of Gustavus Adolphus, (Art. 159,) criminal cases before such courts were required to be tried " uthder the blue skies." The modern practice has inherited a similar publicity. With us, when once opetied, the court-martial room — though at any stage of the trial it may be permanently closed at the discretion of the court — ^is, in gen- eral, continued open throughout the investigation, (except when the doors are closed for deliberation on interlocutory matters,) and also during the »As to the wearing of uniform, sefe remarks in G. O. 29, Dept. of the South; 1872: Do. 43, Dept. of Dakota, 1874. The more recent G. O. 103 of 1890, In prescribing that the full uniform coat " will be worn on all dress occasions," adds— " except that, when rendered necessary by the state of the weather, the president of a court-martial, court of inquiry, or retiring board, may authorize undress uniform to be worn by the members of the court or board at their sittings." " That a less number than a quorum is authorized to adjourn, see Digest, 88. "And see, on this subject, the learned and interestirig publlcaHonr-" Ober OffentUch- kdt tan kUnftlgen Deutschen Mllitarstrafprozesse," by M. Gr. Schnlthdss, Wflrzbnrg, 1893. 440593 O - 42 - 11 162 MIUTABY LAW AJSTD PRECEDENTS. Closing arguments of the counsel, or till Uie final clearing for judgment." While thus open the public is allowed to come and go much as in the civil courts. Noisy and improper persons may of course be required to withdraw and if necessary be forcibly excluded. So, if it is determined by the court, as it may be, that its proceedings shall not be reported except officially, newspaper and other reporters may be required not to take notes, under penalty of exclusion if they attempt it." In general, however, such reporters are freely ad- 236 mltted, and sometimes even special accommodation is provided for them. Where there is difficulty in clearing the court, excluding particular persons, or keeping order, the proper commander at the post, station, &e., may be called upon by the court to furnish, and will properly furnish, a sufficient force for the purpose. In the cases also of this nature which are within the provision of Art 86, yet to be considered, the court may itself punish as for a contempt. III. PRELIMINARY BUSINESS. Five members having assembled, a court is constituted — not a court empow- ered to proceed to trial, because the member^ have not as yet qualified for this purpose by taking the oath prescribed by Art. 84, but a court competent to proceed with the preUminary business. This business is of two kinds — (1) that which may be transacted before the accused appears or in his absence, — (2) that which can be transacted only in the presence of the accused. BEFORE THE INTROBXTCTION, OR IN THE ABSENCE, OF THE ACCUSED — Settlement of questions of precedence.. In the great majority of cases, no business whatever is found to be required to be transacted by general courts-martial at this stage, the occasions for such business being removed by the previous proper revision of the charges, framing of the convening order, &c., at headquarters. From time to time, however, an error in such order, caused by a misconception of the relative rank of members, may give rise to a question of precedence on the court. The order Itself can of course be amended only 237 by the convening authority ; but a slight error of the kind indicated, such for example as may occur from mistaking the date of a commission, may ""At other times," (<. e., other than occaeiong of clearing for deliberation,) "except to those persons who have been summoned as witnesses, a court-martial is open to the public, military or otherwise, subject to the capacity of the room or tent In which it is held, and the convenience of the court and parties before It." Simmons § 464. And see Clode, 136-6 ; De Hart, 94 ; Digest, 318. "See Clode, 139; Hough, (P.) 778; De Hart, 109. In some cases the court has made a special order on the subject early in the proceedings. Sec Gen. Whltelocke's Trial, p. 7 ; Lt. Col. Johnson's do., p. 3 ; Col. Quentln's do., p. 349 ; Capt D. Porter's do., p. 377; Capt. Hurtt's do., p. 5. In the flrst-named case the reason was assigned that otherwise subsequent witnesses would be advised as to what previous witnesses had testified. On Gen. F. J. Porter's 3*ial, p. 31, the Judge advocate liavlng called the attention of the court to the fact that the testimony as published In the newspapers contained gross errors, the court cautioned the reporters present against a continuance of the same. In U. S. v. Holmes, 1 Wallace, Jr., 10-11, it was announced on the trial by Mr. Justice Baldwin: — "We have the power to regulate the admission of persons and the character of proceedings within our own bar. • • • No person will be allowed to come within the bar of the court for the purpose of reporting, except on condition of suspending all publications till after the trial Is concluded." But at militarv law, a publication, after an order by a court-martial prohibiting it, would not be punishable as a contempt. See Chapter XVII. The right to prohibit publications does not authorize the seizure by the court of notes taken in violation of its order. In the case of Rlcketts v. Walker, dlcutta 1841 (Hough, P., 718; Manual, 162, note,) a reporter recovered nominal damages against the president of a court-martial for causing the forcible seizure of his notes which he had continued to take after b^g ordered to desist ' MILITAEY LAW AITO PRECEDENTS. 163 often be amicably corrected by the members themselves In their taking their proper places without waiting for the formal modiflcation of the order. Where the error is less simple^ as where its correction will require a construction of the law by the convening ofllcer, the proper course will be to refer to him the ques- tion involved for his determination. Now that brevet rank is no longer operative on courts-martial, questions of precedence are less common than formerly. The most recent question of any importance of this class was whether an ofiScer, while acting as ald-de-camp of the General or Lieut. General, should sit on a court according to his increased rank as such or the inferior rank of his actual military office; and it was held, by the Judge Advocate General," and the At- torney General " concurring with him, that the former, as being the legal rank of the officer at the time, should determine his relative position on the court. Questions as to the sufficiency of the charges. On looking over the charges in the case to be tried, copies of which wiU properly have been laid before the members by the Judge Advocate, the same may be found by the court to be so clearly defective upon their face as properly to call for revision before trial." As already pointed out, the court has at this stage no authority of itself to make or direct to be made any material modification of the charges. If, therefore, the necessity for such modifi^catlon Is obvious, the court will at once communicate on the subject with the convening commander, with a view to having the proper correction or re-framing ordered. Or if the judge advocate has already been authorized by such commander to make, with the concurrence of the court, such amendments of the pleadings as may be found desirable, the required changes may be made forthwith. Other questions. The court at this stage may also entertain any serious 238 consideration — suggested by the form or contents of the convening order, or by the charges, or the two together— afEecting its own -legality or powers as a military body. But unless the defect be a palpahly fatal one, which, if not corrected, will clearly invalidate the proceedings, the court will not in general, of Its own motion, raise an objection calling In question the original authority of the commander, or its own right to exist or to try, but will leave the same to be regularly raised by the accused, as presently to be indicated. ATTEB. THE INTBOBUCTIOIT OE THE ACOTJSED, AND BEEOBE THE COTJBT IS SWORN. The principal preliminary business of the court at this stage will consist of— 1. Entertaining objections by the accused to further proceedings ; 2. Entertaining objections by way of challenge to individual mem- bers. 1. At this point the accused, being present, may properly raise, (and the court may properly hear and determine,) any objection going to the legal existence of the court or its authority to proceed further in the case. Thus he may ob- ject that the court has not been legally constituted or composed, or that it is without jurisdiction either of the person or of the offence or offences charged. Till the charges are regularly before the court, upon the arraignment, an objec- tion to these or to the power of the court to try them, would be premature. But the present stage is -an appropriate occasion for raising, arguing and passing upon exceptions to the court as constituted or composed, such exceptions being of a radical character. What objections of this class would be valid and final has already been indicated in the Chapters to the Constitution and Composi- tion of General Courts. The Chapter on Jurisdiction has also exhibited the "DlOBST, 146. ,. , ^ , ^ ^ » 16 Oplns., 551. As to the right of precedence, on courts-martial, of assistant surgeons with the rank of captain, see Digest, 176. « See Simmons § 457 ; De Hart, 111. 164 MILITARY LAW AITD PKECBDENTS. groimds on wMdi oould be based exceptions to the authority of the court to try the accused. These classes of preliminary objections need not therefore be further cMisidered. It wiU be sufficient to remark that, In case any of ttie objections referred to be interposed by the accused and sustained by the coinr^ the presidrait* will properly communicate the facts to the convening authority for such action as he may deem expedient. 2. Whether or not any exceptions to the court as a whole be taken at this stage,— and such exceptions are comparatively rare,— this time is the 239 proper one for ofEering objections to the members by way of chattenge under the 88th Article of war. The subject, however, of such objectlonB, being an extended one, will best be considered in a s^arate Chapter. IV. INTBODUCTION OF ACCUSED. CASES OP OFFICER AND SOLDIER DISTINOTJISHED, &c. ITie court having no control over the person of the accused outside the court-room," the accused— if an offlcei^-will be conducted to the presence of the court by the adjutant, officer of the day, or other officer detailed for the purpose; or he will be ordered by the proper superior to appear before the court, or to report to the judge advocate for trial; or, (as where not in arrest,) he will appear voluntarily when notified of the time and place." The first form is not com- monly resorted to except In a case gf close arrest. An enlisted man is usually sent, by the officer of the guard or adjutant, to the court-room under guard, his guard being directed to report to the judge advocate. In the case of a non- commissioned officer a guard may be dispensed with. Upon an adjournment, the accused is remanded, or reverts, to the custody, control, or status which he was under when first introduced." Whether officer or enlisted man, the ac- cused should appear before the court In imlform ; officers and non-commissioned officers without their side-arms or sashes." PRISONER NOT TO BE INTRODUCED IN IRONS. The accused should not be introduced with hands or feet fettered, and if he has been previously confined in Irons these should be taken off before he Is brought into the court- room, — ^unless there be reasonable apprehension of an attempt to escape, or of violence on his part, or of a rescue. It is a principle as old as the common law that, exc^t where such apprehension Is entertained, the prisoner, at his arrai^- ment, should be free In all his limbs before the court, so that he may be in 240 no manner hampered in making his defence." In the practice of courts- martial, inasmuch as the accused is introduced into the court before arraignment In order to be afforded an opportunity to exercise the right of ■" See Digest, sis § 17. " Simmons % 356, 473 ; De Hart, 113 ; Digest, 814. "At the opening of Gen. Hull's trial it is stated, (p. 3,) that the accused appeared " accompanied by an ald-de camp." "Simmons § 473. " See Q. O. 29, Dept. of the South, 1872. But see Clrc. No. 9, (H. A.,) 1890, aa to the clothing to be worn by a deserter, " until after the determination of the trial," tie. "■"Every person, at the time of his arraignment, ought to be used with all the ha- manlty and gentleness which Is consistent with the nature of the thing, and under no other terror or uneasiness than what proceeds from a sense of his guilt and the mlB- fortnne of his present circumstances ;" and therefore ought not to be brought to the bar in a contnmelious manner, as with Ijls hands tied together or any other mark of ignominy and reproach, nor even with fetters on his feet, unless there be some danger of a rescous or escape." 2 Hawkins, c. 28, s. 1. And see 2 Hale, 219; Layer's Case, 16 How., St Tr., 101, 129 ; Bex v. Walte, 1 Leach, 28 ; 1 Bishop, C. P. S 731, 955 ; Tytler, 220 ; Ken- nedy, 41 ; Simmons S 473 ; De Hart, 113 ; DiobSt, 334r-5 ; People v. Harrington, 42 CaU 165 ; G. 0. 52, Dept. of the East, 1869 ; Do. 47, Dept. of Dakota, 1871. MILITARY LAW AND PEECEDENTS. 165 challenge, this privilege of freedom fi-om physical restraint Is allowed him and enforced by the court from and after his first appearance, throughout the triaL DISPOSITION OP ACCtTSED WHEN NOT PRESENTABLE, OB ILL, &c. If the accused makes his appearance improperly dressed, or in a dirty or un- kempt condition, the court may require him to be removed and returned with the neglect remedied. If he Is intoxicated, he should not be allowed to be arraigned till he Is sober. If he be 111, and unable to leave his quarters or the hospital— a fact which should properly be shown by a medical certificate— the court wlU ordinarily adjourn to a day on which he can probably appear in a condition to plead and defend. V. ADMISSION AND STATUS OF COUNSEL. PKOFEB TIME POR ADMISSION. It is upon the original introduction or ai^)earanee of the accused that his counsel will properly be admitted, if he make application to the court for the purpose." Hughes •• fixes the proper time for such application as after the plea ; De Hart as after the court has been sworn, though he adds that the privilege " may be allowed at any time." *" 241 It is obvious that, prior to the organization of the court, counsel 'may be of material assistance to the accused, especially in the presenting of objections to the authority of the court to proceed with the trial, and hi' the ofteWng and maintaining of challenges : it is at this early stage, therefore, that Counsel will most advantageously be admitted. THE ADMISSION A PRIVILEGE, NOT A RIGHT. General Order, No. 29, of 1890, now requires commanders of posts, where general courts-martial are convened, to detail, at the request of an accused, a " suitable officer " as his counsel, if practicable. But in general It is to be said that the admission of counsel for the accused In military cases, is not a right but a privilege only," but yet a privilege almost invariably acceded and as a matter of course ;" and this whether the counsel proposed to be Introduced be a military or civil, professional or improfessional person. But being a privilege, it Is subject to be restricted by the court. Thus while an adjournment will In general be had, or a continuance be granted, to afford the accused an opportunity to procure suitable counsel, the court will not delay beyond a reasonable time for such a purpose," and at a period of war or other pubUc emergency, when, immediate action is called for, may even refuse to delay at all. So the court may sometimes properly decline to admit the particular person offered as counsel, — as where he is an attorney who has' been prohibited on account of misconduct from practising in the executive departments, or an officer dismissed for cowardice or fraud and with whom officers are precluded from associating by the 100th Article of war, or a person of notoriously *• A court-martial has no authority to design counsel. The court, however, or Judge advocate, will properly advise an ignorant soldier of his prlyllege to be assisted by counsel If desired. But see G. O. 29 of 1890, cited In text, post. "Page 53. "Page 132. "See 1 McArthur, 44; Hough, (A.) 38; Kennedy, 95c, Hu|;he8, 63; Macomb, 47; Ben^t, 94 ; Digest, 199. Contra, De Hart, 318. And see Tytler, 251. * Art. VI. of the Amendments to the Constitution provides that " In all criminal prose- cutlonB " the accused shall " have the assistance of counsel for his defence." The reference here is to prosecutions before the criminal oourtt of the United States, only. Barron v. Mayor of Baltiihore, 7 Peters, 243 ; Ex parte Watklns, Id., 573 ; Twitchell v. Com., 7 Wallace, 326 ; Edwards v. Elliott, 21 Id., 557 ; Walker v. Sauvinet, 92 U. S., 90 ; Pearson v. Tewdall, 96 U. S., 294 ; 1 Bishop, C. U » 726 ; Wharton, C. P. & P. I 920. Mili- tary coarts, however, though not bound by the letter, are within the spirit of tlie provision. MDlQBBI, 110, 311 ; G. C, M. 0. 25 of 1876. 166 MILITABY LAW A3SD PHECBDBNTS. 242 bad character, or who Is otherwise clearly exceptionable." Further, the court may exclude a counsel guilty of disrespect or other improper be- haviour In Its presence, or who unreasonably delays the proceedings by repeated technical objections, although such behaviour may not be of a sort made punish- able by Art. 86." \But where counsel Is thus excluded the court will ordinarily allow the accused af'reasonable time for procuring other counsel if lie desire it. STATUS OP CdXJNSEL. The strict rule which usage formerly prescribed in regard to the action of counsel on military trials, and especially enforced as against professional counsel, was such as to render their position embarrassing if not indeed humiliating. By this rule they were precluded from all oral communication, not being permitted to examine witnesses viva voce, or to address the court by statement, motion, or argument, but being required to express themselves either through the accused or in writing." In his recent edition of 1875, (8 476,) Simmons states that there has not been "any relaxa- tion of the weU-established rule of courts-martial as to the silence of profes- sional advisers and their taking no part in the proceedings. On the contrary it has been felt," he adds, that such courts should be " more than ever 243 on their guard to resist any attempt to address them on the part of any but the parties to the trial." But the more recent radical reconstruction of the British military law has done away with the previous usage in this regard; and Ifa the Rules of Procedure (§ 87) it is declared that the counsel both of the prisoner and of the prosecutor at a military trial shall have the same right as the party for whom he appears to call and orally examine and cross-examine witnesses, as well as to make objections and statements, put in pleas, and address the court As to the practice before courts-martial of the United States, — ^while the doc- trine In question Is quite strictly laid down in the treatises and In sundry Orders, the actual procedure has become much more indulgent and reasonable ; not merely military but professional counsel being in general permitted to ex- amine the witnesses and address the court without objection on the part of the members. Occasionally indeed the old rule is insisted upon at the outset, though relaxed later; but more frequently much the same license is allowed at all stages as at an ordinary criminal trial, subject, however, to a restriction of the privilege when counsel by their prolixity, captlousness, disrespectful man- ner, or other objectionable trait, fatigue or displease the court." Thus, in prac- "In O. O. 73, Dept. of the East, 1865, the admission of a regimental commander as counsel for a member of his regiment, before a court composed entirely of officers of the regiment, was commented upon as improper. "A counsel who was a military maij would be liable to charges and trial under the circumstances. See the two cases of ofiJcers tried for improper conduct while acting as counsel, published in G. C. M. O. 37 of 1873 ; Do. 5, Dept. of the Platte, 1874. "No rule of military procedure has been more strictly insisted upoB than this. See Tytler, 251 ; Delafons, 166 r Hough, 673 ; Kennedy, 95 ; Napier, 93 ; Hughes, 53 ; Hickman, 74 ; Franklyn, 49 ; Gorham, 39 ; Macomb, 30 ; O'Brien, 236 ; De Hart, 132,' 318 ; Gil- christ, 16 ; Gen. Hull's Trial, 14 ; Capt. Thomas Howe's Trial, 253 ; G. O. !,■ 16, Dept of the Mo., 1862; Do. 52, Dept. of the Pacific, 1865; Do. 52, Dept. of the Cumberland 1868 ; Do. 32, Dept. of the Gulf, 1875 ; G. C. M. O. 113, Dept. of the Bast, 1871. This doctrine was carried so tar in the British practice that professional counsel were not even allowed to read to the court the concluding defence or statement of the accused. Simmons § 586, and other authorities above cited; also Gen. Whitelocke's Trial '763* Lieut. Hyder's Trial, 106. Warren, (p. 153,) complains that, when acting as counsel before a court-martial, he was permitted only to communicate in whispers with Us client ! " In some of the cases In which the old rule was enforced, the counsel had either used " scurrilous " language, or had taken up time with inappropriate pleas or moUons See G. O. 16, Dept. of the Mo., 1862 ; Do. 52, Dept. of the Cumberland, 1868 • Do «2 'umi* of the Gulf, 1876 ; G. C. M. O. 7, Dept. of the Mo., 1888. . • o^, uept. MILITAET lAW AUD PEBCEDENTS. 167 tlce, the old rule is mainly held in reserve, to be enforced by the court at its dis- cretion in exceptional cases. Objection to the reading of the final addresS) or to a closing oral or written argument by the counsel, is now of the rarest occur- rence." HIS BELATION TO ACCTTSED AND COTJBT. A properly qualified 244 counsel will of course do his full duty toward the accused while pre- serving by his deportment the respect of the court. He will only assist the accused in his plea, in the making of such motions as may be desirable, in the production, examination and cross-examination of vritnesses. In the adduc- ing of the necessary written evidence and the testing of that offered by the prosecution, and la the statement or argument. Counsel detailed, under the 6. O. of 1890, above mentioned, have in some instances discovered a tendency to render their services in a perfunctory or imperfect manner." When this appears, and the court is of opinion that the defence of the accused is not being properly presented, it may well adjourn and request the post commander to as- sign new counsel. Detailed counsel have also in some cases manifested an undue independence toward the court, not treating it with proper courtesy, and, in their arguments commenting disrespectfully upon its rulings." Indifference to the interests of the accused, or a lack of deference toward the court, is, as remarked in a recent Order," " incompatible with a faithful and efficient discharge of the important trust confided " to counsel. COUNSEL FOE. PASTIES OTHER THAN THE ACCUSED. The subject of the employment of counsel to assist the judge advocate vrlll be remarked upon in Chapter XIII. Where the prosecuting witness is properly required to be present during the trial, counsel may be permitted to attend him if he desires it. Such attendance is not of frequent occurrence, but has been acceded to in sundry cases of unusual importance. Whether counsel to represent other per- sons interested in the investigation may be admitted should depend mainly upon their relation, if any, to a recognized " party " in the case, but is a matter in the discretion of the court. In the leading case on the subject, that of Com- mander Mackenzie of the navy. In which such admission was applied for, — vis. by two counsel, (representing the relatives of the officer executed by order of the accused, ) who asked to be allowed to be present, independently,, at the trial and examine and cross-examine the witnesses, &c., — the application was 245 denied by the court. In the army such counsel might perhaps have been admitted on the applications of, and to assist, the judge advocate, or prosecuting witness, if any, but scarcely otherwise. VI. THE CLERK AND OTHER ASSISTANTS OR ATTENDANTS. Here may be noticed the minor personnel of a military investigation, such as reporters, clerks. Interpreters, guards, orderlieSI, and— where specially authorized — ^provost-marshals. « See G. O. 7, Dept. of the Mo., 1862 ; Do. 7, M., 1888.; Do. 52, Dept. of the Pacific, 1865; also Gen.' Porter's Trial, (1862.) In the history of military trials some very able arguments have been delivered by legal counsel; such, for example, as those of Hon. T H Benton on the trial of Lt. Col. Fremont, of Hon. Eeverdy Johnson on the Assassi- nation Conspiracy Trial, of Jas. T. Brady on the trial of Beall, and of D. D. Field on the court of inquiry in the case of Gen. A. B. Dyer. The ability of the arguments of counsel before French eonseiU de guerre has been especially marked; as for Instance the argument of Berryer on the jurisdieUon of the court in the case of Marshal Ney, and that of Lachaud on the merits at the trial of Marshal Bazaine. « G C M O 31 Dept. of the Colorado, 1893 ; Do. 66, Dept. of the Platte, 1893. «g' c' m' o! 66,' Dept of the Platte, 1893 ; Do. 24, Dept. of the Columbia, 1894. "Gen. Brooke, In the Order of his Department above cited. 168 MILITARY LAW Am> PEECEDENTS. REPORTERS. The appointment of the official "reporter" being speciaUy devolved by statute— Sec. 1203, Rev. Sts.— upon the Judge Aavocate, Us duties, &e., will be remarked upon in Chapter XIII. The authority for his employment is indicated, and his compensation fixed,* In pars. 1046 and 1047 of the Army Regulations. The oath of the reporter is prescribed in Circular, No. 12. of 1892. CLERKS. It is declared in the Army Regulations, par. 1046, that— "The convening authority may, when deemed necessary, authorize the detail of an enlisted man to assist the judge advocate of a general court-martial in preparing tne proceedings of the court." In a case of special difficulty, or where a pro* tracted trial is involved, an Increased number of enlisted men may be detailed as clerks. Such employment does not entitle to " extra " or additional pay. Par. 1048, A. R., directs — " no person in the military or civil service of the govern- ment can lawfully receive extra compensation for clerical duties performed for a military court." Either the judge advocate, or the accused, may employ, but at his own exp^ise, a civilian clerk to attend and assist him at the trial. The annual Appropriation Acts no longer, as formerly, provide for " compensation of citizen clerks." " Clerks, unlike reporters, are not required to be sworn. IITTERFRETERS. Where any of the proposed witnesses are foreigners 246 who cannot speak our language, or who speak it imperfectly, a compe- tent person Is procured by the judge advocate to act as an Interpreter on the trial." Interpreters, in our practice, are summoned and paid as wit- nesses," and sworn as such." Where a regular interpreter has not been obtained, one of the witnesses present may, if competent, be used as an interpreter of the testimony of the others ;" or a bystander or even one of the court may be resorted to. In an important case, the accused may. properly have summoned for him a person as interpreter, by means of whom to correct the translation of an Inter- preter summoned on the part of the prosecution" ORDERLIES, GXTARBS, &c. The necessary attendant or attendants — orderlies, messengers, or guards — will properly be furnished, from the enlisted force present, by the post or local commander, on the application of the judge advocate, whose business it will be to act as messengers for the court and judge advocate, protect the court from disorder, guard public property in the court- room, &c. PROVOST-MARSHALS. In cases of special consequence, involving un- usual details of administration, the convening authority, if he deem it expedient, may detail an officer as provost^martial, whose duty it will be to serve subpoenas, attachments and hotices, take charge of prisoners and witnesses, enforce order in the courtroom, and otherwise execute the mandates of the court and dlrec- " For the payment of such compensation appropriation Is annually made by Congress. See next note. " The only appropriation now is — " For compensation of reporters and witnesses at- tending upon courts-martial and courts of inquiry, &c." Act approved Feb. 12, 1895. " Interpreters are not often required In our practice. The British authorities, espe- cially with reference to their employment In India, are much more full than ours in re- gard to the qualifications, &c., of Interpreters. See Simmons S 477-479 ; McNaghten, 137 ; Gorham, 40; Jones, 68; Bules of Procedure, 27 (D,) 71 (A,) (C.) "Par. 1049, A. K. Where exceptional service is required of an interpreter he may perliapB be further compensated out of the fund appropriated for the contingencies of the army. "The form of oath to be administered to an interpreter is set forth in Clrc No 12 (H. A.,) 1892. ■ ' " People V. Ramirez, 56 Cal., 633. "O'Brien, 259-260. MILITARY LAW AND PRECEDENTS. 169 tlons of the Judge advocate. The attendance, however, of such an auxiliary ofiSdal, though apparently not unfrequent in the British practice" has, 247 with us, been more commonly resorted to before State mlUtla courts'* than before courts-martial of the United States. At the trial of the Con- spirators against the life of President Lincoln, &c.. In 1865, a " special provost- marshal " wasf assigned to attend the commission,'' During the late war ■provost- marshals were frequently appointed or detailed as executive officials," but, though sometimes acting as judges of provost courts," they were rarely employed in connection with general courts-martial." " See Simmons, ! 490. At' an early period he executed sentences, and, originally, ap- pears to have been an ofScer of tlie Marshal's Court. Grose, 59. 73. " See Maltby, 126 ; The Militia Reporter, pp. 9, 106, 159, 249 ; Trial of Lt. Col. Bache, (Fa. Militia,) p. 4. "DiGBST, 315, note. ■■ ProTost-marshala -were appointed under the Conscription Act of March S, 1863, as agents for enforcing the draft, arresting persons avoiding or ottstructing the same, &e., under the orders of a JE^ovost Marshal General. Besides these statutory officials, officers of the army were detailed to act as provost-marshals for the performance of multifarious duties In the large commands. Every duty Indeed which did not clearly fall within the specialty of some particular branch of the service seems to have been devolved upon this Invaluable class of officers. Among their occupations may be noted the arresting of marauders, stragglers, deserters, soldiers without passes, spies, disorderly persons, per- sons violating the laws of war, prisoners of war without paroles, &c., the supervision of paroled prisoners, execution of sentences of death and imprisonment, the esaminati6n of deserters from the enemy, the control of the business of sutlers and other trades, the Issuing of passes and permits, the care of refugees and freedmen, the charge of cap- tured property, the administering of oaths of allegiance, the regulation of the delivery of the mall and express packages and of the circulation of newspapers, the protection of private property, protecting elections, &c. Among the many Orders prescribing their duties, the following may be cited : G. O. 60, 188, Army of the Potomac, 1862 ; Do. 10, Id., 1863 ; Do. 35, Dept. of the Mo., 1862 ; Do. 22, Dept. of the South, 1864 ; Do. 146, Dept of the Gulf, 1864 ; Do. 23, Dept of Kans., 18^4 ; Do. 4, and Circ. 3, Dept & Army of the Tenn., 1864 ; Do. 65, Dept of La., 1865 ; Do. 1, Dept of Miss., 1865 ; 6. Field O. 3, Army & Dept of West Miss.. 1865 ; Circ. 12, Dept of Va., 1865. The provost-marshal is still recognized in the military code — in Art 67 — as an officer who may have charge of prisoners. See Chapter IX. " These mar courts are remarked upon in Fart 11. "Gen. Wilkinson, Memoirs, vol. 1, p. 75, expresses the opinion that a court-martial " onght always to be attended by orderly officers and a guard, proportioned to Its rank and the solemnity of the inquiry, for the preservation of order and the maintenance of decorum, the escort of prisoners, and the service of precepts." CHAPTER XII. THE PHESIDENT AND ICEIIBEBS. 248 It Is with thg appearance of the accused that the capacities, individually and relatively, of the other persons concerned in the proceedings begin to have the special significance which they carry through the trial. It will be well therefore to consider here the peculiar functions of the President and Members, and then of the Judge Advocate. THE PRESIDENT. WHO HE IS. In the British law, the president of a general court-martial is a distinct oflScial appointed as such separately from the other members. In our law, prior to 1828, he was in general expressly detailed as such. Since that date he has been simply the senior member, and a specific designation of an officer as president, though found In some early cases, is now never made In Orders convening military courts In our service.' The senior in rank of the officers named In the convening order, if present at the assembling of the court, becomes president ; If not present, the senior of those who are present presides, till a senior to himself arrives or is added to the court. If the presiding officer is removed by any casualty, or is relieved, or absents himself, the senior In rank of the members remaining succeeds him. Throughout the trial it is the senior for the time being who presides. If a junior member is promoted In the army above the senior pending the trial, such member becomes president.* It Is immaterial what may be the 249 actual rank of the senior,* or to what branch of the service he belongs : he is president solely because of his seniority In rank In the army to the other members. HIS FUNCTIONS — ^AS PRESIDINa OFFICER. The only statutory func- tion assigned to the president by our law is that of administering the oath to the judge advocate, required of him by the 86th Article of war. The Army Regulations, par. 1005, (employing the language of the Secretary of War in the case of Lt CoL Backenstos,*) declare that — " The president of a court-martial, besides his duties and privileges as a member, is the organ of the court to keep order and conduct its business. He speaks and acts for the court in each in- stance where a rule of action has been prescribed by law, regulatigns, or its own resolution." According to the function here assigned him, the president opens 1 See pv. 1004, A. E. > The fact of hla promotion and of his taking his Beat accordingly as president should be formally entered In the record of trial on the day on which it takes place. » In the British law, the president of a general court, (except In certain special cases,) " shall not be under the rank of a Held oficer." Army Act S 48, (9.) * See G. O, 14 of 1850, also cited post. 170 mhitaby law and precedents. 171 the court and calls It to order; announces it adjourned at the close of th0 session, when adjourned by vote of the majority, or at the hour required by Art. 94 ; preserves order during the session, checking anything lilte disorder or inde- coirum on the part of the members of the court, the judge advocate, the accused, the- counsel," the witnesses, or the audience, while at the same time seeing that the rights of every one entitled to consideration are respected;" conducts the routine of each day, calling for or announcing the proper proceedings in turn, and talces care that the regular forms of business are duly observed. In the absence of objection, he may direct as to the more familiar points of order and procedure, and will properly take the formal action incidental to the delibera- tion of the court — sucK as the submitting to the court of a proposition or motion by a member,' the ordering of the courtroom to be cleared when requested by a. member, or voted, or when required by law, the declaring of the decision 250 of the court after deliberation had, &c. So, in the absence of objection, or whCTe the acquiescence of the court is to be presumed, he may give assent to a member or the judge advocate leaving his seat for a temporary purpose, to a brief consultation between the accused and his counsel, or other slight matter of Indulgence or comity. But in such and all other cases In which he acts as presid- ing officer, he simply acts for and In the name of the court. Other than as Its representative and mouthpiece he has no separate authority. He can. make no ruling as to testimony or otherwise, and can announce a ruling only as a con- clusion of the court. He can neither act independently of the court," nor can he act against the will of a majority of the court." On the other hand he cannot trench upon the authority of the Commander — as by excusing a member from attendance," &c. AS A MEMBEB. In deliberating, voting, and on all occasions of judicial action, the> president, in our law, simply coimts as a member. As a m^nber he is but the equal of the other members." Upon a question or issue raised he may state his views like any other member, but it is for the court, by a majority, to decida" In the British service, " in the case of an equality of votes on the sen- tence, or any question arising after the commencement of the trial except the finding," the president is given a casting vote." In our law he has no casting vote on any occasion, his vote counting for no more than the vote of any other member. AS CHANNEIi OP COMMUNICATION WITH THE COMMANDEB. As the official organ of the court it is through him that communications from the convening or reviewing officer should in general be made to the court, 251 and by him that the court should communicate with that authority. As » Note in this connection the 1st Speciflcation In G. O. 37 of 1873. » " He is responsible that ev«y person attending the court is treated with proper re- spect" Jones, 70. And see Gorham, S3. .,>..,,, 7 ThA nrpi the Mo.. 1884. 8 As by assuming of himself to revise the record. See Digest, 679. » See G O 14 of 1850 in which the action of Lt. Col. Backenstos, In fltesumltag as presi- dent to adjourn the court against the vote of the majority, la cOndeiBnea a* ^hoUy un- authortod and irregular. In Orders of the Dept of Dakota, (G. C. M. 0. 89, 165. of 18S2 \ the Doint is noticed that the president Is not authorized to appoint a &&$ to which the court shall adjourn or the trial be continued, or to change the day which has been fixed by the court. i» See G. O. 2, Dept. of the Mo., 1862. « See par. 1005, A, R. ^ „ , „„ . M G. C. M. 0. 55, Dept. of the Mo.. 1884. "Army Act § 54 (8.) 172 MlLITABr LAW AND PRECEDENTS. Jones " writes ot the same official In the British law :— " He is the channel of communication between the court; and the convening authority." With us also this is deemed to-be the regular and official course, though the judge adTOCate has not nnfrequently been made the mediom." AS A SOITBCE OP COHKAHD. The president of a conrti-martlal liafl no command as such. He cannot, as snch, issue an order, properly speaking, to a member or the judge advocate, or to any other military person present A failure, however, to comply with his reasonable and proper directions in Seeping order and conducting the business of the court, while it wiU not subject the delinquent to a charge of disobedience of orders in violation of Art. 21, will render him amenable to trial under Art. 62. It is the duty of the president to call upon members who have absented themselves from a session, or part of one, for an explanation of such absence, but in such requirement, or any other which he may properly make^ he does not act in the capacity of commander, and if his requirement is not duly complied with he can only report the fact to the convening authority for his action." AS AUTHENTICATING OFFICES. The Army Begulatlons, par. 1037, direct that the president of a court-martial shall, (with the judge advocate,) authenticate its record by his signature in each case. These acts must be performed by the member who is the senior in rank of the members present at the completion of the proceedings, although during all the proceedings prior to the final another officer may have been senior and president The form of his authentication wiU be indicated in treating of the Record. THE MEMBERS. A MAJ0BIT7 TO OOVESN. We have seen that the law gives to each 262 member, the president Included, an equal voice, and it is to be added that all questions and issues, which are required to be passed upon by the court in the course of the proceedings, are decided by a majority vote. This general rule applies to the questions which arise upon the finding and in the adjudging of the sentence equally as to the questions and issues raised by challenges, special pleas, objections to testimony, applications for continuance, motions and other interlocutory proceedings; and to questions raised by or among tlie members themselves equally as to those raised on the part of the accused or judge advocate. The only exception to the rule is that prescribed by Art 96 — ^that a two-thirds vote shall be required to adjudge a capital sentence. But the finding of guilty which must precede such a sen- tence may be arrived at by a majority as In aU other cases. TIE VOTE. AU the members must vote where a vote is required, but a tie vote, when they are of an even number, is no vote, or rather is not a majority and can have no effect as such. That Is to say, a proposition upon which the vote is a tie is not carried. The application of this prhiciple to the finding and sentence will be lUustrated hereafter. KODE OF VOTING. As to the manner of voting the only provision of the written law is that of Art 95, that : — " Members of a court-martial, in giv- "Page 70. And Gorliam, (p. 38,) observes: — "The president acts In the name of the conrt In correspondence." a " Strictly, conununlcations from the convening authority to the court as such (and Dice vena.) should be made to, (and by,) the president as Its organ ; communica- tions relating to the conduct of the proaeeutUm, to, (and by,) the Judge advocate." DIOBST, 318. " G. C. M. O. 28, Dept. of Texas, 1884. MIUTABT lAW AKD FBBCBDENXS. 178 Ing thrfr Totes, shall begin with the youngest in commission," i, e. the junior membe^r. The main object o'f this provision, wliich, taken from the then exist- ing British code," first appeared in our original Articles of 1775, appears to be to secure the members junior in rank from being influenced in their opinicms by the views of their seniors. " In no other way," observes Olode," " could this freedom be secured." The form and rule of voting which usage has prescribed In deliberating upon the Judgment will be noticed in a subsequait CJhapter. THE UEDICBEBS TO ACT AS A TTNIT. Whatever may be the personal opinions of individuals, and however slight may be the majority by whldi 253 a result is arrived at, the members in their decision and action must be and appear as a unit. That this is required Is but an Illustration of the principle that^ all military action must, as far as practicable, be summary, final and conclusive. Thus a ruling upon a plea or exception is the ruling not of such members as have concurred In it, or of such a majority, but of the court ; a finding is the finding of the court, a sentence is the sentence of the court — as a unit. The law Ignores differences of opinion — majorities or minori- ties — in the result, and even prohibits the disclosure of the votes and opinions by which such result has been attained. With the civil tribunals a majority of the judges pronounce the judgment of the court, but who constitute the ma- jority is made Imown, and the minority may, and often do, express their dis- senting views." With military courts all dissent is merged and lost in tbB conclusion reached, whatever It may be, of the court, which thus, to the parties, the pubUc and the readers of its record, api>ears as an Integral and indivisible whole. In view of this principle, no act performed by a part of the court can be legal," nor can an individual member be permitted to take any ofiScial action Independently of or counter to the court. Thus a member or members cannot le^Uy enter upon the record a protest against a ruling or judgment of the majority, *. e. the court, even though the same may be in fact errwieous or imjust. So, the president or a member cannot, on a revision, correct an error tn the recorded proceedings, but the cojrrection must be made as the act of the court Individual members may make. Independently or lit combination, a recommendation to clemency, but this is because the same is a personal act, not an official proceeding of the court These illustrations of the general prin- ciple will be separately recurred to hereafter. I70T TO ASSUKTE INCOMPATIBLE FTTNCTIONS.— STATUS AS A WIT- NESS. For example, a member, while acting as such, cannot, at the same time, properly act — even temporarily and briefly — ^as judge advocate, in recording the proceedings or otherwise,"^ Nor can he, while remaining, i. e. without being duly relieved as, a member, act as counsel for the accused.*" He may i54 Indeed, without affecting the legality of the proceedings, testify as a witness, even where there are including himself but five members present, since. In so doing, he. Is not disqualified as, and does not cease to be, a membrar." But, except when called to testify merely as to character, it is most undesirable that a member should be placed in the position of a material witness npon a " See Art. VII of Sec. XT, of Ites, In. Appendix. Its original is found In the " English Military Discipline " of James II. See Appendix. "Mil. Law, 150. And see, to a similar effect, 2 McArthur, 259; Tytlet, 151-2'; De Ebrt, 175. >*So where juries disagree, the numbers on either side are commonly (thongh gen- wally irregularly and improperly) made public. *8ee Simmons § 630. " See O. O. 2, Dept. of the Platte, 1868. «• G. C. H. O. 62, 1874 ; O. O. 134, Dept. of the Mo., 1863 ; Do. 119, Id., 1867 ; Do. 29, Dept of the liakes, 1870. 174 mhitaby iaw and precedemtts. trial where he is to act as a Judge. In this connection Gilchrist " observes :— " If It is ascertained preyious to the assembly of the court, that the evidence of an officer nominated on a court-martial is required, he should be immediately relieved ; and if a member, after taking his seat and being sworn In, is called Printed Trial, Ap., p. 29. 176 MHJTAItY LAW AND PKEOEDBITTS. in the flndlngs and sentence of death. On Oapt D. Porter's trial in 1825," when on two occasions a member became rfck and tinable to attend, the court proceeded with the case with the express understanding, concurred In by the accused, that when the member returned, (as in each instance he did,) the pro- ceedings liad during his absence shouid be read to him from the record. On Oom. Mackenzie's triai in 1843,** a member who had been absent for two days during wliich no testimony had been received was re-admitted; but the same member, liaving subsequently been absent sick for three days during the taking of evidence, it was decided by the court on his return that he should be " ex- cused from further attendance." One of the charges in this case— it is to be remarked-^was "murder." On Com. Wilkes' trial in 1864," two members who had been absent on account of illness during the hearing of testimony returned and resumed their seats without objection, the proceedings had and evidence received meanwhile being read to them. In the case of one of them the testimony was read in the presence of the two witnesses who had testified in the interim, they pronounced it correctly recorded, and the member ded&red that he had no questions to put to them. On the trial by military commission of Dodd and others in Indiana, in 1864," wherever members were absent 258 throu^ sickness or other imavoidable cause, the trial was, with the con- sent of the accused, proceeded with ; the members, with the same consent, subsequently resuming their seats and having read to them the testimony Intro- duced in their absence. In Capt. Downing's case, where a member who bad been absent for two days on account of illness was not permitted by the court to resiuie his seat, the opinion was expressed, (in 1855,) by Atty. Gen. Gushing,** that the court had no such power to exclude the member, and that " whether the absent member shall act or not upon his return must depend upon bis own views of propriety and not npon those of the court" In our present practice, members who have absented themselves during the hearing of testimony retake their places in general without objection ; and that their action does not affiect the validity of proceedings or sentence, (provided five members have meanwhile been present,) is believed not now to be ques- tioned. Such action, however, (which is indeed of rare occurrence,) Is Irregu- lar and certainly not to be encouraged ; " and Mr. Gushing, in the opinion last cited, has noted how much less satisfactory it must In general be to hear testi- mony read than to receive it from the witnesses in person, observing at the same time their manner and bearing. Where Indeed there is reason to believe that such action may have resulted in any Injustice or material disadvantage to an accused party who has been convicted, the fact will properly induce a disapproval of the flndlngs and sentence or a mitigation of the punishment adjudged." " Printed Trial, pp. 367, 376. " Printed Trial, pp. 9, 107. « Printed Trial, pp. 136, 145. "Printed Trial, pp. 9, 73. «7 Opins., 98, 102, 108. « See G. O. 78, Dept. of the Cnmberland, 1867 ; G. C. M. O. 80, DIt, of the Paclfle, and Dept of Cal., 1880. " Digest, 495. In repeated cases of trials daring the war. In which members who had been absent during the hearing of material evidence were re-admltted, to participate In the trial and Judgment, and it did not appear that the aocnsed had assented to such re-admlsslon, the proceedings were disapproved by the reviewing anthorlty. Bee O. O. 91, Dept of the Ohio, 1864 ; Do. 36, Mid. Mil. Dept., 1865 ; Do. 06, Dept of the Platte 1871 ; Do. 2, Id., 1868 ; Do. 6, Dept of N. Mexico, 1862 ; Do. 86, Dept of the South] 1864 ; Do. 44, Dept of the Bast, 1865 ; Do. 13, Id., 1866 ; Do. 107, Dept of the Mo 1868; Do. 76, Second Mil. Dlst, 1868; Do. 54, Fifth Id., 1870. In most or some of these cases the action taken was probably Indaced by a consideration of possible Injustice done the accused. MILITAEY LAW AND PRECEDENTS. 177 INTBODXrCTION OF A NEW MEMBER PENDING THE TBIAI, 259 The above-cited ruling of the Secretary of War on Gen. HnU's trial covered also the case of a new member who, it was held, could be added to the court in the course of the trial, without aflfectlng the -wUdity of the sub- sequent proceedings, provided he were made acquainted with the proceedings had prior to his introduction. No new member was actually detailed on this trial. The ruling, however, has been recognized In our practice as authorizing the convening authority to add a member or njembers to the court pending the trial, where necessary to prevent a failure of Justice by reason of the court, In an Important case, being reduced by some casualty below five." This subject has already been remarked upon in the Chapter on the Composition of General Courts. CHANGE OE RANK OB STATUS OE A MEMBER WHILE ON THE COXTRT. That an officer is promoted while acting as a member of a court- martial affects in no manner his capacity on the court. The fact is properly noted in the record, and may perhaps give the officer precedence over another member or members and thus change his seat, but this is all. And the effect is similar of an appointment of a member to another office, though of the same rank, or of his transfer to another branch of the service ;— no such change can, per se, modify his status, nor will he cease to be a constituent of the court till duly relieved by competent authority." If a member of a court-martial receives notice that he is retired, or is dis- missed or discharged from the service, or that his resignation has been accepted, the fact should be at once noted on the record and the member should there- upon vacate his seat. A retired officer is hot eligible to sit upon a court- martial, and an officer, upon being dismissed or discharged, or upon his resig- nation taking effect, becomes forthwith a civilian. 260 BEHAVIOtTR OE THE MEMBERS, it is quaintly announced in Art. 87, that — "All members of a court-martial are to behave with decency and calmness," a directory provision dating back in our law to the Articles of 1775, which derived it, in substance, from Art. 48 of the Code of James 11. It will be of course for the president, " the organ of the court to keep order," to reqhire an observance of this Article in the first instance.°° A member who fails to behave with decency and calmness, i. e. behaves In a disorderly and disre- spectful manner, especially after a warning from the president, though not liable to be proceeded against as for a contempt under Art. 86,"^ will of course be subject to charges under Art. 62 or Art. 61, and this indeed iudependently of the provision of Art. 87. In a few cases published in Orders, members of courts-martial have been tried for drunken and disorderly conduct and disre- spectful language in the presence of the court, and severely sentenced " *'Ab to the undeslraWeness of such a measure, where it can be avoided consistently with the interests of the service, see Digbst, 321 ; G. C. M. O. 0, Dept. of Texas, 1883. In the General Orders, while the introduction of new members has been treated as an irregularity it has not In general induced a disapproval of the sentence, except where It did not appear from the record that the member had been made acquainted with the evidence taken brfore his appearance. See G. 0. 99, Army of the Potomac, 1862 ; Do. 46, Dept. of the ISast, 1864. « See G. C. M. O. 12, Dept. of Arizona, 1893. oDioosT. 495. In G. O. 104, Hept. of Ky., 1865, the proceedings In fifteen cases are disanwoved for the reason that a member of the court acted thereon for part of a day, after having received notice of his muster out of service. B>8ee Hoagh, 375. n 6. O. 14 of 1850 ; Army Regulations, par. 1006. "Bee O. O. 1 of 1858; Do. 66, Dept. of the Mo., 1866; G. C. M. O. 0. Fourth UU. DiBt 18*7. That members should not commit the disorder of vacating their seat! be- fore'tbe presidfnt has announced that the court has adjourned, is noticed in G. C. M. O. 66, Dep.t. of tbe Mo. 1884. 440593 0-42-12 178 MILITAEY LAW AND PRECEDENTS, THEIR COtTESE UPON THE INVESTIGATION. While the members may, and in practice not unfrequently do, not only put questions to the wit- nesses for the purpose of bringing out facts or elucidating the issue, but also take exceptions to questions proposed in the course of the examination, It is not com- patible with their function as judges to assume a controversial attitude or any- thing lifee an active part upon the trial. In a recent case in the Department of Dakota, it is remarked by Gen. Terry, that " members of courts-martial are not of counsel either for the government or the accused, and it Is no part of their business to try a case as such counsel," and that therefore " the frequent interposition of objections by members of a court Is a vicious practice and should be discountenanced."" 261 SPECIAL OBLIGATION OF MEMBERS ON BEING SWORN. The obligations devolved upon members of courts-martial on taking the oath prescribed by Art. 84 will be considered in Chapter XV. PERSONAL LIABILITY OF MEMBERS. The civil liability of members to persons aggrieved where the court has proceeded without jurisdiction or otherwise illegally, or has imposed an illegal punishment. Is a subject which will be considered in Pabt III of this work. As to liability to rmlitary arrest and charges — the fact that an officer has been detailed and is acting as a member of a court-martial exempts him, as already noticed, in no manner from either. Indeed, an officer who by the com- mission of a substantial military offence has made himself liable to arrest and trial should not be allowed to remain on court-martial duty. If it can be avoided, however, an officer should certainly not be placed in arrest while sit- ting upon the court as a member : the proceeding of arrest should be deferred till the close of the day's session or at least to a recess of the court. LIABILITY TO PERFORM OTHER DUTY WHILE MEMBERS. This subject, so far as respects the liabUlty to duty of members of general courts, assembled at the places at which they are stationed, is regulated by par. 1003, Army Regulations, (as amended by G. O. 9 of 1892.) This regulation makes them "liable to duty with their commands during the court's adjournment from day to day." " As to officers serving as members of courts at a distance from their proper stations, the general rule is that they are not to be regarded as subject to orders requiring them to perform other duty while they remain mem- bers. In an emergency indeed they may be so required; but in such a case the court will, in general, be dissolved or adjourned, or the member or members needed for different duties be relieved. AUTHORITY TO RECOMMEND TO CLEMENCY. This, which is the only personal, i. e. unofficial, authority which members of courts-martial may exercise in reiotion to the accused, will be considered in its proper order In con- nection with the subject of the Sentence, in Chapter JXX. M G. C. M. O. 142, Dept. of Dakota, 1881 ; Do. 49, Id., 1883 ; also Do. 71, Dept. of the Platte, 1890. " It Is added — " Courts-martial will, as far as practicable, hold their sessions so as least to interfere with, ordinary routine duties." And see on this subject G. O. 5, Dlv Pacific, 1868. CHAPTER XIII. THE JtrD&E ADVOCATE. 2K EARLY rSE OP THE TERM. The province of tbe. Judge Advo- cate, as now understood, appears to have first become defined in the British Articles of the seventeenth century.^ Originally known in the English law as " Judge-martial," or " -marshal," his prefix of " judge " appears to have been in part derived from the fact that, in addition to his functions as law officer and prosecutor, he was invested with a judicial capacity. Grose, in his " Mili- tary Antiquities," (1786,) writes— "The judge-marshal, by some styled auditor- general, and since called judge advocate, was an ofiicer skilled in the civil, municipal and martial laws : his office was to assist the marshal or general in doubtful cases ; " and he further shows how, in superintending the administra- tion of justice in the Army, the " judge-marshal " was himself enipowered 263 to " judge and give sentence " in certain cases." So, the Sohuitheiss of the early and the. Auditeur of the later German military law exercised a species of jurisdiction of their own ; the latter official named having a vote on the court." The mingling of the two capacities is indicated in the office, which appears to have existed in our colonial period, of " President Judge Advo- cate," to which, for example, Colonel Caleb Heathcote was appointed in 1770 by the Governor of New York. The designation of " judge advocate " is now, strictly, almost meaningless ; the judge advocate in our procedure being neither a judge, nor, properly speaking, an advocate, but a prosecuting officer with the added duty of legal adviser to the court, and a recorder. 1 See the " English Military Discipline " of James II, of 1686 ; also Articles of war of Charles II, of 1666. This officer is also mentioned In the original Mutiny Act of 1689. Grose, vol. I, p. 236, note, gives a form of a commission to the "Advocate of the army, employed in Africa," which is dated Oct. 12, 1661. 'Vol. 1, p. 235. Of the "judge-marshal" he adds, (citing Sir James 'Turner,) — " H'i ought to be a grave and judicious person who fears "God, and hates vice, especially bribery. A lawyer he should be, in regard most articles of war have their rise from law, and many cases chance to be avoided in courts of war, where no military article is clear, but must be determined by the civil law, or by the municipal law of the prince to whom the army belongs; and the judge-marshal's duty Is to inform the court what either of these laws provides in such cases. Some princes remit the whole justice of the army so absolutely to the judge-marshal that they give him power to punish soldiers who transgress public proclamations, of himself. • • • He may cause delinquents to be apprehended and send them to the regiments to which they belong, with direction to the colonels to call regiment courts of war. * » • All complaints, whether in matters civil or criminal, are to be brought before him ; and in many of them he hath power to give judgment himself, without any court, and In others he hath authority to oblige colonels to do justice. * * ♦ Differences among • camp-followers,' or that happen between any of them and the officers and soldiers, are brought before him, and In them all, after due examination of the whole fact and witnesses, he hath power to judge and give sentence," etc., etc. ^ ^ . „,, * tt a j 3 Von Molitor and other German authorities noted in Chapter V. And compare the provision, as to the "Advocate of the Army," in Art. 1, (Sec. VI,) of Charles I. Another View of tie term " Judge" appears to be that it was applied as substantially synonymous With Assessor; the Judge Advocate "^^^''l^'^^^^'^IT^' ^'* *« l^ capacity of a auasi judicial adviser. See Clode, M. L., 126, Id., 2 M. F., 363. 179 180 Mn.TTARY LAW ASD PEECEDBNTS. THE EZISTnro LAW. The statutes which relate to the appointment, daties, powers, &c., of judge advocates of American courts-martial are the 74th, 84th, 85th, 90th, and 113th of the Articles of war, Sees. 1202 and 1203, Revised Statutes, and the Act of July 27, 1892, c. 272, s. 2, 4. Some of the details of their employmait are regulated by pars. 984-986, 1008-1010, 1037-1039, 1041, 1046, 1047 and 1049 of the Army Regulations. Their function, however, is to a considerable extent determined by the usages of the service. These provisions and usages will be referred to in the course of this Chapter, the subject of which will be considered under the heads of: — ^I. The Appointment of the Judge Ad- vocate; II. His Authority and Duties. I. THE APPOINTMENT OP THE JUDGE ADVOCATE. THE EABLIER LAW OH" THE SXXBJECT— PBOVISION OP ABT. 90 AS AFEEGTED BY ABT. 74. The statutory law authorizing the detailing of 264 judge advocates was confused and uncertain till made clear by the Intro- duction in the revised code of 1874 of a new and simple provirfon — ^in Art. 74 — ^that, " Officers toho may appoint a court-martial shall 6e competent to appoint a judge advocate for the same." Prior to the revision, the statutory authority for the purpose was that expressed in Art. 69 of 1806, and repeated in the present Art. 90, as follows : "The Judge Advocate, or some person deputed by him^ or iy the general or officer commanding the army, detaohanent, or garrison, shall prosecute in the name of the United States." The original of this provision was the early British Article:* — ^"The Judge Advocate General, or some person deputed by him, shall prosecute in His Majesty's name." This, in our code of 1776, was expressed in precisely the same terms except that, in place of the last three words, was substituted — " the name of the United States of America." The succeeding Articles of 1786 prescribed that prosecutions before courts-martial should be conducted by " the Judge Advocate," (as the Judge Advocate General was indifterently styled in the Resolutions of Congress prior to the Constitution,") " or some person deputed by him, or by the general or ofBcer commanding the army," &c. After the adoption of the Constitution, the Act of March 3, 1797, in reorganizing the military establishment, and making provision for a single Brigadier General as the officer highest in rank In the army, provided further for a "Judge Ad- vocate." His office, however, was discontinued by the operation of the Act of March 16, 1802, by which it "was at the same time enacted that : — "Whenever a general court-martial shall be ordered, the President of the United States 265 m^ay appoint some fit person to act as judge advocate, * * * and in cases where the President shall not have made such appointment, the Brigadier General or president of the court may make the same." In the code of Articles of 1806, the provision of 1786 was re-enacted in Art. 69. But as there was at that date no "Judge Advocate" of the Army, this article did not substantially affect for the time the operation of the Act of 1802. * See Art. VI. of See. XV. of 1765, In Appendix. The practice indicated by this pro- vision appears to be etlll in a measure observed In the British procedure. Thns Lt. Col. Story writes, (1886,) — "At home," (i. e., in the TTnlted Kingdom,) "a deputy judge advocate is ordered to attend a general court-martial, by the Judge Advocate Oeneral who may. If he thinks fit, depute any qualified officer to officiate as deputy judge advo- cate at a trial. Abroad, the deputy judge advocate is appointed by the convening officer, the terms of his warrant giving him the authority." IS During the Bevolntionary War the most important prosecutions, such as those of Ma]. Gens. Arnold, Lee, Schuyla, and St. Clair, Col. Henley, Lt. Cols. Bnos and Zedwitz, and Major Andri, were conducted by Lt Col. Wm. Tudor or Col. John Lawrance as Judge Advocate CSeneial. ' MHilTABY LAW AISTD PBECEDEKTS. 181 Maltby' cites this Act as in force in 1813. O'Brien' and De Hart* refer to It as in operation at Oie dates of thrir treatises, January and August, 1846. As late as in 1840 we find a General Order,' (issued from Army Headquarters,) autboilzing the pre^dent of a general court to appoint the judge advocate. But meanwhile the specific officer designated in the Act as " the Brigadier General " had ceased to exist as such ; and in March, 1849, the office of Judge Advocate of the Army was revived by Congress." After this date the provision of 1802 became practically obsolete, the Articles of war being now treated as the source of the authority for the detailing of judge advocates for courts-martial. There were, however, no deputations of judge advocates ever made by the oflScer appoined Judge Advocate under the Act of 1849," and thenceforth the Jadge advocate was invariably detailed by the authority convening the court, vig. the President as Commander-in-chief, or the competent military commander. This usage, based apparently upon a liberal construction of the term " army " In the then Art. 69 as properly including the " department " command referred to in Art. 65," had prevailed to the date of the recent revision in 1874. Mean- while — ^it may be added — ^no deputations of judge advocates for general 266 courts were ever made by the Judge Advocate General, or by any officer of the corps of Judge Advocates of the Army created by the Act of 1862," and none have been made to the present time, although the provision of Art 69 of the code of 1806, authorizing such a deputing by the " Judge Advo- cate " has, as already indicated, been continued in Art. 90 of the present code, above dted. It Is thus perceived that, as heretofore remarked, the present Art. 74, which is at once a declaration and an enactment of a long-prevailing tisage, comprises in brief the existing law on the subject of the authority to appoint judge advo- cates for military courts ; the provision of Art. 90 being now quite unimportant and la part obsolete. C0NSTKT7CTI0IT OF AKT 74. The statute Is simple and easy of construc- tion. A few points, however, may be noticed under it — upon some of which express rulings have been made — as follows: 1. THE AUTICLE NOT ONLY AN ATTTHOBITT BUT A BEQIHSE- UENT. Considered by itself this article is simply an enabling statute, but considered In connection with Arts. 84 and 85, and especially the former, which prescribes the administering of the oath by the judge advocate to the members Of the court, it nrast be construed as a requirement, — as in substance enjoining « Page 123. ' Page 3S3. And see Id., p. 229. ■Page 807. •a O. 19 of 1840. » Ueantime certain " diTision " jndge ttdvocateg had been authorized by Acts of 1812, 1816 and 1818, and appointed, but their appointment did not materially modify the opera- tion of the existing law. The last of these temporary officers were done away with by an Act of June, 1821. "The author, haying discovered no such deputation of record, further verlfled the statement in the text by a personal reference to the officer himself, the late Major 3rohn V. I» G. O. 2 of 1868. And see an almost identical case in Q, C M. 0. 27, Navy Dept, 1882. MILITARY LAW AND PRECEDENTS. 183 4. EXTENT OF THE AtTTHOMTY. The authority conferred by the Article is not exhausted by the detailing of a judge advocate for the court at the outset. The judge advocate originally appointed may be prevented by illness from continuing the prosecution, or by reason of his promotion, or some exigency or incident of the service, other duties may properly be devolved upon bim. In any such case the officer by whom he was appointed, (or his successor in the command,) may relieve him and appoint another in his stead," and this pro- ceeding may If necessary be repeated.™ That the judge advocate car.aot relieve himself from any part of his duty need hardly be added.'^ 269 5. ELIGIBILITY EOR APPOINTMENT AS JUDGE ADVOCATE. There is nothing in the present Article or elsewhere In the code to pre- clude the employment of enlisted men as judge advocates f the usage of the service, however, has sanctioned the appointment as such of commissioned offi- cers only. Under the general terms of Art. 74, an ofQcer of any corps or branch of the service, whether of the line or stafE, may be detailed as a judge advocate. While judge advocates are more commonly selected from officers of the line, it is by no means unusual to detail staff officers as such at remote posts or where the command Is supplied with but a limited number of line officers. Under such circumstances, assistant surgeons especially have been thus employed," and the corps of post chaplains, (though its members are legally eligible therefor,) is the only one from which such details are not from time to time made. As already indicated, officers of the Judge Advocate General's Department of the Army are sometimes resorted to for the conduct of prosecutions of unusual im- portance. Nor does the rank of the officer affect his eligibility under the Article." A general officer may as legally he appointed a judge advocate as may a lieutenant. Except, however, in the rare cases in which the Judge Advocate General or a Deputy Judge Advocate General officiates, the rank of the officer detailed as judge advocate is not usually above that of major. 6. A CIVILIAN MAY BE APPOINTED. The Article simply authorizes the appointment of "a judge advocate," without specifying whether or 270 not he shall be a military person," and that he may legally be a civilian has been uniformly held."" In the British service the Judge Advocate General and Deputy Judge Advoc ate General, who formerly officiated at the » DiGBST, 456 ; Simmons § 532 ; Hough, (P.) 706-7 ; Clode, M. L., 126 ; O'Brien, 260. !" In a case pnblislied in G. O. 54, Dept. of the Bast, 1864, it is noted that three judge advocates officiated successively during the trial. On the other hand, the same officer may be appointed as judge advocate for a number of successive or different courts-martial, provided he be detailed anew in a separate order for &eh separate court. Digest, 296. "That the judge advocate cannot, even with the concurrence of the court, excuse himself from officiating — a point now too well established for discussion — was in sub- stance ruled at the trial of Gen. Wilkinson, in 1815, where the judge advocate having " begged leave, with the permission of the court, to decline " to undertake the responsi- bility devolved upon him, it was held by the court " that it was his duty to proceed with the trial." 22 The most recent recorded instance known of an enlisted man acting as judge advo- cate is that referred to in Joint Resolution, No. 20, of March 3, 1855, where Congress makes an extra allowance to a private soldier of a regiment of Tennessee Tolunteers empl(wed In the Seminole war, " in full satisfaction for his services as judge advocate in the regiment in said war." ""The practice of employing medical officers as judge advocates dates from an early period in our service. See cases in G. O. 14 of 1832 ; Do. 57 of 1822 ; Do. 62 of 1821. « A commissioned officer without rank, as a professor of the Military Academy, would be legally eligible. " So Art. 90 simply indicates him as " some person." "DlQEST, 457; De Hart, 99, 316; Ben«t, 244; Copp^e, 57. 184 Tvrrr.TTABY law and pbecedbnts. principal trials by court-martial within the kingdom, are civilian lawyers." Under the present Rules of Procedure" the judge advocate of a general court Is required merely to be " a fit person," and while he is in general an officer of the army, it Is recognized that he may be a civilian." In the American military service the judge advocates of coorts-martLal have from the beginning been, with few exceptions, officers of the army. The " division " judge advocates appointed under the Acts of 1812 and 1816 were civilians with major's pay, but these were superseded by military officers in 1818. In some of the earlier cases a "special judge advocate," who was a dviUan lawyer, was designated to act in connection with the regular judge advocate ; and in this capacity Hon. Martin Van Buren, (afterwards President of the United States,) was appointed for the trials of Brig. Gen. HuU In ISIS" and Maj. Gen. Wilkinson in 1815." Between 1818 and the period of the 271 late war," as also during the continuance of the war," the employment of civilians as judge advocates was of rare occurrence. In our naval service, on the contrary, the judge advocates officiating at trials within the United States were, in general, up to a recent period, counsellors at law." Since the passage, however, of the Act of June 22, 1870, by s. 17 of which, (now Sec. 189, Rev. Sts.,) was transferred to the Department of Justice the authority to employ counsel for the executive departments, neither the Secre- tary of the Navy nor the Secretary of War has been authorized to retain at the public expense a civiUan lawyer to act as judge advocate of a court-martlaL," Thus while the employment of a civilian in this capacity is as legal as ever, resort will rarely be had to one, and only in some important and difficult case requiring, for its efficient prosecution, special professional skill and experience. In such a case the Secretary of War, (or the Secretary of the Navy,) will prop- erly call upon the Attorney General, as the head of the Department of Justice, to employ a lawyer to act either as judge advocate, or preferably as counsel to assist the regular military (or naval) judge advocate in the conduct of the trial." "2 Clode, (M. B.) 362, 364; Hughes, 5; Gorham, 37; Jones, 63. The Judge Advo- cate General la a member of the existing Ministry and a Privy Councillor. See Man- ual, 198. Outside of Great Britain the officiating judge advocates were usually military ofScers. Hughes, 180; Jones, 64. At trials under martial law, civilians were not unfrequently selected; as at Eev. J. Smith's trial In Demesrara, 1823. Simmons (5 462, note,) states that — " On the trial of the Canadian rebels by martial law, in 1838 and 1839, three persons, one officer and two civilians, were ' jointly and severally ' appointed to the duty of judge advocate." =»See § 99. (A.) » Manual, 544. "Tor this trial there was also detailed a civilian as "Assistant Judge Advocate." "At a previous trial of WUklnson In 1811, Walter Jones, District Attorney for the District of Columbia, officiated as "acting judge advocate," without objection-; as also, as " judge advocate and recorder," on a still earlier court of inquiry in 1808. " By the Act of Feb. 18, 1832, «. 19, a specUl appropriation of thirty dollars ia made tor the services of a civilian named, as judge advocate on a certain trial "before a court-martial ordered by Gen. Wilkinson during the late war." "Two cases of distinguished civilians who acted as judge advocates at Important trials in 1865, are mentioned in the Digest, p. 457, note. " 18 Opins. 135. At foreign stations an officer of the navy has generally been detailed Harwood, 49. » This was expressly held by the Attorney General, in construing the Act In this r-nn nectlon. 13 Opins., 514 ; 14 Id., 13. " 18 Opins. 135. The employment of counsel to assist in the prosecution of mllitarv cases was more frequently resorted to formerly than later or since the organization In 1862, of a Jndge Advocate General's Department in the Army. See De Hart 818 ' In an early miUtary case referred to in 2 Journals of Congress, 413, " two counseUore leaned in the law" were appointed by Congress " to assist and cooperate with the Indite advo cate " at the trial. ' ^ °°^°' MILITAEY liAW AND PRECEDBlirTS. 185 IJUIT OF THE ATJTHOBITY OF APPOINTMENT. No person other than the official judge advocate can be detailed or can act as judge advocate. This— a point now beyond question, since the existing law clearly makes provi- sion tor but one judge advocate— was substantially held In 1814 in Maj. Gen. Wilkinson's case, In which, as already noticed, Martin Van Buren, then 272 a civlllan lawyer, was appointed to act as " special judge advocate " In addition to the "army judge advocate." The accused having objected In writing to his appearing in the case, it was ruled by the court that he could not legally do so, and he retired. This action is the more marked for the reason that he had acted in a similar capacity on the trial of Brig. Gen. Hull In the preceding year, and without objection. In a case tried during the late war In which the proceedings were authenticated only by an officer designated as "assistant judge advocate," it was held by the reviewing authority that a sentence certified by such an officer could not be executed, and the proceedings were disapproved." But the rule under consideration does not preclude the detailing of other officers to assist the judge advocate in an important case," or the employment of legal counsel for the same purpose, since such assistants are not thus Invested with any of the legal functions of judge advocates. PEBSONAX QUAMPICATIONS FOR THE APPOINTMENT— 1. Pit- ness — t. e., a proper training and aptitude for the office. As It Is expressed in the act of 1802, heretofore cited, the judge advocate should be a "fit per- son."" This officer has been styled by McArthur" "the prirrmm moMle;" by Adye" "the mainspring of a court-martial." "If he errs," adds the latter VTTlter, "all may go wrong;" or, as It is quaintly expressed by Napier," unless courts-martial have a properly instructed judge advocate, " tJiey must assemble In bodily fear." " The question Of fitness is of course a relative one. While an officer may readily make himself familiar with the routine of the prosecu- tion of a brief and simple trial, a special training and a considerable 273 share of legal knowledge are required properly to qualify a military man to exercise with skill and completeness the function of judge advocate In a case of real difficulty and importance." To be prepared to meet all the Issues that may be raised, and duly to perform all the other duties that may be devolved upon him as judge advocate, In such a case, an officer should be edu- cated not only In the science of the military law, — including the statutory law, regulations, orders and customs, pertaining to the offenses of military persons and their prosecution, trial and punishment, — ^but also in the general criminal law and its practice and procedure, as well as in that most essential branch of legal learning, the general law of evidence." 2. Absence of Bias. As a judge advocate is not subject to challenge. It is Important that an officer strongly prejudiced for or against the accused, " G. O. 29, Dept. of the N. West, 1863. *■ On the trial, in 1865, of Payne, Herold and others, (as conspirators in the assassi- nation of President Lincoln,) and upon that of Wirz in the same year, by military com- mission, the judge advocate was assisted In the former case by two officers, and In the latter by one, Bpedally detailed for the purpose. "The same term Is used In the present British law. Hules of Procedure, (A.) "Vol. 2. p. 279. «Page 113. "Page 114. " That l8 to say, " fear " lest by some error they may be exposed to suit or pToaecn- tlon. ** " His qualifications of course must be of the sort required by members of the bar." 18 Opins. At. Gen., 137. "On the subject of the qualifications of a judge advocate, compare Hughes, pp. 9-19, 178, et. teg. And see Grose, Vol. I, p. 235, cited ante, p. 179. 186 MILITARY LAW AND PRECEDENTS. or who has a decided personal interest in the result of the trial, should not be selected as the judge advocate if it can be avoided. Thus, one interested In the conviction of an accused oflScer, for the reason that, in the event of a dis- missal, he will become entitled to promotion, will not be a desirable person to be detailed as judge advocate for the trial, if any other suitable officer can be appointed without detriment to the service." So, one personally inimical to the accused, or seriously at variance with him, is not a suitable person to act as his prosecutor. Where an officer appointed judge advocate is eon- 274 scious of any such prepossession, bias, or interest as may materially affect the efficient, fair or courteous performance of his duty, he will properly communicate the facts, in a respectful manner, to the appointing authority, and ask to be relieved." But prejudice or Interest, however conspicuous or con- trolling, on the part of the judge advocate, cannot of course impair the legal validity of the proceedings. XL HIS AUTHORITY AND DUTIES. This subject wiU be considered under the heads of: The authority and duty of the judge advocate — (1) Prior to the meeting of the court; (2) Pending the proceedings and trial; and (3) After the completion of the proceedings. .276 AtJTHOBITT AND DUTY OF THE JUDOE ADVOCATE PBIOB TO THE MEETING OP THE COUBT. AS TO PBEFARING OB PERFECTING THE CHABGES. While in the ordinary criminal procedure the indictment is almost invariably framed by the prosecuting attorney, — in the miUtary service, where any officer may prefer "In G. CM. 0. 5, War Dept. 1871, In. connection with the action of the President upon the case of a Captain of the army, it was remarlced as follows : " In his review of this case, the Judge Advocate General calls attention to the fact that the Judge Advocate of the Court was not only a material witness for the prosecution, but, as senior first Lieutenant In the same regiment with accused, was the expectant of promotion to the next vacancy in the grade of Captain. In view of this fact, while there Is no ground for doubting that the officer charged with this duty performed it with honest and pure intention, yet certainly his selection for It was unsuitable, inasmuch as by military law and usage it bas always been held that the Judge Advocate should be free from personal bias or interest in the result of the proceedings in which he officiates." " In G. C. M. O. 41 of 1875, in a case of a soldier tried upon a charge of having made a. false complaint that an officer had improperly assaulted him, which officer was judge advocate of the court and prosecuting witness. It was remarked as follows : " It was not contemplated that a prisoner would be brought to trial before this Court on charges which raised the question whether Its Judge Advocate had not himself been guilty of offi- cial misconduct. But such was the fact in this case. The Judge Advocate had a per- sonal Interest In the conviction of the prisoner, and was also the priucipal witness against him. tinder such circumstances be should have applied to the proper authority to be relieved from duty as Judge Advocate. The proceedings are disapproved." In a case published in G. C. M. O. 18 of 1886, the attitude of the judge advocate is commented upon by the President as follows — " The judge advocate was manifestly disqualified and Incapable of properly discharging his duties of judge advocate because of the inter- est which he took in the conviction of the accused. For this reason he should have requested relief from a duty which he could not perform in justice to himself, the ac- cused, and the service." In a later case promulgated in G. C. M. O. 1, Div. of the Mo. 1890, reference is made to the officiating by an officer as judge advocate on the trial of a soldier, whom he had himself abused and assaulted, as follows — " Lieut. S. committed an unfortunate mistake in acting as prosecutor on the trial of a soldier with whom he had had a personal difficulty. • » • Although the judge advocate of a court-mar- tial is not one of the judges who try the cause, and although there is no provision of law for the challenge of a judge advocate by the accused, yet a nice sense of propriety and due appreciation of self-interest should suggest to an officer the wisdom of request- ing to be excused from the duty of prosecutor under such circumstances. Such a request would of course be respected by the cominanding general who appointed the courti" MILITARY LAW AND PRECEDENTS. 187 charges, the Judge advocate of the court has a comparatively limited control over the form? of the charges and specifications. He has no original authority, virtute offlcii, to entertain charges In the first instance, but can simply act upon such as are transmitted to him to prosecute. In the absence, therefore, of gen- eral instructions or specific authority for the purpose from the superior by whom he has been appointed, he cannot.'as a general rule, make any material amendments In the pleadings as committed to him." In some instances indeed, where the court was convened for the trial of enlisted men for light or simple offences, the papers have been transmitted and witnesses referred to the judge advocate, with instructions to frame, serve, and prosecute formal charges In the several cases, as the proofs may appear to warrant." But in general, and especially in the more important class of cases, the charges will, regujarly, have been prepared by the Immediate commander of the accused or the origi- nal accuser, and revised by the Commander who is to convene the court, or the officer of the Judge Advocate General's Department or Acting Judge Advo- cate on his staff, -or by the Judge Advocate General, before they reach the judge advocate of the court. In such cases, while the judge advocate may correct obvious errors of form and mistakes in names, dates, amounts, &c., known to him, from having communicated with the witnesses or other- 276 wise, to be incorrect,*" he cannot properly venture upon material amend- ments of substance, and certainly cannot assume of his own authority to reject any charge or specification, or to add a new one." Where indeed the Judge advocate of the court is an oflScer in whom a special confidence is re- posed, as where he is the Judge Advocate or Acting Judge Advocate of- the Department, &c., he may assume a larger discretion In the matter of amend- ing the charges before trial, especially where he has already had to do with their preparation or revision. But in general, in the absence of some special authority or direction from the convening commander, the charges should re- main substantially intact in the hands of the Judge advocate, who should con- sider himself simply as a subordinate under orders to perform a particular duty, viz. to prosecute the particular charges committed to him by his superior. Where, from the testimony as personally examined by him, he is of opinion that a charge should be laid under a different Article from that selected, or that an additional charge or specification should be preferred, or other mate- rial change in the pleadings should be made, it will be proper for him to com- « Digest, 458; O'Brien, 235; G. C. M. 0. 42, Dept of the Platte, 1877; Do. 7, Dept ol Texas, 1882 ; Do. 9, Dept. of Arizona, 1884. »TlUs was sometimes done during the late war, but, as a practice, belongs rather to the past, and to the period before department, &c., commands were furnished with staff judge advocates. In some of the old Orders the judge advocate was spedflcally directed to prepare the charges after conference with the original accuser, who had not duly formulated the same. See instances in 6. 0. of Aug. 10, 1819, and Sept. 7, 1820. "See G. O. 25, 36, Dept. of the Mo., 1867; Do. 11, Dept. of the Gulf, 1865;' Do. 64, Dept. of Ark., 1865 ; Do. 17, Dfept. of Pla., 1866, Do. 26, 29, Dept. of La., 1868 ; Do. 35, Fifth Mil. Dist., 1868. A larger authority, however, is attributed to the judge advocate in some of these Orders than would be quite warranted in time of peace. In G. C. M. O. 17, Dept. of the Colorado, 1894, it was held that the judge advocate, after having conferred with the witnesses, was justified in mailing the charge, erroneously expr^sed in the alternative, more certain, by striking out matter which was merely sur- plusage. »i Digest, 458; G. O. 3, Div. Atlantic, 1876. That he cannot do this even with the concurrence of the court Is remarked in G. C. M. O. 36, Dept, of the Platte, 1877. 188 MHilTAKY LAW AMD PKECEDENTS. munlcate the fiicts and his views to the Commancler by whom he has been detailed, and await his instructions." AS TO SEBVING THE CHAB.GES, &C. The subject of the service of charges has already been considered In treating of the Charge. The service of the charges is a duty usually devolving upon the judge advocate, and should be performed as soon as practicable after the charges have been per- 277 fected, or within a reasonable time before the trial. A list of the wit- nesses for the prosecution will properly accompany the charges. The accused will also properly be suppUed with a copy of the Order detailing tlie court, so that he may have a reasonable opportunity to consider whether he will interpose challenges to any of the members. Where the Order does not specify the time or place of the particular trial, the judge advocate should notlftr the accused of the same. He should also promptly furnish him with copies of amended or " additional " charges or specifications, if any such are introduced. AS TO SUMMONING, &C., THE WITNESSES. It is directed by par. 1008 of the Army Regulations that the judge advocate " summon the necessary witnesses for the trial ;" and, ia order that the trial may not be delayed. It is in general his duty at this stage of the proceedings to summon the material witnesses, both those required for the prosecution "' and those whose names are furnished him by the accused, who is entitled to have summoned for him his material witnesses." If papers in the possession of a witness are required to be used in evidence, the judge advocate will issue to him a subpoena dtices tecum, specifying the particular writings. Where any witnesses are so distant, or otherwise situated or occupied, tliat their personal attaidance cannot probably be procured without extraordinary expense, or embarrassment to the service, he will properly submit to the convening authority the question whether they shall be summoned to appear in person or required to give their depositions. If directed to procure their depositions, he will proceed to do so by preparing 278 in concert with the accused the necessary interrogatories and forwarding the same through the proper channels, subject to the provisions of the 91st Article of war." Where not satisfied as to the materiality of a proposed wit- ness, or where the testimony of such a witness wiU be merely cumulative, he " " It is a part of the duty of an officiating Judge advocate to represent to the offi- cer convening the court any error or omission in the charge, and thereby to anticipate or obviate any delay in the assembly of the court." Simmons § 414. And see De Hart, 313; 6. O. 30, Dept. of the Mo., 1867. It is a part of his duty not to go to trial upon a defective indictment, (G. O. 11, Dept. of the Gulf, 1865 ; Do. 29, Dept. of Iia., 1868,) if the defect can be duly corrected. "That it Is, in general, the duly of the judge advocate, though it may not always be necessary, to summon, (and call to testify on the trial,) the witnesses whose names have heen appended to the charges — see G. C. M. O. 135, Dept. of Dalcota, 1882 ; Do 45, Id., 1884. In Circ. No. 9, (H. A.), 1887, the point Is noticed that the judge advocate can only «u&- poena a witness to attend the court. He cannot issue a subpoena to a witness to appear before himself for examination. This must be effected by an order emanating from the proper superior, as the post commander. "G. C. M. O. 4, Div. of Atlantic, 1886. No persons, (except perhaps foreign ministers— see Com. Wilkes' Trial, p. 79,) can be said to be legally exempt from being summoned as witnesses on military trials. High public officials, however, will not prop- erly be summoned where their attendance can be dispensed with without seriong prelu- dice to the administration of justice. »» As to the law In regard to depositions in military cases, and their form see Chapter XVIII., and Appendix. The time and expense of summoning a particular witness or witnesses may sometimes be saved by the judge advocate and accused entering into a written stipulaUon that certain specified facts shall be considered as admitted in the case. See example In Lieut. Devlin's case. Printed Trial, p. 12. MILITARY LAW AND PRECEDENTS. 189 may omit or decline to summon him till requested or Instructed to do so by the court or the commander." AVhere the accused desires the attendance of a wit- ness whom the judge advocate does not think it worth while to summon, the latter may well offer to admit in writing at the trial that the person, if present, would testify thus and so. Forms of subpoenas for witnesses, to be Issued by the judge advocate, are given In the Appendix. Service of summons. If the witness is at or near the place of trial, or station of the Judge advocate, he may be personally summoned by the latter, or by any other officer or individual for him." If he Is at a greater distance, a subpoena, or application for hia attendance, should generally be forwarded by the judge advocate "through the regular military channels,"" to the proper headquai-ters, in order that the proper orders may be made for Ms attendance, transportation, &c. The judge advocate should always cause a eMUan witness to be personaUv served : this to fadUtate the compelling of his attendance by attachment under Sec. 1202, Rev. gts., if found necessary. A personal service will be made either by exhibiting to the witness the original subpoena and caus- ing or enabling him to become informed of Its contents, or — and preferably — by delivering to him a copy." The individual making the personal service will properly be instructed by the judge advocate to certify the fact, 279 date and place of service on the back of the original" and thereupon return the same to him. Witnesses, on arriving at the place of trial, should report forthwith to the judge advocate. AS TO PREPARING THE CASE FOR TRIAL. The further duty is de- volved upon the judge advocate of assuring himself, before going to trial, that the proper evidence is available, and is sufficient to establish the charge." In this connection, it may sometimes be desirable for him to take affidavits, and for the administering of oaths in such cases he is now expressly authorized by the Act of July 27, 1890. In several instances, judge advocates have been severely censured in General Orders for proceeding with the prosecution with- out duly preparing their cases, or informing themselves whether the witnesses proposed to be called could establish the facts alleged in the specifications. If, after personally examining the witnesses, &c., a judge advocate concludes that he cannot make out a prima facie case upon the charges referred to him for prosecution, he should, if there is time, communicate the fact to the convening authority and ask instructions. A judge advocate entrusted with the conduct of an important prosecution will also, before the trial, look carefully Into such points of law — especially questions in the law of evidence — as are likely to arise In the case, and pre- pare himself by study for presenting or contesting the same. AS TO OTHER PARTICULARS. It devolves upon the judge advocate to make a requisition upon the quartermaster for the proper stationery for his own ■" See par. 1008, A. B. "In order to avoid possible expense, a military person should, if practicable, be em- ployed to make the service. G. O. 34, Dept. of the Platte, 1870. •» See par. 1010, A. B. " 1 Oreenl. Ev. S 315, note. "'See form in Appendix. " See the remarks of the reviewing officers in O. O. 63, Dept. of the Bast, 1864 ; Do. 36, Dept of the Mo., 1867. Tytler, (p. 358,) writes: "The Judge advocate must in- struct himself In all the circumstances of the case, and by what evidence the whole par- ticulars are to be proved against the prisoner. Of these It is proper that he should pre- pare In writing a short analysis or plan for his own regulation in the conduct of the trial and examination of the witnesses." This last suggestion is repeated by subsequent writers. 190 MILITABY LAW AND PKEOEDENTS. use and that of the court at the trial or trials to be had, as also for a room or rooms, or other quarters in which to assemble, (withthenecessary furniture, fuel, &C.,) if such have not already been provided. _At most established posts, such a room is Set apart He will also properly apply to the assistant adjutant 280 general, post adjutant, &c., for an orderly or orderlies, as may be required. If he does not exercise his statutory authority of appointing a reporter,'* (or, In a case of unusual importance, though a reporter be actually appointed,) he may employ, at his own expense, a civilian clerk, or may apply to the proper official for an enlisted man to be ordered to report to him for duty as clerk. If an intwpreter is necessary, he will take measures to obtain one — ^generally W summoning as a witness a person competent for the purpose." Where the charges or specifications are unusually numerous or extended, the judge advocate may well have the same printed, if practicable, for the convenience of the court upon its assembling and for reference during the trial, as also to facilitate the making up of the record. AtrtHOBITT AND DtJTY OF THE JUDGE ADVOCATE PENDING THE PeOCEEDINGS AND Tbial. THIS CAPACITY IN GENEBAI*. "The presence and assistance of an officiating judge advocate," observes Simmons," " is essential to the jurisdiction of a court-martial." O'Brien " writes : "A court-martial cannot proceed to any business without that officer." Neither is strictly accurate. But while it is not necessary, (though certainly highly desirable and almost Invariable,) ttiat the judge advocate should be present at such preliminary action as a court may take after its first assembling and prior to the appearance of the accused, it is clear that the court cannot enter upon the trial without hitti, since, by Art. 84, he must first qualify them by administering " to each member " the prescribed oath. So, pending the trial, Ms presence, though it may not always be essential, cannot properly be dispensed with during any material proceeding." 281 It was observed by Kennedy,"* (who has here been repeated by later writers,) that a judge advocate "appears at a court-martial in Oiree distinct characters," those of Prosecutor, Adviser to the Court, and Kecorder; in the last of which only, the author adds, Is he subject to the direction or control of the court ; bfeing authorized In the other two "to act according to his own judgment and discretion," Except that he cannot properly obtrude advice, this statement Is substantially correct. With these principal capacities of the judge advocate are also to be con- sidered, as attaching at this stage to his office under our law, his province as counsel or adviser of the accused, and his authority and duty under Art. 85 and under Sees. 1202 and 1203, Rev; Sts. AS PROSECTTTOB. — ^Legal status in general. From an early period in the British law till 1860, the judge advocate acted as prosecutor in the name °* As to tbe exercise of this authority, see po«f . " As to clerks, interpreters, oiderlies, &c., see Chapter XI. 00 § 462. "Page 229. "« A judge advocate may indeed temporarily absent himself and resume his place without affecting the validity of the proceedings; (Clode, M. L., 126; Bengt, 86;) though this " mars their unity," (Coppfie, 60,) and, where necessitated for any longer than a very brief period, should induce a suspension of the proceedings, for the time, by the court, DiSBST, 460. o»Page 222. As to the change, later, in regard to the capacity of prosecutor in tlie British law, see post. MILITABY LAW AND PBECEDBNTS. 191 Of the Sovereign before general courts-mardal." But that he should sustain this character, while at the same time acting as official adviser to the court, was viewed by some of the authorities" as unjust to the accused and inex- pedient, and in 1860 it was expressly prescribed in one of the Articles of war that he " should no longer be the prosecutor." " A provision to the same effect is contained in the present Army Act." In the British practice the prosecutor is now a separate official, quite distinct from the judge advocate." He is appointed by the convening authority, " who, in the trial of a soldier, ordinarily selects the adjutant of the prisoner's regiment." " In our law the judge advocate has from the beginning acted as the public prose- cutor in military cases. In the articles of 1776," it was enacted that the officer officiating as judge advocate should "prosecute in the name of the United 282 States of America," and a provision to the same effect has been repeated in the code to the present time. No such agency as a "private prose- cutor " is known to our law. In practice, the accuser or " prosecuting witness " is often allowed to remain in court, to enable the judge advdcate to confer with him during the trial, but the law does not recognize him as having any official part in the prosecution of the charges. As sole prosecutor, the judge advocate, with us, practically conducts the trial— a function which in the British," and more conspicuously in the French " law, is substantially devolved upon the president. In the American law, the judge advocate arraigns the prisoner; swears and examines the witnesses and cross- examines those of the defence ; takes exceptions to pleas or testimony offered- on the part of the accused, or to applications or propositions made by or for him to the court which he deems inadmissible or objectionable ; enters into such stipu- lations and makes such admissions in regard to testimony, &c., as he may deem expedient ;" and argues all exceptions taken and issues raised — in the name and as the representative of the United States. So, like the prosecuting attorney in the ordinary criminal courts, he presents, (or may present,) the closing argu- ment on behalf of the Government." 283 Direction as to the course and conduct of the prosecution. As prosecutor, the judge advocate, representing as he does the State, and acting under an authority Identical with or equal to that of the court, should, as "> Tytler, 208, 349 ; Adye, 115, llft-120 ; Samuel, 619 ; Clode, M. L., 116. 1 Napier, 113 ! Warren, 10, 229, 232-8, 253. » See Simmons § 472 ; Clode, M. L., 125. n§ 50. (3.^ '* Story, Summary of Military Law, 65. ™ Manual, 596 ; Story, 65. " No judge advocate was provided for In tlie original code of 1776. "See Simmons § 430; 2 Clode, M; F., 364, note. " See Alia, 216-221, 257-269. At the French conaeils de guerre the examination of the witnesses is in general conducted by the president. In important cases, (as at Marshal Bazalne's trial,) the counsel for the accused has been' allowed, by courtesy, to add questions. " In a case In which the court instructed the judge advocate to inform the accused that it admitted all he proposed to prove by a certain witness, this action was disapproved as beyond the province of the court; the Judge tidvocate, not the court, being the prose- cutor. G. C. M. O. 59, Dept. of the Platte, 1872. So, as Illustrating the general subject, may be noticed here the remark of the reviewing authority in 6. C. M, O. 66, Dept. of the Mo., 1873, that " the court had no authority to instruct the judge advocate whether a certain case should be prosecuted or not, the prosecution being a duty devolving solely upon the judge advocate, for which he is answerable to the convening commander." ^ He may make an argument whether the accused does or not. 6, C. M. O, 11 of 1872, Or he may decline argument; as did the judge advocate, (Judge Advocate General Holt,) on Gen. F. J. Porter's trial, for the expressed reason that the exigencies of the existing war did not justify bis taking up the requisite time, Printed Trial, p. 218. 192 BraJTAEY LAW AND PBECEDEKTS. a general rale, be regarded as independent of the court," and therefore as em- powered, in the absence of special instructions oil the subject from the convening officer, to conduct the prosecution in such mode or upon such plan as may appear to himself most advantageous. Even in the British practice, as it Is observed by Simmons," he " is usually permitted to adduce his evidence in the order he may think fit." And in our service, vsrhere he Is made prosecutor by express statute, he should in general be deemed entitled to the same privilege which Is uniformly accorded to prosecuting attorneys in the criminal courts, of presenting such evi- dence In support of the charge as he may judge to be requisite or desirable and of presenting it in the form which he may consider most effective, of feSo^ns such testimony for the rebuttal as he may regard not so pertinent to the direct examination, and of preserving throughout the logical sequence determined upon by him, in preparing the case, as according with the progressive stages of the history of the offence." But while thus entitled in general to be left free as to the form of the presentation of his proofs, it is of course incumbent upon the judge advocate, as prosecutor, "to lay before the court the fuU particulars"" of Oie offences charged. And the only safe rule for him is to put in aU the material 284 testimony that Is available, and not merely cumulative." The court is sworn to " try and determine " the matter before it, and it cannot do so unless placed in possession of all tiie facts. Thus the court may properly inti- mate to an Inexperienced or careless judge advocate that he has omitted to prove a material allegation in a specification, or to evoke a material circum- stance from a witness before the court, or to introduce a material witness whom it desires to have called. On the other hand, it may check an over-zealous judge advocate who is proving too much by needlessly putting in cumulative testimony or otherwise imreasonably protracting the investigation. Authority as to entry of nolle prosequi. It Is clear that this authority, that la to say the authority to withdraw a particular charge or speciflcation from the consideration of the court, cannot belong to the judge advocate as prosecutor, his duty as such being simply to prosecute the charges committed to lilm, without addition or subtraction. Of his own motion, and in the absence of authority from the commander, (for the court cannot supply it,") he can no « See Kennedy, 222 ; Hughes, 111. "I 671. "In the leading naval case of Capt Barron, (Printed Trial, 131-2,) the court made a general ruling as follows : — " The order in which the testimony on the part of the prosecu- tion, cither verbal or written, shall be exhibited before the court is a subject resting altogether In the discretion • • • of the judge advocate. The court will exercise no control over It, but will hear everything which they ought to hear, and In any order In which It may be thought proper to exhibit it." And see later cases to a similar effect in 6. C. M. O. 97, Dept. of Dakota, 1878 ; Do. 38, Dept. of Texas, 1878 ; and compare, as to the clvU practice, 1 Burr's Trial, 85, 469 ; Davany v. Coon, 45 Miss. 71. "Hughes, 118. And see G. C. M. O. 6, Dept. of Arizona, 1888; also G. O. 53 ol 1824, where the President censures a Judge advocate for not producing the proper wit- nesses, who were apparently readily available, to prove the charge. «• See G. C. M. O. 36, Dept of Texas, 1893. " G. C. M. O. 84 of 1887 ; Do. 23, Dept. of Dakota, 1886 ; Do. 6, Dept. of Arizona, 1886; Do. 68, Id., 1887. Especially is the court not empowered to authorize a nolle prosequi where the accused has been arraigned upon and has pleaded to the charges, since then, (in the absence of a legal withdrawal — see Chapter X,) he Is entitled to a verdict, and the proper course for the court Is to acquit upon the charge or specifica- tion In question. Q. C. M. O. 29, Dept. of the Mo., 1886. The nature of the procedure of Nolle Prosequi Is considered In Chapter XV. MILITARY LAW AND PBECBDENTS. 193 more withdraw a charge after arraignment than he can drop one before:" shoold he venture unauthorized to do so— for whatever reason, whether because of a defect in the charge itself, or of a deficiency of evidence to support it, or otherwise— he would be guilty of a military offence. If he is of opinion 285 that a charge or specification should be nol pressed, and no authority for the purpose has been imparted in advance, he should apply for the same to headquarters, the court, (if concurring,) meanwhile adjourning over if necessary." Duty as a minister of justice. It was remarked by the judge in a late case in the Central Criminal Court of London,'* that it is " a general principle of criminal procedure that counsel for the prosecution should consider them- selves not merely as advocates but as ministers of justice, and not as struggling for a verdict but as assistants in the ascertainment of truth according to law." Similarly, in a leading criminal case in Michigan," the court observe: — "A public prosecutor is not a plaintiffs attorney, but a sworn minister of justice, as much bound to protect the innocent as to pursue the guilty." So, O'Brien " says of Gie judge advocate : — " He is to use no undue means to secure the conviction rather than the acquittal of the accused." In other words, while he is not "to permit the interests of the public to suffer,"" by failing to prosecute "with spirit and resolution,"" he is to remember that It is not Incompatible but consonant with his capacity as prosecutor to be so far impar- tial as not only not to obstruct but to facilitate the accused in making such defence or offering such matter of extenuation as may exist in the case." It is in view of this principle that it has been held by certain courts, both In England and the United States," that the prosecuting officer. In presenting his case, is not at liberty to select those witnesses only whose testimony vyill conduce to a conviction, leaving the accused to offer the rest, but that it 286 Is incumbent upon him to introduce all the witnesses present at the commls^on of the act charged or cognizant of the same, if attainable, before the accused is called upon for his defence. Thus it is held in one case:" — ^"All the facts constituting the res gestm, so far as the prosecuting counsel is informed of and has the means of proving them, should, on principle and in fairness to the prisoner, be laid before the jury by the prosecution." And in a later case " it is remarked : — " The only legitimate object of the prosecution is to show the whole transaction as it was, whether its tendency is to establish guilt or innocence. The prosecuting officer represents the public " "After charges have been properly referred to a court for trial, none save the con- vening authority, or the Secretary of War, can order a nolle prosequi to lie entered." 6. O. 98, Dept. of the Cumljerland, 1868, (Gen. Thomas.) And see Do. 97, Dept. of No. Ca., 1865 ; Do. 85, Dept. of the South, 1874 ; G. C. M. O. 79, Dept. of the Platte, 1877 ; Do. 13, Id., 1878 ; Do. 45, 48, Div. Pacific and Dept. of Cal., 1880 : also Do. 84, (A. G. O.), 1887; Do. 73, Dept. of the Platte, 1887. •"G. C. M. O. 14, Dept of Cal., 1883. »» Regina v. Berens, 4 P. & P., 842. « Wellar v. People, 36 Mich. 23. " Page 284. »^ De Hart, 323. «Adye, 119. °* See De Hart, 323. " The danger in most cases is that, as prosecutor, he is inclined to be too severe upon the accused, to accept his guilt as a foregone conclusion, and rather to aim to prove it than simply, as is his sole duty, to exhaust all the evidence pro and oon, and let that determine the guilt or innocence of the accused." Copp^e, 60. And Ke tbe sobject of "Absence of bias," cmfe. "Beslna v. Bolden, 8 C. & P., 606; Regina v. Stroner, 1 C. & K, 66Q; Maber v. People. 10 Uleh, 226-6 ; Hurd v. People, 25 Mich., 416 ; Wellar v. People, 30 Mich., 16. "Maker V. viai/liB, ante. "Hnrd t>. People, ante. 440593 O - 42 - 13 194 MHJTAKY LAW A2fD PBECEDENTS. interest, which can never be promoted by the conviction of the innocent. His ob- ject, Uke that of the court, should be simply justice, and he has no right to sacri- fice this to any pride of professional success." In the opinion of the author, this rule, though not followed by some other authorities who " regard it as properly within the discretion of the prosecuting officer to produce such witnesses and such only as he thinks best,"" is believed especially to commend itself to adoption in the court-martial practice, and particularly in cases of enUsted men, and of officers undefended by competent counsel." AS ADVISES TO THE COXTRT, AND IN HIS BEI/ATION TO THE SAME. ^His duty in general. As already noticed, one of the three prin- cipal functions assigned to the judge advocate of a court-martial is that of " adviser to the court In matters of form and law." '" In this capacity a two- fold duty Is devolved upon this officer : 1. He is bound to furnish his opinion on any question of law, practice, or pro- cedure, arising in the course of the trial, when the same is required of him 287 by the court' It is the right of the court to call upon him for such advice and assistance, but if the preparation of the opinion demands unusual labor, the court will properly adjourn to give him time to consult, the authorities, &c. In general the opinion of a competent judge advocate, thus furnished, wiU be accepted as decisive by the court" But even if wholly dissented from and in no respect followed, the judge advocate is entitled, for his own justification, and not by way of protest but as a part of the proceedings, to have such opinion Incor- porated in the written record : it should also be so recorded for the information of the reviewing authority.* 2. While it will be Irregular for the judge advocate, except when his opinion is thus asked, to interpose his views in regard to any question which it is within the province and discretion of the court to determine, yet if the action proposed by it to be taken upon such a question will clearly transcend some statute, regulation, order or usage, or an established principle of law, it will then be his duty to point out the fact. In other words, where the error of the court is simply one of judgment, the judge advocate, though, in his opinion, such error may work injustice in the case, should remain silent : otherwise where the action, if taken, will manifestly contravene an article of war or other law of the service, or legal principle properly governing the procedure of courts-martial, — ^here he is au- thorized, and it is indeed his duty, respectfully to caution the court against the apprehended illegality.* •• See 1 Bishop", C. P. § 966 c. » See remarks of Lord Brougham In Parliament, as cited by Clode, 2 M. F, 363-4. There Is here to be noted, as a further branch of Mb function as prosecutor, the duty derolvlng upon the Judge Advocate, under par. 1018, A. Ev, to furnish the court in proper eases with evidence of previous convictions of the accused. If any. «» Kennedy, 222. » See TyUer, 352-355 ; Simmons S 466 ; Kennedy, 224-5 ; Stocqueler, 113 ; Hughes, 120 ; Hickman, 137 ; XIV. Law Mag., 13 ; Maltby, 121-2 ! O'Brien, 283, De Hart. 325 ; Ben«, 201; Coppfe, 57. ' See Simmons S 470 ; Kennedy, 228 ; Hughes, 127. Note the special consequence at- tached to the advice and opinion of the judge advocate In the British law by the Rules of Procedure, 8 101 (F,) explained In the same Rule by the declaration that "at a court-martial, he represents the judge advocate general." •Tytler, 354-5; Hough, (A.) 71-2; Kennedy, 22ft-7; XIV Law Mag 14- Hughes 123-128 ; Maltby, 122 ; O'Brien, 283 ; De Hart, 324-fl. Contra. Simmons s" 496 'and note! m Q. O. 5 of 1857, the Secretary of War remarks :— " The court refused to admit on their record an argument of the Judge advocate, objecting to an appUcatlon by the defence for delay. It was the duty of the Jmdge advocate to make the objection, and the argument by which he sustained it was very proper. It was a part of the proceedings which ought to have been entered on the record." And see G. O. 17, Dept of Florida, 1860 ; Do. 60 Dept. of La., 1869. ' ' ' Bee Ben^t, 201 ; O'Brien, 288 ; De Hart, 326. MILITARY LAW AND PRKOEDENTS. 195 HIS ATTITTTDE WHEN THE COUBT IS CLOSED. Up to a recent 288 date the judge advocate Invariably remained, as an assessor, with the court when closed for deliberation, advising it if required to do so, and calling attention to formal errors if any,' but carefully refraining from any expression of opinion that might influence the votes of the members.' But however scrupulous he might be In this regard, the accused had certainly good ground for complaining that he was excluded while the judge advocate was admitted at so Important a stage of the proceedings," and the apparent un- fairness of the practice not unfrequently evoked serious criticism.' But now, by the Act of July 27, 1892, c. 273, s. 2, it has been speclflcally prescribed on this subject as follows: — "Whenever a court-martial shall sit in closed ses- sion, the judge -advocate shall toithdraw, and when his legal advice, or his assistance in referring to recorded evidence, is required, it shall be obtained in open court." Under this statute the judge advocate now retires from the court room, (with the accused, &c.,) whenever the court clears for deliberation, either on the finding and sentence,' or' upon any interlocutory matter such as a challenge, an objection to evidence, &c; And hereafter when a question arises, in closed session, as to which" the opinion of the judge advocate 289 is desired, the court must be re-opened, and such opinion sought and rendered in the presence of the accused, subject to such exertion or right of reply as he would be entitled to at any other open stage. In practice the occasions of such requiring of opinion have as yet been rare. As to preserving the votes of the members. The point was at one time considerably discussed, whether the judge advocate should preserve the written votes of the members given upon the findings or sentence. The only reason for preserving them would seem to be that, in their absence, the judge advocate, (or a member,) would not be enabled or would be less able to testify as to the same if called upon to do so by a " court of justice " — the contingency Indicated In Arts. 84 and 85.' But these Articles do not require that he should hold himself prepared to give such evidence. Moreover the written votes are no part of the official record or papers, but mere personal memoranda. Further, if they are preserved, they may endanger the discovery, by unauthorized persons, of the Totes or opinions which the judge advocate and members also have sworn not to make public." The question involved is really one which concerns less the judge " See generally, upon this subject, Simmons § 612, 636 ; Kennedy, 229, 230 ; Stocqueler, 113 ; Hickman, 137 ; Bombay, B., 31 ; Macomb, 58 ; De Hart, 327-8 ; O'Brien, 283, 284 ; Ben€t, 201-2; Coppfie, 60. • The leading case in which the prevailing practice was asserted was that of Capt. Amos Blnney, reported In "The Militia Reporter," p. 180, (1810.) Here, upon the court clearing to consider an objection to evidence, the accused claimed that he had a right to remain and be heard equally with the judge advocate. The court ruled that he must retire in accordance with the established practice, and because, If they allowed him to remain, they might violate their oaths in regard to the disclosure of the votes and opinions of members. They also ruled that they could not exclude the judge advocate, for the reason that it was the custom that such officer should he present at deliberations, and that the Article which required him to be sworn not to divulge any vote or opinion, &c., evidently contemplated that he should be present. ' See Warren, 229, 232, 233, 254 ; also Report of Judiciary Committee of Senate, No. 1337, of Feb. 18, 1885. _ .. ,,. ^ . j * "In a case which has occurred since the Act took eftect, where the Judge advocate was allowed to remain with the court during the making up of Its Judgment, it was deemed best to disapprove the sentence as fatally Irregular. G. C. M. O. 73, Dept of Dakota, 1892. In the opinion of the author, the sentence Is not invalidated in such a case. • 1 McArthur, 323 ; TyUer, (edit of 1800,) 371. ., . n «i, ^t..» "See Simmons I 614; Kennedy, 237 i Tytler, xlli (Opinion of J. A. Gen., Sir Chas. Morgan!) Stocqu«aer, 114; Griffltha, 176; Ben«, 127. X96 MHJTAKY LAW AJSTD PRECEDENTS. advocate than the mendins, slfice the latter may, under certain circumstances, become amenable to a dvll suit for damages for their action upon the court And now that the Judge advocate Is excluded from deliberations in closed session, it is eqiedally appropriate for the members to decide this question for them- selves. To destroy such papers is beUeved to be the almost uniform practice In our service.*^ The personal relations of court and judge advocate. In this connection the personal relation premier and desirable to be maintained between the judge advocate and the court may well be touched upon. It is clear, as indicated by De Hart," that such acts on the part of the judge advocate as the expressmg of opinions where the same are not requested or warranted, the raising of points as to unimportant matters, the interposing of petty objections to testi- 290 mony. and the exhibition of testiness or irritabiUty, can only bore and worry an assemblage of miUtary men, and incUne them to override the judge advocate in the positions taken by him. On the other hand, within his separate province, the Judge advocate is entitied to be recognized by the court as occupying a position as independent as its own, and, wherever a proper and adequate occasion presents itself, is authorized not only fully to express but to accentuate his views, even at the risk of ofEendlng some member or members who may entertain opposite opinions. But where the Judge advocate Is a person uniting tact with skill, he wiU rarely find it necessary to assert himself as against the court. The latter perceiving him to be master of his case, and not dogmatic but simple and dignified in his manner of presenting It, wiU come to respect his opinions, and to consult and follow him as a legal adviser. Thus a mutual deference and confidence will arise, which will not only do away witii much of the irritation Incident to the colUslons of an extended trial, but will result in a harmonious and effective dispatch of business. AmenabiUty of judge advocate for misconduct before the court. It need hardly be added that while the judge advocate cannot of course be placed In arrest by the court or its president," he may be made amenable, under the 62d or other appropriate article, for any marked disrespect or disorderly be- haviour in its presence, upon a representation made by It of the facts, or formal charges preferred, to the proper superior. So, for disturbing the proceedings as indicated In Art. 86, he may become punishable as for a contempt. The author, however. Is not aware of any precedent In our service of a conviction by court- martial of an officer for misconduct of this character in the capacity of a judge advocate." AS COtmSEI. OB ADVISBB OP, AOT) IK HIS KEIiATIOK TO, THE ACCUSEI). — ^Particulars already considered. Under the head of the prov- ince of the judge advocate prior to the trial, we have noted the duties, devolving upon him at that stage, of serving (and es|>lalnlng wherenecessary ) the charges, furnishing a copy of the convening order, ^ving notice of time and place 291 of trial, summoning witnesses for the defence, &c. We have now to tDquire how far tiie judge advocate is called upon to counsel or assist the accused pending the trial or in connection thecewlth, and, generally, as to his offidal relation to the accused. Effect of Art. 90. This Article declares that the judge advocate, " tcAen tk« prisoner has made Ma plea, shall so far consider himself counsel for the prisoner at to object to any leading question to awg of the loitnesses, and to any question to "■ Bee tbls subject also considered In caiapter XIX on the Finding. "Page 328. And see Copp^, 60. ^ Cbapter XII. And see Mcl«aghten, 170-1 ; DioasT, 461. "But Bee British precedents referred to by Hongh, (P ) 704; also case of Majiff Browse reported In James, 504. MILITAEy LAW AND PBEOBDENTS. 197 the prisoner the answer to wMcK migM tend to criminate Mmself." Thla Is a most. Imperfect and ineffective provision ; objecting to leading qnestlons Is but a single feature of the function of counsel, and,, as to questions " to the pris- oner," these are now unknown in our practice." This provision, (derived from the Articles of 1786, illustrates the fact that the entire Article is In the main Obsolete and futile, and might well, as already indicated, be omitted from the code." Nalture and extent of his function as counsel, &c. It Is clear that the Judge- advocate cannot act in a personal capacity of counsel to : the accused, since such a character would be incompiatlble- with that of public prosecutor. Thus it is clearly only in an offlcial relation that he can advise or assist the accused. We have already seen that a > judge advocate is bound to consider hims^ not merely as a prosecutor but as a " minister of justice ; " the common law doctrine being that the prosecuting official in a criminal proceeding was " the assistant of the court In the furtherance of Justice." " This doc- 292 trine is applied to the military procedure by Simmon^" in. holding that it is " in consonance with the custom of the service that the Judge advo- cate should only interfere to the extent to which the court Itself is bound to interpose." In our practice, however, no strict rule has been prescribed or observed on this subject;, and how far the judge advocate shall properly counsel and assist the accused is left to d^>end in the first instance on whether he is furnished with competent personal counsel, and secondly on his own iU' telUgence and ability to defend bimseU. Where he is without counsel, and especially where he is an ignorant or inexperienced soldier, the Judge advocate will properly render him, both in and out of court," such assistance as may be "Bzcept indeed In a case — of course not contemplated by this Article — ^wbere, under the recent Act of Marcli 16, 1878, tlie accused' goes on the stand as a toitneai In bis own behalf, when he Is examined and treated like any othe^ witness. This Article has In view an inquisitorial examination. ^* The declaration that — " The judge advocate shall prosecute in. the name of the United States," is the only provision that is of any significance. This part of the Article might well be incorporated with Art. 74, the remaining portion being dropped from the code. xReglna v. Thursfield, 8 C. & P. 269. And see Reglna v. Berens, 4 F. & F. 842. The origin of this doctrine is the maxim or rather fiction of the common, law that on an indictment for treason or felony, as the prisoner was not entitled to defend by counsel, the judge acted as his counsel. 4 Black. Com,, 355; 1 Bishop, C. P. S 296; 2 McArtbur, 41. " § 468. " Ir his duty toward the prisoner. Indeed, he is not obliged to go farther than the court itself: the court sits for the purpose of doing justice, and Is bound to take care that the prisoner does not suffer from his ignorance, inexperience, or in- capacity." Flpon & Col., 40. And see XIV Law Mag., 13 ; Macomb, 81 ; Ben«, 196. Lord Brougham, In a debate lii Parliament, described the judge advocate as: "the assessor of the court — standing between the prisoner and the court." Clode, M. L., 126. "The distinction taken by Kennedy, (p. 235,) and repeated by some of our writers, (O'Brien, 285 ; De Hart, 309 ; Benfit, 196,) that a judge advocate may more properly or fully assist an accused out of than i» court, has no place in our law and is not regarded in practice. At what stage or stages the Judge advocate will best or most properly advise or assist the accused will depend upon the circumstances of each case. The doctrine as stated by Simmons, (§ 468, and see Plpon & CoL, 40,) may be noted here— that the accused has a "right to the opinion. of the judge .advocate, either in or out of court, on any given question of law arising' out of the proceedings." This ,rule, (repeated by De Hart, p. 312,) is now declared In the Bules of Procedure, 101 (A.,) as follows : " The prosecutor and the prisoner respectively are, at all times after the judge advocate is named to act on the court, entitled to his opinion on any qumtlon of law relative to the charge or trial, whether he Is In or out of court, subject when he is in court to -the permission of the court." But this doctrine too has no place In our lawl where the Judge advocate difljers from the same oflcial in the British pro- cedure In being the prosecutor and In not .representing the Judge Advocate Geaeral. With U8 he furnishes no opinions except when requested to do so by the court The court Indeed may ask his opinion at the Instance of the accused. But offlcial opinions out of court are unknown in our practice. 198 mhjtaky iaw a2td pkecedknts. compatible with his primary duty of efficiently conducting the prosecu- 293 tion." In addition to aiding him before the trial in coUectlng his proofs and preparing his defence If he has one,— (and he wlU especially guard against even suggesting his pleading guilty If the case has any merits what- ever,")— he will property assist him In presenting in due form such chaUenges as he may desire to urge," in offering his plea or pleas general or special, and In bringing out the full testimony of the defence on the trial," as well as such circumstances of extenuation as may exist in the case;** and will further advise him of his right to be furnished with counsel, to take the stand as a witness, and, generally, as to his rights and privileges at all stages of the caae." It is in omitting to bring out in evidence existing matters of defence or ex- tenuation, that judge advocates are most liable to fall in furthering complete justice in military cases. Though the defences and excuses set up by enlisted men in their statements to the court, especially in connectloBL with pleas of guilty, are not unfrequently fabrications, they are by no means always so; and where there is no sufficient reason to doubt the good faith of the accused, the representations made in his statement, if not already sufficiently tested by evidence on the trial, may and in justice should be Investigated, so far as the circumstances and exigencies of the service will reasonably permit. That It is incumbent on the judge advocate, (as well as on the court,) where the statement of the accused Is Inconsistent with his plea of guilty, and, in asserting facts constituting a substantial defoice, indicates that the plea has been ignorantly made, to assist him to establish such facts in evidence before the case is finally closed, — ^has been repeatedly urged 'by the Judge Advocate General," and by reviewing officers in General Orders." 294 The relation of the judge advocate to the accused makes it further proper that, where the latter Is unskilled or ignorant, the former should assist him in the preparation of his concluding statement or address, reading it also for him to the court if desired." » See Tytler, 356 ; Stocqueler, 113 ; Macomlj, 80 ; Copp«e, 20 ; G. O. 46, Tbird Mil. Dlst., 1868 ; Queen's Regulations, Sec. VI § 84. The Judge advocate should not, " In his zeal as prosecutor," be induced to " overlook the Interests of the prisoner." G. C. M. O. 3, Dept. of Arizona, 1883. (Gen. Crook.) " " For the Judge advocate to counsel the accused, when a soldier or Inferior in rank, to plead guilty, must in general be unbefitting and Inadvisable." Digkrt, 458. And see G. O. 45, Third MU. Diet., 1868. " See G. C. M. O. 19, Dept. of the Columbia, 1882. »In G. O. 42, Dept. of the Platte, 1871, it was remarked that the Judge advocate, where the acdused was without counsel, might properly take exception In behalf of the latter to a legally objectionable question put to a witness by » member of the court M Digest. 458-9 ; O. O. 45, Third Mil. Dist., 1868. » G. O. 75 of 1887. •• Digest, 588-590. A view similar to that expressed in the text is contained In the Bombay R., p. 53. " See the following G. O, or G. C. M. O., in which the views on this subject of the Judge Advocate General are concurred in, or similar views are advanced, by military commanders: G. C. M. O. 2 of 1872; Do. 31 of 1876; Do. 34, Northern Dept., 1865- Do 46. Dept of the South, 1868 ; Do. 7, Id., 1869 ; Do. 28, Dept of the Platte, 1869 : Do. 89, Id., 1870; Do. 24, 68, Id., 1871; G. O. 31, Dept of Cal., 1872; Do. 5b! Id 1874; Do. 98, Dept of the Bast, 1872; Do. 14. 43. 68, Id., 1878; Do. 81, 83. 98, Dept of Dakota, 1873; Do. 8, Id., 1876; Do. 19, 38, 88, Dept of Texas, 1873; Do 11 16 18 Id., 1874 ; Do. 45, Id., 1875 ; Do. 5, 74, Dept. of the Mo., 1875j Do. 61, Id 1876 ' Do' 29* Dlv. Atlantic, 1874 ; Do. 23, Id., 1876; Clrc, Dept. of the Gnlf, Oct. 12, 1868. ' » See Ben«, 117. That a Judge advocate cannot independently of the court assume on account of its objectionable character, to reject a "statement" proposed to be offered by the accused, and require him to substitute another, was properly held to Q. O. 81, Dlv. Atiantic, 1878. MILITARY LAW AND PRECEDENTS. 199 It is to be added, however, In this connection, that where the accused Is pro- vided with capable counsel, or, being an officer or person of unusual Intelli- gence, Is fully competent to conduct his own defence, the relation of the Judge advocate toward him Is so far modified that the former may be required. In the Interests of justice, to assume a controversial If not an aggressive attitude. It will then Indeed be his duty to resist the Introduction by the accused of objectionable testimony, to contest any Inadmissible special pleas or unreason- able motions made by him, and generally, while courteous In his treatment of him and strictly fair and considerate of his rights, to maintain with the zeal and energy of a champion the cause of the United States. AS BECOBBEB. — In general. The duty of the judge advocate as re- corder or registrar of the proceedings is not, in our law, as is that of prosecutor, attached to his office by statute, but by long established custom. This, while one of the principal functions of the Judge advocate, is one in the exercise of which he is less Independent than in any other, being here subject In the main to the direction and control of the court. That It is the court which really makes the record, the judge advocate being little more than Its agent In the 295 matter, is recognized in the Army Regulations, which, In par. 914, provide tliat — " every court-martial shall keep a complete and accurate record of its proceedings." But while the court Is primarily responsible as well for the form as for the substance of the record, the judge advocate Is chargeable with any lack of due carefulness which he may display In making it up, as well as for any omlssiofis, inaccuracies, or other errors, which are traceable to his own negligence." The Record thus being a history not properly of a prosecution by the Judge advocate but of an investigation and Judgment by the court, will be more suitably considered hereafter In a separate Chapter. AtTTHOEITT AND DUTY UNDBB ABT. 85— Disclosure of " vote or opinion." This Article provides that there shall be administered by the presi- dent of the court to the judge advocate, before the trial is entered upon, an oath that he "wUl not disclose or discover the vote or opinion of any particular mem- ber of the court-martial, unless required to give evidence thereof, as a witness, hy 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 dis'closed by the same." This provision amounts, in the first place, to a prohibition of the disclosure, either directly or indirectly, by the Judge advocate. In making up the record or otherwise, of the vote or opinion of any member, not only upon the finding but also upon any interlocutory question determined by the- court. And a disclosure of the combined vote of all the members is a breach of the oath : thus a statement In the record that a vote or finding was " unanimous " has properly been held to constitute a violation of the prohibition of this Article, (as well as of the 84th,) since it is a disclosure of the opinion of each individual member." 296 In regard to a corresponding article In the then British code, the view was expressed by Hough" that the Judge advocate, though for- bidden to disclose votes and opinions of members, was " not precluded by the ^In O. C. M. O. 29, Dept. of Texas, 1884, the following comment Is made by Gen. Stanley upon the performance of his duty'as a recorder by a judge advocate — " The Judge advocate's want of appreciation of his duties is amply Illustrated In the record of this case. A more Incoherent, Inaccurate, incomplete and utterly unreliable record of pro- ceedings than the one now under review has seldom reached a reviewing officer." Contra, note the commendation, by Gen. Wheaton, In 6. C. M. O. 9, Dept. of Texas, 1^93, of the extra care shown by a Judge advocate In so preserving his original minutes of the pro- ceedings of a trial, that the formal record lost in the mall was enabled to be duplicated. ^ See Digest, 98. " Page 373, note. 200 MILITAEY LAW AND PEEOEDBNIS. Article to state any circumstances within Ws knowledge which may not be recorded on the proceedings, which the commander-in-chief should be confi- dentially Informed of," so long, he adds, as the same did not extend to the discovery of the views of any particular member but concerned only Its " gen- eral opinion." And Macomb," upon this subject, writes : — " It is not Inconsistent with his oath or duty for the judge advocate to communicate to the proper authority his views of the proceedings of the court," The occasions^ however, will certainly be rare when the judge advocate will be justified in making a communication of such {i character. And now, since the enactment of the statutory provision of July 27, 1892, by which the judge advocate is excluded from closed sessions, it will be most rarely that he will ever know the vote or opinion of a member, or be able to disclose such, either before a court of justice or otherwise. Divulging of the sentence. Although the judge advocate is not present at the making up of its judgment by the court, the sentence, if any, with the find- ings, m\ist be communicated to him in order that the sahie may be entered In the record, and that such communication shall be made is Contemplated by the terms of the 84th Article, as amended by the legislation of July 27, 1892. As to the divulging by him of the sentence when thus Imparted to him — ^there Is nothing in the form of his oath, as prescribed by Art 85," to preclude the judge advocate from making known the sentence to the reviewing offic«: prior to the forwarding to him of the completed record. In practice, however, this Is not often done, the custom of forwarding the proceedings immediately upon the termination of the trial doing away in general with any occasion for com- mxmlcatlng the sentence before It would regularly become known from the record Itself. 297 Unless the word "sentence" in the Article is construed as meaning judgment, — and no sufficient authority is perceived for such a construc- tion, — it would not, strictly, constitute a violation of the oath for the Judge advocate to disclose the fact of an acquittal by the court. But such a disclosure, made to the accused or any person other than the reviewing authority, would be so clearly contrary to the spirit of the Article and to the usage of the service, and so manifestly a breach of official confidence on the part of the judge advocate* as properly to render him amenable to a charge under Art. 62." Being prohibited from divulging the sentence "to any but the proper au- thority," the judge advocate can not of course communicate It to a derk or reporter employed to write out the proceedings, but must himself enter it in the record in his own writing." AUTHOBITY AND DUTY UNDER SEC. 1202, B,EV. STS. — ^Effect of the provision. This statute, by which provision Is made for the Issuing of proc- ess of attachment of witnesses by judge advocates. Is as follows -.—"Every judge . ■ i — " Page 34. And see O'Brien, 259. "This part of the oath in the British law is: — "Ton do swear that yon will not, unless it t« necessary for the due discharge of your opoial duties, divnlge the sentence of tills eourt-martlal until it is duly confirmed." Rules of Procedure % 27, (A.) " In a recent Order — G. C. M. O. 11, Dept. of the Mo., 1882 — Gen. Pope, in- passing upon a case of a soldieT acquitted by a general court-martial, remarks as followB : — ^"After the close of this case the court directed the Judge advocate to communicate to the port com- mander the fact of the acquittal of the accused. To this the Judge advocate took ezceptlon on the ground that he felt hound by the nature of his oath not to so divulge the finding of the court, and had therefore respectfully to refuse to obey Its mandate. Theae facts appearing of record, the Department Commander rules that the court exceeded Its authority In the premises." "Neither findings nor sentence can properly be printed In the record with a type- writer. Circ. No. 12, (H. A.,) 1883 ; 6. C. M. O. 11, Dept. of the Columbia, 1892. MILITAIIY LAW AND PKECKDENTS. 201 adyocaie of a court-martial " shall hwve povmr to issue the like process to compel witnesses to appear and testify which courts of criminal jurisdiction within, the State, Territory, or District where such military courts shall he ordered to sit, may lawfully isstie." This statute, which would properly be included in the code as an artiele of war, was originally a provision of an Act of 1863, the first legislation on the 298 subject." In transferring this provision to the Kev. Sts, the words " or court of inquiry" which followed the words "court-martial" were omitted. The authority conferred, therefore, while it may legally be exercised by judge advocates of inferior as we)I as of general courts, can not be exercised by recorders of courts of inquiry. The authority is in terms vested solely in the judge advocate, and it is by him alone that the process can be initiated. No power is conferred upon the court, nor does the mandate, like the writ of a civil tribunal, Issue in Its name.°° The judge advocate, however, will sometimes properly consult the court as to the desirableness of resorting to an attachment ; especially where any considerable time may be required for the service and return of the same, and an unusual adjournment may thus be necessitated. He will also properly resort to it when- ever the court, in its desire to secure the best or material evidence not otherwise procurable, calls upon him for the purpose." ITature of the authority. To authorize a resort to an attachment under this statute, there must have been a formal subpcena duly Issued by the judge advocate and duly served upon the witness, and not complied with by him.** The authority to issue the compulsory process is co-extenslve with the authority to issue the subpoena, arid with the jurisdiction of the court. The judge advo- cate of a court-martial convened at any place within the United States may issue an attachment to compel the attendance before it of a witness resident or being at any other place therein,** and whether he be a Inilltary person or civil- ian." It was, however,. for securing the attendance of dviliam vsritnesses that the enactment was originally designed. 299 Service of the process. As to the mode of executing the process, it was held by the Attorney General *° that, In view of the omission in the Act to indicate to whom the process should be directed or by whom it should be served, the judge advocate might legally direct it to some military ofBcer, who would thereupon be " charged with the diity of executing it." Upon this ruling was issued G. O. 93 ,of 1868, now incorporated in par. 1009 of the Army Regulations, by which it is enjoined that the judge advocate Issuing the process, "will formally direct the same to an oflScer designated by the Department Commander for that service ; " " and It Is added that " thfe nearest military "That this means court-martial In the army, and that the Jndge advocate of a naval com't-martial Is invested with no such power, has been ruled by the Attorney General. 19 Oplns., 501. "See 3 Jour. Cong., 392, (November, 1779,) where it is recommended by Congress to the State authorities to grant writs, on the application of judge advocates, to compel the attendance of witnesses before courts-martial. ** " The attachment is not a writ or process of the court, but simply a compulsory In- strumentality placed at the disposition of the judge advocate as the prosecuting official representing the United States." Digest, 757. » See G. C. M. O. 32, Dept. of the Columbia, 1882. «> Digest, 757 ; G. O. 93 of 1868 ; 1 Greenl. Ev. § 315, 319. As to the proper mode of service, see ante. Par. 1009, A. B., Indicates that it "may be served by any person whatsoever." " Set Digest, 757-8, and nota *' 12 Opins. At. Gen., 501 ; 19 Id., 602. «12 Oplns. At. Gen., 501. **In view of the regulation, it would not be proper for the Judge advocate to direct the process to a U. S. Marshal or other civil official. See Digest, 753, 768. 202 MrLITAHY LAW AND PRECEDENTS. commander will thereupon furnish the necessary mlUtary force for the erecnttcm of the process. If force be required."" Where the attachment is *« "^^^"^^ at a locaUty not within the Department, &c., It may be forwarded directea in blanlj, the name of a proper officer being left to be inserted by the com- mander at the place of service or other superior authority. The occasions, how- ever, upon which resort has been had to the authority given by the statute have not been very numerous:" this because of the defects In the law nest noted. ., . Defects of the law. In Addition to not indicating In what manner the at- tachment is to be served and executed, the Section under consideration may be deemed to be defective in not providing for compelling the witness to teshfy. In the absence of any such provision, and In view of the fact that Art.^86 does not authorize punishing as for a contempt a witness refusing to testify," It follows that a civilian witness, though duly attached and compelled to appear, may, with entire impunity, refuse, if he see fit, to give any testimony what- 300 ever; no power to compel him, or to attempt to compel him, to depose being vested either In the judge advocate" or the court. This is a serious defect In the military law, calling for an amendment either of Art. 86 or of Sec. 1202. AtTTHOBITY AND DUTY XINDEB. SECTION 1203, KEV. STS.— rExeiv else of the authority. Tills section, which might also well have been inserted In the code as an article of war, and of which the original is a provision of the Act of March 3, 1863, c. 75, is expressed as follows : — " The judge advocate of a, mUitaai/ court sluUl 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 short-hand. The reporter shall, before entering upon his duty, he stoom, or affirmed, faithfully to perform the same." The iwwer to appoint the reporter Is perceived to be vested exclusively In the judge advocate ; it thus cannot be exercised by the court, nor Is It essential that the court should concur in an appointment." Inasmuch, however, as the court is responsible for the record which the reporter is to write, the judge advocate will be careful to employ as reporter such a person only as will be acceptable and satisfactory to the court,, and will properly discontinue the employment where the apjwintee does not prove thus satisfactory. The expense of a short-hand reporter should of course be incurred only In an important case, and a General Order of 1880, Incorporated In par. 1046 of the Army Regulations, declares that the employment of such a reporter shall be authorized only " in cases where the authority appointing the court may consider it necessary." As imposing a restriction upon a power conferred by statute, the legality of such an order may be doubted ; in itself, however, it is a proper and desirable regulation, and should of course, (till rescinded or modified,) be « See Digest, 758-9. " The most ample use known to have been made of this process In any Instance was on the trial of McRae and others, by military commission, in North Carolina, in 1867, when it was resorted to to compel the attendance of Jive p^'sons as witnesses. Forms of the Attachment are given in the Appendix. " See Chapter XVII. — "Art. 86 : Its general effect," and note referring to rulings on this subject. «The provision of Sec. 1202, that the judge advocate "shall have power to Issue process to compel a witness to appear and, testify," can clearly not be construed as vesting a judge advocate with power to employ force against, or to punish, a witness. The words " and testify " have reference only to the effect and purpose of the process of attachment. "DiaEST, 659. MILITABY LAW AND PBECEDENTS. 203 Strictly observed by the judge advocate, especially as Its observance may 301 be a necessary condition to the receiving by the reporter of his com- pensation. Status, compensation, &c., of reporter. The judge advocate Will properly supervise the performance of his duty by the reporter, giving him the needful Instructions. By whomi the reporter shall be sworn is not indicated in the law : In practice he has been sworn by the judge advocate, who is now certainly thereto authorized by thff legislation of July 27, 1892." Although it Is prescribed In general terms In the Section that the reporter " shall record the proceedings and testimony," It is clear, in view of the provisions of Arts. 84 and 85^ that he cannot, any more than an ordinary clerk, properly be permitted to remain with the court after it is cleared fpr its final deliberation, for the purpose of recording the findings and sentence." The statute. In authorising the aKwlntment of short-hand reporters, con- templates of course that they shall be properly compensated, and par. 1047 of the Army Regulations, now fixes their compensation at an amount " not to exceed t«!n dollars a day," and " in special cases " a certain rate " per folio for taking and transcribing notes," &c. It Is added — " Reporters will be paid by the Pay Department, on the certificate of the judge advocate." The annual Appropriation Act for the Army contains an express appropriation — " for compensation of reporters (and witnesses) attending upon courts-martial and courts of inquiry." Duty of the Jddob Advocate: after the Tbial and Completion of the Pbo- oeedinos. It is a part of the duty of the judge advocate to give certificates of attend- ance to the civilian witnesses, including such as may have attended to testify by deposition, in order that they may receive their legal allowances for at- tendance and travel. Such certificates may Indeed be given pending the trial, when the witnesses are not required to be detained till its completion. The law does not authorize the payment of witness fees in advance In 302 military cases. The allowances and compensation of witnesses before courts-martial are set forth in Art. LXXVI of the Army Regulations."" Besides making out the proper certificates for witnesses and reporters, the only duties devolving upon the judge advocate after the proceedings of the court have been finally terminated and authenticated, are to complete the formal record, (annexing the exhibits, &c.,) and forward the same to the proper reviewing authority. The perfecting of the record will be referred to In the Chapter on the Record. THE EOBWAKDING OF THE BECOBD. This duty Is enjoined upon the judge advocate by the 113th Article of war, but this Article Is defective In re- quiring judge advocates of general courts to forward the proceedings In all cases direct to the Judge Advocate General. In this general requirement the Article Is not in harmony with the provisions of Arts. 104 and 109, requiring the approval of the proceedings, &c., by the ofllcer ordering the court ; and the existing practice does not accord *ith It except in cases of records of courts which have been ordered by the President. The practice, and proper procedure, in the first instance, are therefore now indicated In the Army Regulations, " In Clrc. No. 12, (H. A.,) 1892, the form of the oath Is prescrihed as follows — " You swear that you will faithfully perform the duties of reporter to this court. So help you God." " DiGBSTj 264, 660. But the fact that he was allowed to remain would not affect the legal voWdtty of the finding or sentence. Id., 98, 264. "And see Clrc. No. 1, (H. A.,) 1886 ; Do. No. 10, Id., 1889. 204 MnjTAIlY LAW AND PBECEDBNTS. par. 1041, as follows: — "The Judge advocate shall transmit the proceedlngB (of general courts-martial) without delay to the otBcer having authority to confirm the sentence." Proceedings of courts ordered by the President are required, by par. 985, to be " sent direct to the Secretary of War ; " and pro- ceedings of courts " which require the confirmation of the President, but have not been appointed by him," and those which, under par. 1023, speciaUy require the action of the Secretary of War, " will be forwarded direct to the Judge Advocate General." A judge advocate is amenable to trial for neglect of duty in unreasonably delaying to forward a record. The General Orders of the Department of Vir- ginia " contain a case of an officer convicted of the offence of neglecting, for thirteen days after their completion, to forward certain records of a military commission of which he was judge advocate, " thereby," as it is added in 303 the specification, " unnecessarily prolonging the imprisonment of " an ac- cused "who had been acquitted by the said commission." In a further case In the D^artment of the Lakes," in which the proceedings were not transmitted by the judge advocate to department headquarters till at the end of a month after the completion of the trial, the reviewing authority. Gen. Bobinson, remarks: — "No amount of extra duty required of any officer can excuse him for such delay as this while acting as judge kdvocate." And he adds that the judge advocate should promptly forward the record, not only be- cause directed to do so by the Army Regulations, but because " common justice to the prisoner requires that he should be speedily punished if guilty or released if Innocent." In another Order" the point has been noted that a judge advocate should not defer sending forward a record till he can accompany it with records of other cases tried by the same court, but should in general transmit each record separately as soon as completed. " G. O. 36 of 1866. " G. O. 10 of 1867. " 6. O. 10, Dept. of Texas', 1873. CHAPTER XIV. CHALLENGES. 304 In a previous Chapter we left the Court ready to proceed to be organ- ized for the trial, subject to such objections, or challenges, as migllt properly be taken to the members. To this stage we now recur.. THE WBITTEir LAW ON THE SUBJECT. The only statutory law re- lating to the matter of challenges Is the 88th Article of war, of which the original was the 71st Article of the code of 1806. The existing Artide is as follows :— "Members of a. coun-martial may be challenged by a prisoner, but only lor cause stated to the court. The court shaU determine the relevcmcy and validity thereof, and ShaU not receive a challenge to more than one m&nber at a time." The Army Regulations, par. 1037, direct that the record of the court shall show that previously to the swearing of the court the accused was " asked liE he wished to object to any member, and his answer to such question." The question here indicated as to be addressed to the accused Is, in practice, preceded by a reading to the accused of the order or orders constituting the court and detailing the members by their names and official descriptions. In considering the subject of the present Chapter, we will commence with a Construction of the provisions of the Article, thus disposing of several questions of importance, and examining next the Procedure under it, will conclude with a review of the Grounds of Challenge, as indicated and illustrated both by the military authorities and the rulings of the civil courts. I. THE ARTICLE CONSTRUED AND CONSIDERED. " MEMBERS." This general term necessarily Includes the president 305 and subjects him to challenge in precisely the same manner and to the same extent as any other member. The "members" only being made liable to objection, it follows that the judge advocate, not being a member. Is not challengeable under the Article.' Any objection which the accused may have to the judge advocate must be addressed to the convening authority.' In the term "members" are of course embraced not only the members orig- inally detailed, (including both those present when the court Is first assembled and the opportunity of challenge is first' exercised by or extended to the accused, and those, if any, who may arrive and take part on a subsequent day,) but also members who may be added to the court to replace those dropped upon challenge or relieved by order.* For, as to all members who come, imder whatever circumstances, to act upon the court, the accused has the same right, and should be offered the same opportunity, of objection under the Article. In several cases published in General Orders, the proceedings have been dis- 1 Simmons §465, 499; Kennedy, 52; Hongh, (A.) 48; Napier, 88; Clode, M. L., 126; Franklyn, 24; Bules of Procedure, 25, (B. ;) O'Brien, 240; De Hart, 116, 312; Digest, 103, 457 ; G. O. 2S, Dept. of Arizona, 1876. Tbe point was much contested In some of the earlier cases. In the leading case, for example, of Capt. Porter, U. S. N., in 1825, thtf liability of the judge advocate to' challenge was elaborately urged by the accused in argu- ment, but not recognized by the court. ' Simmons § 465 ; Benet, 70 ; Capt Loring's Trial, Militia Reporter, 21. 'Bimmons { 499; Hough, (A.) 60; Kennedy, 66; McNaghten, 174; Hughes, 42. 205 206 MILITAKY LAW AND PEECEDENTS. approved because it did not appear that the accused had been afforded the opportunity of challenge as to members joining, or added to, the court after its first organization or assembling' So, where a court-martial has been required to be dissolved, and a new court of some of the same members has been substituted, for the reason that by the operation of challenges or otherwise the first court was reduced below five members, the members of the second court are liable to challenge though they may have been so subject, and may even have been unchallenged in fact (unsuc- cessfully) on the original court.' 306 " or A COTTBT-MAIITIAL." This term includes, with general, also regimental and garrison courts;" and the members of these courts are accordingly challenged in our practice, though much more rarely than the mem- bers of general courts. The term does not embrace a court of inquiry ' nor a military commission ; and no other provision exists In our code by which the challenging of members of either of these bodies is authorized: in practice, however, the right of challenge Is recognized before each. " TWA V BE CHALLENGED BY A PMSONEB." Here is authority for the talking of exceptions to members 6y the accused only. It is uniformly held, however, by the authorities that the same right may, and in a proper case should, be exercised by the prosecution ; * and in practice judge advocates, occasionally though not frequently, do interpose challenges on the part of the United States. Resting, as such action really does, on longTContinued usage, It is now too late to dispute Its authority. Were the question a new one, it might well be argued that the statute, in specifically extending the privilege to the " prisoner " only, was properly to be construed as excluding the prosecutor. "ONLY FOR CATISE STATED TO THE COURT. " This provision ex- cludes peremptory challenges," i. e. challenges preferred without any reasons assigned therefor. Of these a certain number were, in capital cases, allowed to the prisoner, in favorem vitw, by the common law, and are now allowed to 307 both parties in civil and criminal cases by the laws of most of the States and of. the United States.'" At military law, however. In England, the same were not formally sanctioned by usage," and are now precluded by statute : " in the American military code only challenges for legal cause have ever been iwrmitted." * G. O. 68 of 1863 ; Do. 12, Dept. of the Gulf, 1885 ; Do. 2, Dept. of the Platte, 1868 ; Do. 5, Fourth Mil. Dlat., 1868 ; G. C. M. O. 18 of 1889 ; Do. 6, Dept. of the Miss., 1865. •See De Hart, -89-90. • Field officers' courts, however, are not subject to challenge under the Article, " be- cause, being composed of but one member, there is no authority competent to pass upon the validity of the challenge." Digest, 99-100. ' Simmons § 340 ; Digest, 136. In the Joint Resolution of Congress, of Feb. 13, 1874, authorizing the special Inquiry In the case of Brig. Gen. Howard, it was provided, — "that the accused may be allowed the same right of challenge as allowed by law in trials by court-martial." This exceptional provision would have been mmecessary if the right had legally attached to courts of Inquiry In general at military law. " That the right Is " mutual " or " reciprocal," i. e. possessed by thfe judge advocate equally with the accused, see Adye, 167 ; Tytler, 225 ; Hough, 944 ; Id., (P.) 664 ; McNaghten, 103 ; Hughes, 41 ; Macomb, 31 ; Maltby, 28 ; O'Brien, 240 ; De Efart, 118 ; Ben^t, 70 ; Lee, 60 ; G. O. 11, Dept of Cal., 1865. " Maltby, 28 ; De Hart, 114, 118. "See Sec 819, Eev. Sts. >i Williamson, 85 ; 2 McArthur, 273, 275 ; Tytler, 221 ; Simmons i 500 ; Kennedy, 51 ; Griffiths, 47 ; Bombay, E., 11. >^ Army Act § 51. " As has been well said by Gen. Terry,—" the allowance of a chaUenge U not a matter of discretion," but one to be determined " in accordance with established principles and rules of law." G. C. M. O. 184, Dept. of Dakota, 1884. MILITAEY LAW AND PRECEDENTS. 207 A " cause stated " is, properly, not merely a general statement or assertion, as that the member Is prejudiced, biased, &c. The facts and circumstances in which the alleged prejudice, &c., is deemed to consist should in each case be set forth, to fully meet the requirement of the Article. The objection should be specific, or as much so as the challenger can reasonably make it." " « THE COTTKT • * * SHALL NOT RECEIVE A CHALLENGE TO 3ffOIlE THAN ONE MEMBER AT A TIME." That is to say, challenges to the array " shall not be entertained ; or, as Simmons expresses it, " a prisoner cannot challenge the court generWly," or " the whole of the members collec- tively." " Thus objections which go to the jurisdiction, constitution, composi- tion, &c., of the court as a body cannot be entertained by a court-martial aa challenges under the present Article." And, though the accused may deem all the members to be prejudiced or otherwise personally subject to exception, 308 and though his grounds of objection may be the same to each member, he cannot include them all in a general challenge, but is permitted to challenge them singly only." He may Indeed challenge all in succession if he sees fit," but the court will only receive and pass upon a challenge to one member at a time, not entertaining a further objection till that previously offered has been determined." Where a party has several distinct grounds of objection to one member, the better practice Is for the court to' require that they be offered separately, in such order as the party may prefer. II. PHOCBDURB UNDER THE ARTICLE. AT WHAT STAGE CHALLENGES MAY BE OFFERED. The regular and appropriate occasion for the interposing of challenges Is when the accused, by the reading of the order or orders detailing the court, is Informed as to the members present, and before the court is sworn." It Is then that the accused is formally asked by the judge advocate, In accordance with the army regula- tion heretofore cited, if he has " any objection to any member," and it is then that, (like the prisoner before a civil court at the corresponding point of its proceedings,) he must present such objections as he knows or believes to exist, if he desires to take advantage of the same. If at this time he fails to present "Digest, 101. And compare Mann v. Glover, 2 Green, (N. J.,) 203. '" So called in reference to the wbole body of jurors as " arrayed, or arranged On tbe panel." " S 496. And see Digest, 102-3; 6. C. M. O. 8, Dept. of the Platte, 1873. In Capt. Drane's case, (1847,) the accused challenged the array on the ground that not one-half of the members were his superiors in rank ; the objection was not sustained. In Com. Wilkes' case. In 1864, the accused challenged the array on -the ground that the Secretary of the Navy, who, in accordance with a peculiar usage confined to the navy, had preferred th^ charges, had also selected the court. The court refused to entertain the challenge. " Compare Brooks v. Davis, 17 Pick. 150 ; Clark v. Van Vracken, 20 Barb. 281. " See G. C. M. O. 8, Dept. of the Platte, 1873. » Simmons i 497, note ; Digest, 103 ; ' G. O. 37, Dept. of Kans., 1864 ; 5 Opins. At. Gen., 707. » Simmons ! 497. In a case in G. O. 24, Dept. of the Platte, 1869, tbe proceedings were disapproved because of the action of tbe court in entertaining a challenge offered by the accused tn two members at the same time, " in violation of tbe plain provlsioiis " of the Article. " Hough, 948 ; Griffiths, 47 ; De Hart, 126. " The regular practice is to challenge jurors as they come to the book to be sworn." People v, Damon, 13 Wend. 362. " The proper time for challenging is between the appearance and swearing of the jnron." Williams V. State, 3 Kelly, 463. 208 MILITABY LAW AND PKECEDENTS. such objections, he is held to have waived them, and cannot be allowed to Interpose them at any subsequent stage." 309 But valid objections may exist at this time, not known to the accused, (or to his counsel, if he has one,") and of the existence of which he could not by reasonable diligence have been informed." In such event, it Is permitted to the accused, (as to the prisoner under similar circumstances at a criminal trial,") to take his exception as soon as the facts justi^Ing It are brought to his knowledge, although this may not be tiU some time after the court has been sworn and at a late stage of the trial." Again, pending the trial, a member who has been duly sworn at the proper time, and has taken part in the proceedings, may, by some expression of opinion or other act, ren- der himself, as may a juror under similar circumstances, subject to challenge, and he may thereupon be challenged accordingly, whatever be the stage of the proceedings." In all such cases the military practice, in the 310 interest of justice, follows that of the civil courts in allowing the challenge to be interposed." The occasions, however, of challenges offered to members of courts-martial, after the court has been sworn, whether for causes previously existing but not known or for causes subsequently arising, are extremely rare. OKDEB OF CHAT.TiENGES. In the British law, objections to members are raised in the order of their rank, beginning with the lowest in rank." In our ■ Not replying or offering an objection when the question Is put " may be considered by the court as tantamount to his having no abjection." D'Aguilar, 101. " it a cause of challenge known to the prisoner prior to his arraignment has been waived by him, it cannot subsequently be urged." De Hart, 125. And see Digbst, 102. " The rule of the common law is that neither party has a right of challenge after the juror is sworn, for cause then existing." U. S. v. Morris, 1 Curtis, 35. " If a party Isnows of any prejudice entertained by a. juror, and malses no exception when the jury is empanelled, however good his cause of challenge then is, it must be deemed to be waived." Fox v. Hazleton, 10 Piclj. 277. And see case of Lieut. Armstrong, 17 Opins. At. Gen. 397. "• The rule that — " the knowledge of the counsel is the knowledge of the party, and notice to him is notice to the party," (State v. Fuller, 34 Conn. 280,) while applicable to military cases, would not ordinarily be so strictly applied as in a civil case. ••The furnishing to the accused before the trial of a copy of the order detailing the court has already, (see Chapter XIII,) been recommended as affording him an oppor- tunity to prepare such challenges as he may propose to offer when the court assembles. *> " It has always been held that if a juror prejudge the case, and it is unknown " at the outset, " it is ground for challenge subsequently." Sellers i>.. State, 3 Scam. 416. In this case, and others, new trials were granted because a juror, on being challenged and interrogated before he was sworn, had stated that he had not formed or expressed an opinion, whereas it subsequently appeared that he had in fact done so. Where the party, " though knowing of the objection, forgot to raise It at the proper time," he is not entitled to raise it subsequently. Barlow v. State, 2 Blaokf. 114. " If the party, before the juror is sworn, neglects to avail himself of means of information readily accessible by which he could inform himself of the objection, the law fixes him with knowledge, and will not allow him to take advantage of his laches." See Bailey v. Trumbull, 31 Conn. 581; Quinebaug Bk. v. Leavens, 20 Id. 87; Fox v Hazleton 10 Pick. 277 ; Gillespie v. State, 8 Terg. 507. ' "See Tytler, 231; Hough, .943, note; Id., (A.) 49; McNaghten, 173; De Hart 124. " It has always been allowable to challenge a juror after he is sworn for a cause thereafter arising, for the reason that the act of the juror which constitutes the new ground of chaUenge places him in the same relation to the remaining portion of the trial as that in which a juror challengeable at the outset stands to the whole investi- ^1' 5r ^? ,f' ''"*'■ ^^^ ""'*"« °^ *•'« "^'^ sround can be no more impartial than can be the tria from the beginning with a juror biased or otherwise disquallfled In advance. People »Bodine, 1 Edmonds, 44. And see State u. Fuller, 34 Conn. 280; Mynatt v. Hubbs, 6 Helsk. 322, and cases cited • ^o" . tolTse'it «%\T°.'1°*?^",- l^™^ * ™"'* °''^«<'«'"' t° " ■"«'"•'«' «f *••« 'o-rt. omitted to raise it at all at the trial, ,t was held that he must be deemed to have consented to I^^e^onn/fLT^°'*?; ^"1''^" *'*°P^^ *""" ••^*«'°e ">« objection at a later period il9 Tn ° '"P^^^^'-'^e *»>« validity of the sentence. Lieut. Keyes' Case,-In Diobst. « J^ °^T- ^^- ®^°-' ^32, and 15 Ct. a., 533; also 17 Oplns. 397. Eules of Procedure 8 25, (E. ;) Simmons § 497. MILITABY LAW AND PRECEDENTS. 209 practice no snch rule obtains; the accnsed, (or judge adTocate,) being per- mitted to d^Ilenge members, wliere he objects to more than one, In snch order as. he may deem expedient. FOBK OF PRESENTING CTTATT.ENGES. A party availing himself of the opportunity of challenge may state his objection verbally or in writing. In our practice, challenges are generally expressed orally : the court, however, in a proper case, as where the grounds of objection are exceptional in their na- ture, or vaguely declared, or are apparently frivolous or actuated by personal feeling, may require the challenge to be presented in writing. As observed by De Hart," the challenge should " always be stated in becoming and respectful terms "-^ rule particularly to be observed, where personal prejudice or hos- tility is ascribed to the member. a?he court may properly decline to enter- tain a challenge clearly frivolous," as well as one expressed in unnee- 311 essarily ofiEensive language. -But where the challenge merely states facts, which if proved wiU constitute a valid objection, the court cannot refuse to consider the same, however grave or injurious to the member may be the charge involved. The court, according to the practice already noted, vrtU require the party, where he has several distinct grounds of objection to a member, to present them seriatim, and will consider and pass upon the same separately, precisely as if they were challenges to separate members. Under the pretext or form of a second or further objection, a party should not be permitted to reiterate, in substance, an objection already overruled." BESFONSE TO TEE CHALLENGE BY THE HEMBEB. The objection being presented, the member excepted to may or may not respond to the same, in his discretion.'" If he does so, admitting that the objection as stated exists, and the same is a valid and relevant one, the court wiU properly hold the challenge to be sustained; Indeed, in such a case the member himself vriU often express a wish to be excused." If, on the contrary, he does not admit the facts alleged, he may, by a statement or explanation, (which he is 312 always at liberty to make,") satisfy the challenging party that he Is in error and induce him to withdraw his challenge. Tl\us it is not "•Page 116. « See De Hart, 118, 127 ; G. O. 13, Dept. of the Potomac, 1867. "Compare Mann v. Glover, 2 Green, 195. As already Indicated, where a valid ground of challenge exists which the accused, through ignorance, fails to present In a proper form, he Bhonld be so instructed and assisted by theludge advocate or the court as to be enabled to have the full benefit of the same. See G. C. M. O. 19, Dept. of the Columbia, 1882. "That the court cannot properly require him so to respond, see G.,0. 2 of 1858. The mere statement of on accused, not admitted by the member, is not sufficient to support a challenge. See G. C. M. O. 35, Dept. of Dakota, 1884; Do. 42, Id. 1892. The , mere fact that the member does not respond should not necessarily be regarded as an admissidn of the ground of challenge, and the contrary ruling in G. C. M. O. 74, Div. of Atlantic, 1887, is not, as laying down a general principle, concurred in. ** But see pogt, to the effect that- the member cannot be" excused at his own request, but only on a challenge regularly passed upon and sustained. >• " The challenged member may admit and ask to withdraw, or explain." Hongh, (P.) 799. "The usual practice is for the member to rise and admit, or deny the truth of the objection, or to explain it." O'Brien, 240. And see Simmons S 500; Bombay, H., 11 : DeHart, 115. In lie civil practice, opportunity is afforded to Jurors, in Justice to themselves, to explain away any Injurious imputations involved in the challenges as offered. Thus In Taylor «. Greely, 3 Greenl. 204, the court say: — ^"The testimony of the Juror him- self U to be heard in explanation of the language or conduct imputed to him." In UcB^dden «. Com., 23 Pa. St., 17, it is observed : — "A Juror, like every other person pnbllcly assailed, ought to be heard in vindication of his character. 440593 0-42-14 210 mhjtaby law xsd pbecedbnts. unusual for a member objected to for prejudice against the accused, to dis- claim having any such feeUng or bias as Imputed and to state that he Is aware of no reason why he cannot judge Impartially In the case. Upon such a declaration made in evident good faith, the accused will, ta the majority of cases, cease to press his objection." T-R .TAT. OF THE CHAIiLENGE. But where the statement of the member falls to satisfy the challenging party, and the objection is Insisted upon; or where the member maizes no response to the challenge, It Is open to the party either to submit the question of the validity of the challenge to the court simply uiwn his own statement and that of the member. If any, or, (as is in general the proper course where the member fails to make an admission or to state facts,) to proceed to try the challenge by the offer of evidence," like any other issue." This evidence may include not only the testimony of witnesses, as well as such documentary or other written proof as may be relevant," but also the testimony of the member himself brought out upon an examination instituted by the chal- lenging party. 313 That the challenging party is entitled, if he desires It, to subject the challenged member to an examination by interrogatories, in the same manner as a juror may be subjected to examination in the criminal practice," is well settled." Some of the authorities Indeed refer to this examination as properly had upon oath, like the examination upon the voir dire in the civil courts.*" But our military law makes no provision for swearing the member under the circumstances ; and, in the absence of such authority, it Is clear that for the court, before it organizes, to assume to administer to him the oath of a witness, or any oath, would be a proceeding without warrant of law." But, "O'Brien, 240. " A court should not allow a challenge " upon Its mere assertion by the accused without proof, and in the absence of any admission on the part of the member." DieEsr, 101. TUe admission of an objection unsupported by evidence and " without any reason shown beyond a mere supposition or prejudice of the prisoner, tends in effect to introduce Into courts-martial the allowance of peremptory challenge — a practice wholly unknown to our military code." G. C. M. O. 66 of 1875. ■■ That the proceeding upon a contested challenge is a trial upon an issue joined, see Clark V. Van Yracken, 20 Barb, 281. "A challenge raises an Issue of fact, and unless the fact be admitted by the other side. It Is to he determined, like any other Issue, upon competent evidence." Gen. Merritt, in Q. 0. 42, Dept. of Dakota, 1892. » See Simmons S 500 ; De Hart, 116. That any relevant and proper testimony Is com- petent to show the true state of mind of a challenged juror where his statement or per- sonal examination has failed to disclose Mas on his part, see Blckam v. Pissant, Coxe, 220 ; State v. Benton, 2 Dev. & Bat., 212 ; People v. Beyes, 5 Cal., 347. "As to the mode of proving a challenge, the law of evidence is the same as In other cases. Proof may be made by records, papers, or witnesses, either to support the challenge or to disprove It." State V. Spencer, 1 Zabr., 199. " " In order to arrive at the condition of the person's mind who Is otCered as a Juror, a party is permitted to ask of the person himself questions the answers to which may tend to show whether he is prejudiced or not In the cause which he Is about to under- take to decide." People v. Beyes, 5 Cal., 349. And see Lohman v. People, 1 Comst 384 ; Justices V. Plank H. Co., 15 Ga., 54 ; State v. Benton, 2 Dev. & Bat. 222. " O'Brien, 240; G. O. 21 of 1853. In this Order and also In G. O. 8, Div. Pacific, 1870, the proceedings of a trial were disapproved because the right of personal examination of the member was denied to the accused by the court. « See O'Brien, 239 ; Ives, 92 ; G. O. 35 of 1867. «"The court must decide on the aasertion of the party challenging, of the officer challenged, and of the witnesses examined ; for It has no authority to receive evidence on oath, before the administration of the prescribed oath to the members." Simmons I 500. And see, to a similar effect, De Hart. 116 ; Diomsr, 101. At this stage ludeed of the proceedings, no oath whatever can legally be administered either by the president or judge advocate. [But noto such oath might perhaps be regarded as authorized under s. 4. c 272 of the Act of July 27, 1862.] ' MILITABY LAW AND PKEOEDBNTS. 211 though not sworn as such, he is exammed as-a witness," and the examination Is therefore to be governed by the rules which specially govern the examination of a juror under similar circumstances, the principal of which is that questions shall not be asked the answers to which will tend to criminate the party, or will directly attach to him disgrace, as by the confession of dishonorable 314 or disreputable acts." The exemption, however, from answering such questions is held, in the case of a juror, to be a perswMl prwilege which may be wawed." As to the other witnesses who may be ofEered, these also can not be sworn ; no authority to swear witnesses at this stage being conferred by the code of Articles or other statute." It is to be added that the other party, if he thinks proper to contest the chal- lenge, may take paxt in the examination by putting questions in the nature of cross-interrogatories to the member or witnesses. He may also Introduce counter- witnesses or other evidence relevant to the issue." It is very rare, however, that the trial of a military challenge Is thus far extended. Either party, or both parties, may make argument upon the evidence. CHAliLENGE BT THE JlTBaE ADVOCATE. The challenges desired- to be offered on the part of the prosecution, if any, are in practice Interposed after the full exercise of his rlght.by the accused," and in a similar form and manner. THE DELIBERATION BY THE COURT. The trial of the challenge, which is Commonly conducted in open court, having been completed, the court Is in general cleared for deliberation upon and determination of the matter of the objection, — ^a proceeding, it may be remarked, for which it Is not required to be, and is not in practice, sworn." Where indeed the ground of challenge, 315 admitted or shown to exist, is manifestly valid, (as in the case of a chal- lenge distinguished, as will hereafter be indicated, in the civil practice as a challenge "for principal cause,") the court need not go through ^lie form of clearing, but may well pass upon and allow the challenge at once as they sit Upon a clearing or deliberation, the challenged member usually and properly withdraws from the court, that is to say, does not remain with it:" if however he stays, he takes no part in the discussion or decision. His remaining cannot indeed affect the validity of the proceedings, but his withdrawal is desirable as " " The Juror becomes merely a. witness, and he may be examined as a witness. He will be exempt from answering such questions as witnesses are exempt from answering, and from no others." Justices v. Plank S. Co., 15 Ga., 55. « O'Brien, 239 ; G. O. 21 of 1853. "A Juror may be asked such questions as do not tend to his infamy or disgrace." 5 Bac. Abr., 367. " It cannot be asked a Juror if ^e has been either charged with, imprisoned for, or convicted of, a (;rime." Jones v. State, 2 Blackf. 477. The exemption of a member of a court-martial from being required to give criminating testimony should be held tO' include testimony implicating him either In a military or a civil offence. If the Inquiries addressed to the member by the accused bring out unfavorable opinions of the accused himself, these, if given in good faith, are " official and privileged.". G. O. 2 of 1858. It Is added in this Order that if an answer " goes too far " in injurious ref- erence to the accused, " the court should Interpose." " Boon V. State, 1 Kelly, 622 ; Sprouse v. Com., 2 Va. Cas., 375. " [But see now the provision of the Act of July 27, 1862, noted on the prevlons page.] « Compare State v. Spencer, 1 Zabr., 199, as cited In note ante. " Hough, 944, note ; Id., (A.) 45 ; De Hart, 125. " See De Hart, 116. »i Hough, (P.) 779; Id., (A.) 48; Simmons §500; Kennedy, 51; Napier,, 87; GrifBths, 47; Bombay R., ,11 ; Hughes, 42; Macomb, 31; De Hart, 115; Ben£t, 69; Copp^e, 65; Digest, 101, Under the Act of July 27, 1892, the Judge advocate retires here, with the accuaed, equally as at a final deliberation on the Judgment. 212 MXLJTABT LAW AND PRECEDENTS. promoting freedom of discussion "• and may properly be requested by the ocnut. In an early leading case," a member of a general court-martial, for a refoaal, expressed in grossly disrespectful terms, to retire when so requested, was brought to trial and convicted upon a charge of " conduct to the prejudice of good order and military discipline." The member indeed cannot be compelled to 'withdraw against his will, nor will the mere fact of his omitting or declining to withdraw constitute a military offence, but in general his sense of propriety and justice will induce him to retire of his own accord and as a matter of course. That the court, including the challenged member, may consist of but five persons, can constitute no reason why he should not withdraw. That four members of a general court are competent, at this stage of the proceedings, to determine the matter of a challenge offered to a fifth member, is well 316 settled in our law : " the member does not cease to be a member because of being challenged. So, also, two members of a regimental or garrison court may, and must, pass upon an exception taken to the remaining member. But where, of a general court consisting of five members, four have duly allowed a challenge to the fifth member, who has accordingly retired from the court, the four remaining are not competent to entertain a further challenge; -Uiat is to say, three of tlie remaining four cannot legally pass upon a challenge to the other member." In deliberating upon the subject of the challenge as offered, it will be for the court to inquire, first, whether the ground of objection advanced is a valid one ; secondly, whether its existence in the particular case is established. What are valid grounds of challenge at military law will be considered presently. As to the question of the suflBciency of the proof, the court will properly bear in mind two principles: 1st, that the burden of maintaining the challenge, and establishing that the member does not stand indifferent," rests upon the chal- lenging party, and that a member, like a juror, is presumed to be qualified till he is shown to be the contrary; " Zd, that where any reasonable doubt ex- ists of the Indifference of the member in the case to be tried, it will be safer and in the interest of justice to sustain the objection and excuse him." And this although the court may thus be reduced below the legal minimum and it may not be convenient to recomplete it. For, the convenience of the service « Simmons ! 500, (edit, of 1863.) Attorney General Gushing, In remarking (7 Opins., 284,) upon " the course to be pursued by an arbitrator, Judge, or other member of a plural body," when for any legal cause "precluded from participating In the decision" of such a body, observes that " it Is generally held that in such case he ought not to participate in the deliberation which precedes the decision. The reason assigned," he adds, is that "if the person who has not the right to concur In the decision, participate in the deliberation, or be so much as present even, it is Impossible to know wheth» he has or has not influenced the result." " See G. O. 1 of 1858. "O'Brien, 240; DiSest, 88. And see G. O. 24, Dept of the Platte, 1869: G. C. M. O. 10, D^t of Texas, 1873. "This was actually done in one case; the proceeding being of course disapproved by the reviewing authority. See G. C. M. O. 72, Dept of Dakota, 1882. «The law aims to exclude bias, &e., from a jury so far as the Infirmity of human nature and the imperfections of human institutions will permit" State v. Benton, 2 \ Bat 215. "Exact and absolute impartiality Is not to be had. The utmost that can be attained is that Jurors should be as impartial as the lot of humanity will permit." Com. ». Hill, 4 Allen, 591. And see Burr's Trial, 370. 416. "x pwnuv. "U. S. V. Watklns, 3 Cranch C., 579; State v. Benton. 2 Dev & Bat. 214- Peonle « r.!■B^rt^T7=,^:31r• ^""' '' «'-»■ ^^^ = ^«" - -opit "if^: ^n::. nM^C^*^^ ^ ^^^'' "^' *• ^ ^°- "• *'""'""• " ^"'"•' 223: Hole V. People, MHJTABY LAW AND PRECEDENTS. 213 is less to be regarded than the obligation to administer justice. The ma- jority, of military -writers certainly lean rather in favor of snitportlng 317 challenges than rejecting them," and the proceedings of courts-martial have been not unfrequently disapproved in General Orders for the reason that valid objections to members have failed to be allowed." THS SETEBMINATIOiar OF THE CHAXJiENOE. After such free inter- change of views as may be desirable, a vote, in. the manner prescribed by Art 95, is taken upon the objection;"^ the question to be voted upon being— Shall the challenge be allowed? A majority of course decides. Where there is a tie, it .should be held, upon the analogy of all deliberate assemblies," that the objection is not sustained ; and to this effect has also been the practice of the civil courts." Simmons" indeed declares that "when the votes are equally divided the decision is given In favor of the challenge being allowed," and this statement has been repeated by O'Brien." In the absence, however, of positive law or regulation, such a rule could rest only upon usage, and no i^ge to this efCect can be said to exist in our service. So, the British rule that where there is a tie vote upon a challenge, the president of the court shall have a casting vote,"1ias not — ^it need hardly be observed — been adopted in our law. In the procedure of American courts-martial, a tie vote upon an objection to a 318 member, as upon any other proposition, is no i>ote, i. e. is not the indis- pensable majority, and the objection is not sustained." PBOCEBTTBE XTPOIT A DECISIOIT. The court tuiving come to a conclu- sion uiH>n the cause of challenge assigned, the doors, (the court having cleared,) are opened, and, the parties and the member who had retired being present, the decision is announced by the president. If it is that the challenge is not sus- tained, the member retakes his seat and the proceedings continue in the regu- lar course. If the reverse is the result, and the member is, as it is commonly phrased, "excused," he -withdraws permanently; whereupon the court, if five members still remain, goes on -with its business." If the sustaining of the chal- lenge has reduced the number to four, the court, as it cannot legally proceed, adjourns and reports the fact through its president to the convening authority. The latter, if he deems it- expedient, will issue an order adding to the court a ■» Kennedy, 54; Napier, 94; De Hart, 115; Ben«t, 69; Copp«e, 67; G. C. M. O. 66 of 1875 ; G. O. 13; Dept. of the Potomac, 1867. "See G. C. M. O. 82 of 1868; 6. O. 16, Dept. of the Ohio, 1865; Do. 11, Dept of Cal., 1865 ; Do. 13, Dept. of the Potomac, 1867 ; Do. 14,^ Dept. of Ija., 1868 ; Do. 20, Dept. of Arizona, 1870; Do. 45, Dept of the South, 1873; Do. 5, Dept. of the Gulf, 1873; Do. 36, 47, Dept of Dakota, 1874; Do. 15, Id., 1875; 6. CM. O. 10, 71, Dept of Texas, 1873 ; Do. 44, Id., 1875 ; Memo.^ Dept. of the Columbia, June 19, 1874. But "while courts are prone — and Justly so — to deal liberally with prisoners in the matter of challenges. It should not be forgotten that this right to protection may degenerate into a means for annoying officers against whom prisoners are prejudiced." G. C. M. O. 35, Dept of Dakota, 1884. (Gen. Terry.) n See Fipon & Col., 51. ""'An equal division upon a question is a decision of It in the negative." This, on the ground that — " the votes given for the negative " are " sufficient In number to neu- tralize the votes given on the other side." Cushing, Law and Practice of Legislative Assemblies § 303. «» See U. S. «. -Watkins, 3 Cranch C, 443. « { 497. And to this effect Is now the statute law, as to challenges of members other than the president Army Act S 51. (5.) "Page 240. «>Anny Act f 53. (8.) "See DiOBST, 747. "After a challenge Interposed by the accused has been acted upon, it is proper for the Judge advocate to ask him If he has any " further objections." Q. C. M. O. 67, Dept of Dakota, 1882. 214 TUTT.TTABY LAW AND PEECEDENTS. member or members, or detailing a new court altogether.'* As already Indi- cated, members thos added will be liable to challenge in the usual manner; and, In the event of a new court being appointed, embracing any of the members of the former court, these will become again subject toi x:hallenge in the same manner as when upon the original detail." A UEUBER EXCUSABLE ONLY UPON CBALLEITOE. It remains to remark that the proceeding authorized by Art, 88 is the only one by which a member may be relieved from attendance by the court. Nothing is now better settled in our military law than that, except upon a challenge duly made and sustained, the court is not empowered, for any reason or purpose, to ex- 319 cuse a member ; " nor, of course, can a member in any case excuse him- gelf." Simmons" and Kennedy" have sanctioned the court's permitting a member, excepted to for personal prejudice or hostility, to withdraw volun- tarily if he desires it, without his objection being regularly passed upon ; and their view has been inconsiderately repeated by O'Brien," and De Hart" Our Article, however, clearly conveys no authority for the excusing by the court of members at their own request, and such action has been repeatedly condemned In General Orders." Where an officer detailed upon a court-martial deems him- self disqualified, from prejudice or otie^wlse, to sit upon a particular trial, he should, if there is time, communicate the facts to the convening authority and ask to be relieved." Where this cannot be done prior to the trial, the member, before being sworn, should make known the fact of the objection either directly to the party interested in raising the same," or preferably to the court in the presaice of the parties, so that one or the other party may formally take the exception unless he elects to waive it.'° III. THE GROUNDS OF CHALLENGE. CLASSIFICATION. At the common law, the causes for challenge to Jurors were divided into four classes: those propter honoris respeotum, (on account of a respect for nobility;) propter delictum, (on account of 320 crime;) propter defectum, (on account of defect, that is to say personal or legal Incapacity ;) and propter affeetpm, (on account of favor or bias.)" "In the BritlBh practice, members excused or challenged may be replaced by offlcer^ detailed to attend the court for the purpose and called "waiting officers." Eules of Procedure § 17, (D.,) and Second Appendix. At an early period In our army a similar purpose was served by "supernumerary" officers. De Hart, 115; O'Brien, 240. This practice has been referred to in Chapter XII. "De Hart, 8». n DioMT, 108. And see G. C. M. O. 27, 83, Dept. of Dakota, 1881 ; Do. 13, Id., 1887 ; Do. 25, Id. 1889; Do. 62, Id.. 1889, and 26, Dept. of the Mo., 1889, (where a member was excused to act as counsel for the aseused;) Do. 80, Dept. of Dakota. 1886 (.where the member, a surgeon, was excused to enable him to attend to his medical duties.) It does not affect the absolute illegality of the exercise of the power that the accused does not object. Do. 31, (H. A.,) 1887. "<■>-"=«" « "J^-n^.' ^^, ?'^*- "' ** ^^"''' ^^^^' °°- '^8. Dept. of Dakota, 1892. Contra, see SackTiIle's Trial— a precedent without authority in this country " § 500. » Page 54. '• Page 239. " Page 118. «"n^A°•.^^°^^ "^^= °°- ®^' °^P*- °' *"« ^«"e. 1871; Do. 48, Id., 1875- (J C ot'^d: Zi. "■ °- ''• '"''''■ '"''''"' ^'""*^' "'^- ^""^ - «• <=• "• O. 26. Dept. »• See G. C. M. O. 73, Dept. of Texas, 1873 » See G. O, 66, Dept of the Platte, 1871. "• Co. Litt. 156. b. And see Simmons § 502. MILITARY LAW AND PEECEDENTS. 215 CHALLENGES FSOFTEH HONOSIS BESFECTUM. This kind of chal- lenge, says C!oke, could be taken only to a " peere of the realm or lord of par- liament, for these, in respect of honor and nobilitle, are not to be sworn on juries."" And he adds: — "When any of the commons is to have a tryall, either at the King's suit, or between partie and partie, a peere of the realm shall not be impanelled in any case." *" It need hardly be observed that no challenge, answering to or resembling this one, is known to the procedure of the courts of this country, where every man is the peer of every other man before the law. CHALLENGES FROFTER DELICTUM. The term " delictum " refers to an infamous crime, that is to say a crime aflS^ing infamy, in the legal sense, upon the offender, — as a capital crime or a felony." Of the crime which is the ground of challenge the juror must have been duly convicted, and the proper proof to sustain the challenge is the record of such conviction." An instance of a valid challenge of this class would be most rare in the military practice, and no case is known in which one has been Interposed. CHALLENGES FBOFTER SEFECTTTM. Challenges of this class are of two kinds : 1. Those based upon some physical or mental defect ; 2. Those based upon an incapacity created by law. 1. Of the former class — "unsoundness of mind, or such defect of the mind or the organs of the body as render him Incapable of performing the duties of a juror,"" as also sickness, deafness, and Intoxication," are specified by the authorities as causes properly exempting a juror from serving, and con- 321 stituting ground of challenge. So, at military law. Hough " states it is one of " the legitimate causes of challenge that the officer from age, deafness or other infirmity, is incompetent to discharge the duties of a member." 2. The legal incapacity upon which the second class of challenges propter defectum is based is one created by statute or established by the common law. Certain of the incapacities at common law, as alienage and minority, are adopted by the statutes of most of the States as legal disqualifications in the case of jurors, and, under the provisions of Sec. 800, Rev. Sts., the same facts would be held to be valid grounds of challenge in the federal courts. But neither alienage nor minority would be recognized as such grounds at military law, where neither the age, nativity, nor civil status of officers is matter of positive statutory regulation, and where it is required of members of courts-martial in general simply that they shall be commissioned officers, and shall have military rank.™ If indeed a member has not been duly com- missioned or appointed, or if Us commission has been vacated by operation of law under Sec. 1222 or 1223, Rev. Sts., by his accepting or exercising the functions of a civil office, or his accepting or holding an appointment in the diplomatic or consular service, he will be challengeable propter defectwm. So, if he has not military rank— as would be the case if one of the permanent pro- s' Co. Litt,, 156, b. 8» Id And see 2 Gabbett, 391. M Co. Lltt., 158, a ; State v. Squalres, 2 Nev. 230 ; Tytler, 225 ; Adye, 176. » 2 Hawkins, c. 43, s. 25 ; Tytler, 225 ; Adye, 176. *" State V. Squalres, 2 Nev. 230. "Schoeffler v. State, 3 Wis. 828; Jesse -u. State, 20 Ga. 164; Pierce v. State, 13 88 Page 943 note. " The members should not be deaf, or blind, or laboring under any illness that may prevent their constant attendance." Id., 48. And see D-AguUar. 102. ™ Chapter VII, ante. 21g MILITAHY LAW AKD PBECEDESTTS. feasors of the Military Academy were to be detailed upon a coiirt-martial "- lie would be similarly challengeable. Further, a challenge of this class will be valid In a case of an officer in- capacitated by statute from sitting upon the particular or any court Thus an officer of the regular army detailed upon a court for the trial of militia, or an officer of marines placed on a military court when not detached for service with the army, or a retired officer sitting upon any court-marUal, would be subject to challenge propter defectum. CHAUiENGES PBOPTEB AITECTTJM. This is by far the most 322 numerous class of challenges taken to jurors, and so to members of military courts. It Includes all the grounds and facts of objection from which an inference of bias or partiality on the part of the Juror or member must be, or may be, Inferred. Challenges for principal cause and for favor. Here may be noted an old distinction in the law of challenge, especiaUy applied to chal- lenges propter affectum,'' by which challenges to jurors are distinguished as (1) chaUenges "for cause" or "for principal cause," (sometimes termed "principal challenges,") and (2) challenges "to the favor," or "for favor." Of " principal " challenges of this class the cause alleged is a specific fact of such a nature that, being admitted or proved to exist, it raises per se, and necessarily, a presumption of bias or prejudice which cannot be rebutted and the effect of which is absolutely to exclude the juror. Of sucb causes, among the most conspicuous are the foUowlng ;— declared enmity ; fixed and decided opinion on the merits; having been summoned as a material witness on the merits; relationship within a certain degree; direct personal interest in the result of the trial ; having served on the grand jury which found the in- dictment ; having sat upon a former trial of the defendant ; having conscientious scruples which will influence a verdict. Of challenges of this class " for favor," that is to say for being in favor of one side or the other, the grounds are not such as, of themselves, imply bias ; the question of their sufficiency in law being wholly contingent upon the testi- mony, which may or may not, according to the character and significance of all the circumstances raise a presumption of partiality. Such are chaUenges founded upon the personal relations of the juror and one of the parties to the case ; their relationship, when not so near as to constitute " nrinclpal cause ;" the entertaining by the juror of a qualified opinion or Impression in regard to the merits of the case; his having an unfavorable opinon of the character or conduct of the prisoner; his having taken part in a previous trial of the prisoner for a different offence, or of another person for the same or a 323 similar offence; or some other incident, no matter what, (for the grounds of challenges " to the favor " are as various as the infiuences that affect human feeUng,") which, alone or in combination with other incidents, may have so acted upon the juror that his mind is not " in a state of neutrality " between the parties. In brief, as remarked by the court In a leading case, the distinc- tion between these two classes of challenges Is that, in the former, the con- clusion that the juror is incompetent is a conclusion of law on ascertained facts ; "> See Chapter VII, ante. " It may be remarked that the challenges of the three classes already noticed — propter hvrwris respectum, propter delictum, and propter defectum, are all properly " principal " challenges ; the privilege, crime, or incapacity, in any case, needing but to be shown to exist to substantiate the objection as a matter of course. ""A challenge to favor applies to any man where there Is sufficient reason to suspect he may be more favorable to one side than to the other." Rollins v. Ames, 1 N. H. 350. MILITARY LAW XNH PRECEDENTS. 217 in the latter, the question whether he Is so or not, Is a question of fact to be determined by the particular circumstances In evidence."' Special grounds. Keeping this distinction in mind as of value in iMssing upon military as well as civil cases, we will proceed to consider the chief grounds of challenge of the present class, — propter affectum, — ^wnich, as has been said, comprises the great majority of the exceptions which come to be taken to members of courts-martial. Some of these will be found to be pecu- liar to the military practice, but the greater part are common to that both of civil and military courts. These grounds of exception will be examined in order under the following heads: — ^1. Opinion formed or expressed; 2. Interest; 3. Relationship; 4. Per- sonal prejudice or hostility; 5. Intimate or peculiar personal relations; 324 6. Having taken part in a former trial or inquiry; 7. Being a material witness in the case; 8. Miscellaneous grounds. OFnriOlir formed OB expressed — Expressed opinion — ^It need not proceed from ill will. Whether an opinion formed and expressed upon a case shall be held to afCect the competency of a jurior, or a member of a court- martial, properly depends upon its nature and extent, irrespective of any per- sonal feeling of ill will, or the reverse, on the part of the juror or member ; " such personal feeling in fact, when entertained, being treated as a separate and distinct ground of challenge. Must be positive and definite. The opinion, properly to disquali^ the jurior or member, should be a positive and unqualified one. As remarked by the court in an adjudged case," an opinion, necessarily to exclude a juror from the panel, must be " absolute, unconditional, definite and settled, in distinction from one which is hypothetical, conditional, indefinite and uncertain. The mind must be, for the time being, settled and at rest upon the question of the prison- er's guilt, or upon the question to be tried.'"* Such an opinion would ordi- i" People V. Bodlne, 1 Dento, 308. Aad see Freeman v. People, 4 Id., 9 ; People v. Stoat, 4 Parker, 110 ; Mann v. Glover, 2 Green, 204. " Principal " challenges were heretofore specially distinguished in practice from chal- lenges to the favor In that while the former were passed upon by the court, the latter were determined by sworn " triers " — ^two indifferent persons, usually members of the bar, or Jurymen already found competent — ^who, being designated for the purpose by the court, heard the evidence pro and oomtra, and decided, as a question of fact, whether the juror was biased. Now, however, in a considerable number of the States, as also In the fed- eral practice, (see Sec. 819, Rev. Sts.,) triers are done away with, and all disputed challenges are decided by the iourt. For this reason Thompson, Law of Trials, vol. 1, p. 47, is of opinion that " the dis- tinction between these two kinds of challenges has so tax disappeared In this country that it may now be disregarded." In illustrating, however, the science of this branch of the law. It is still of Interest and of use. " The opposite common law doctrine that the expressed opinion, to constitute .valid cause of challenge, must proceed from ill will or malice, (King v. Edmonds, 4 B. & Aid. 471,) has (except in New Jersey — State v. Spencer, 1 Zabr. 198; State v. Fox, 1 Dutch., 588,) never prevailed in this country. "People V. Stout, 4 Parker, 109. "The decided opinion must of course be serious, not "jocular." Monroe v. State, 23 Texas, 210. It must also be one made in good faith, not for the purpose of getting rid of serving as a Juror. U. S. v. DeTaughan, 3 Cranch C, 84. Where a Juror, in expressing a positive opinion on the merits, had also expressed a wish for the success of one of the parties to the suit, the court, in holding the opinion a sufficient ground for setting aside the Juror, added : — " Much more is the actual wish or desire that one party should so prevail, a good cause. Such wish or desire is partiality Itself, not merely evidence of partiality." Justices v. Flank E. Co., 15 Ga. 64. 218 MILITAKT? LAW AND PEECEDENTS. narlly be one either based upon personal knowledge of the facts, or acquired from some reliable source— as from a party to the case, from hearing the evi- dence upon a previous trial or preliminary investigation, from conversations with witnesses, &c. But if the opinion be positively fixed and definite, it is not essential that the source from which it is Imbibed should be an 325 authentic one. If the mind of the juror or member be possessed by a clear and settled opinion, it should be held to disqualify him, however or whencesoever derived." A decided opinion, it may be added, need not be ex- pressed In a public manner: Hough" mentions a case of an opinion, casually expressed In private, which was held sufiicient ground of challenge. Transient opinion or impression, insufficient. On the other band, an Im- pression or cursory opinion up«n the merits of a case or the guilt or innocence of the accused, which has taken no decided hold upon the mind, and will fail to Influence the judgment in the presence of sworn testimony, will not, as it is held generally by the authorities, properly exclude a juror or member of a mili- tary court, upon challenge. Such, chiefly, are the slight impressions or shift- ing opinions so frequently formed upon public rumor or common report, as well as those gathered from such material as the gossip of acquaintances, casual conversations with persons who were not witnesses ;and have no personal knowl- edge of the facts and, especially, articles in newspapers." In a case in New York, the court, referring to impressions derived from the source last mentioned, re- mark : — " It is quite obvious that if jurors are on such grounds to be 326 rejected, it will be impossible at the present day to administer justice in cases sufficiently exciting to inspire a newspaper paragraph." '" HTpothetical opinions. Of this general description are also the opinions characterized In the books as " hypothetical ; " that is to say, opinions derived chiefly from rumor, hearsay, or other Imperfect information, which, proceeding upon the supposition " that the facts are as they have been represented or as- sumed to be," take, when expressed, a hypothetical form. As where the juror declares that he has formed an opinion, If what he has heard is true ; or. If what he has heard or read is true, he believes the prisoner to be guilty or Inno- cent, as the case may be. This belief, the continuance of which is conditional " " It is the preconceived opinion ttiat renders liim incompetent, and not tlie source from wlildi tliat opinion is formed or derived." State v. Gillicls, 7 Iowa, 307. If the opinion be decided, it is no matter that it be formed " from the report or hearsay of others. Many men form their opinions from the statements of their neighbors in whom they have confidence. Indeed, there are many men who have more confidence in the expressed opinions of their intelligent neighbors than they have in their own" Key. nolds V. State, 1 Kelly, 229. The fact that a juror has made up his mind on fcwujl- cient grounds is held especially to Indicate a disqualifying bias. See 1 Burr's Trial 370 "Precedents, 715. "The general rule that a Juror must be superior to ail exception "must not be car- ried to such a length as to run the risk of defeating the ends of justice by excluding from the panel persons who have expressed an Indefinite opinion of the merits of a case, w «> Sanchez v. People, 4 Parker, 535. And see State v. Medlicott 9 Kana 280- Peo pie V. Mather, 4 Wend.. 280; People „. Bodlne, 1 Edmonds 56 "P^pfe" Have; Id MILITARY LAW AND PEECEDENTS. 219 upon the proof on the trial according with the information of the Juror, Ig held, i& general, not to constitute a sufficient ground of challenge.' Test of intermediate opinions. Where the opinion of the juror is some- thing more than slight, but at the same time is not positive, being in fact an opinion falling between the two extremes described, this test of its sufficiency to exclude upon challenge has been applied by the courts, viz.-^mhether it is so fixed as to require evidence to remove it. If the answer of the juror when interrogated on this point, or the drift of the evidence on the hearing, Is In the affirmative, it is held to be generally safer to conclude that his mind 327 is so far preoccupied as to render him incompetent." In a case In Cali- fornia,' where a juror stated, upon challenge, that he had formed an opinion which it would require evidence to remove, the court observe: — "In the mind of this juror " the prisoner " is held guilty before a single witness testifies against him; reversing the rule of law that presumes a person Inno- cent until his guilt is prima, facie established by evidence." But the drift of the more recent rulings Is to the effect that, though the opinion of a juror be so far fixed that it will require evidence to remove it, yet if he feels assured, and so declares or makes oath, that he can Impartially try the case and give a verdict in accordance with the testimony on the trial, he will properly be accepted as competent, and this especially where his opinion has been formed upon report or rumor.' The opinion should be as to guilt or innocence. It is a general rule that the opinion of the juror, to affect his competency, should be one upon the merits of the case, that is to say — where a verdict is to be rendered — ^upon the guilt or Innocence of the accused.' Thus, as he held in several cases, a belief merely that a homicide or a murder has been committed is not an opinion as to the guilt of the party charged." Nor, as ruled in a further case,' Is 328 a belief, that the prisoner killed the person for whose murder he is Indicted, such an opinion ; for " the killing," as remarked by the court, ^ In State v. Sater, 8 Iowa, 420, the hypothetical opinion held not to .disqualify the Juror was — " if what he had heard should be proved upon the trial, he had an opinion made up." In Burk v. State, 27 Ind., 432, the court observe of a similar declaration: " It was equivalent to saying — ' If the facts shall be as I have heard, then I have an opinion ; if not, then I have none ; and I have no opinion as to the truth of those facts.' " Upon the general principle that hypothetical opinions do not disqualify, see further — State V. Potter, 18 Conn., 166 ; People v. Mather, 4 Wend., 243 ; Durell v. Mosher, 8 Johns., 445 ; People v. Fuller, 2 Parlter, 17 ; People v. Stout, 4 Parker, 71 ; Mann v. Glover, 2 Green, 201 ; State v. Benton, 2 Dev. & Bat., 213 ; Haugen v. Ey. Co., 53 N. W., 769 ; State v. Sheerin, 12 Mont., 539 ; Thompson, Law of Trials, vol. 1, p. 74. aCancemi v. People, 16 N. T., 501; Pahnestock v. State, 23. Ind., 231; Moses v. State, 10 Humph., 456 ; Cotton v. State, 31 Miss., 504 ; Alfred v. State, 37 Miss., 296 ; Olive v. State, 11 Neb., 1 ; Vance v. State, 19 S. W., 1066 ; People v. Shufeldt, 61 Mich., 237 ; Halsted v. Manhattan Hy. Co., 11 N. T. S., 44. But where the declaration of the juror was to the effect that, while it would require some evidence to change his opinion, the same would readily yield to evidence, he was held to be competent. Guetig v. State, 66 Ind., 94. » People V. Gehr, 8 Cal., 359. And see Sam v. State, 13 Sm. & M., 190. * State V. Williamson, 106 Mo., 162 ; Blair v. State, 5 Ohio Cir. Ct., 496 ; Greenfield v. People, 74 N. T., 277; Com. v. McMillan, 144 Pa. St., 610; Washington v. Com., 86 Va., 405 ; State v. Dent, 41 La. An., 1082 ; State v. Baker, 33 W. Va., 319 ; Keed v. State, 32 Texas, Cr., 25 ; People v. Wah Lee Mon., 59 Hun., 626 ; Thompson, Law of Trials, vol. 1, p. 78. And see Guetig v. State, noted above. ^ Where the juror entertains a decided opinion as to guilt or innocence, it Is held to be unnecessary, and in fact Improper, to ask him whether It, (the opinion,) Is that the prisoner Is guilty or innocent. State e. Shelledy, 8 Iowa, 503 ; People v. Williams, 6 Cal., 206. " See O'Brien v. People, 48 Barb., 274 ; State v. Thompson, 9 Iowa, 188 ; Cargen v. People, 39 Mich., 549. » Lowenberg v. People, 27 N. Y., 336. 220 MHJTABY lAW AJTD PRECEDENTS. "being but one element of the crime, Is consistent with the prisoner's Inno- oence of nmrder." A general unfavorable opinion of the prisoner as a bad man has been held insufficient per se to dlsquaUfy a juror ;' and the same bas been held as to the entertaining of such an opinion in regard to persons In general when charged with crime,* or in regard to violence and crime In generaf An opinion upon a question of Umd involved in a case vrill or will not dis- quall^ a juror or member, according as it does or does not amount to an opinion upon the guilt or innocence of the accused. A Juror or member who was of opinion that the act charged was not a crime or offence would properly be held incompetent on challenge." So a fixed opinion that a statute under which a party is indicted Is unconstitutional must necessarily disqualify a juror, since it Involves a conclusion that he is not guilty in law ; " but an opinion that the statute Is constitutional and in force has been held not to affect the Juror's competency, since it is merely an opinion upon an abstract legal ques- tion." Similarly It was held no objection to Jurors that they thought the law under which the prisoner was accused " a good law ; " for, as the court remark, " such opinion has no teudency to prove or disprove the issue." " Where a juror had no opinion, or only a hypothetical opinion, on the merits. It was held that the fact that he had made up his mind as to the pumishment proper to be inflicted on the prisoner In case of a conviction, did not affect his competency." 329 Effect of personal disclaimer of bias in connection with opinion. The assertion of a juror under examination that his opinion in regard to the case is not s^ish as to influence his action on the trial will properly carry considerable weight except where such opinion is one of a decided character, as where It will require positive evidence to remove it. In that event his per- sonal declaration that the opinion will not bias his Judgment or affect his verdict, will not In general, — it has frequently been held, — avail of itself alone to remove the objection taken to him upon challenge." But the authorities are not uniform upon this point, and the effect, as above noticed, of sundry of the more recrait rulings is to accept the juror where his disclaimer is a confi- dent one. In a case of a challenged member of a court-martial, while a disclaimer by him of bias will always be deferred to with respect, the same — it is believed — » ManToe v. State, 23 Texas, 210 ;• People v. Mahoney, 18 Cal., 180 ; Anderson v. State, 14 Ga., 710; G. C. M. O. 44, Dept. of Cal., 1883. Otherwise, however, where such opinion bas become so fixed as apparently to bias the mind. See WUlls v. State, 12 Qa., 444. • People V. Reynolds, 16 Cal., 129. "Davis V. Hunter, 7 Ala., (N. S.,) 135. " 1 Bishop, C. P., § 917 ; Com. v. Bnzzell, 16 Pick., 153. " Com. V. Austin, 7 Gray, 51 ; Pierce v. State, 13 N. H., 536. "Com. V. Abbott, 13 Met., 120. "McNaU 0. McClure, 1 Lans., 32. And see U. S. v. Noelke, 17 Blatchford, 554. " State V, BUI, 15 La. An., 114. And see Com. v. Buzzell, 16 Pick 155 "Sam V. State, 13 Sm. & M., 194 j Morton v. State, 1 Kans., 472; Armistead c. Com., 11 Leigh, 663 ; Goodwin v. Blachley, 4 Ind.. 440 ; WiUis v. State, 12 Ga., 447 ; Hudglns v State, 2 KeUy, 176 ; People v. Gehr, 8 Cal., 362 ; Olive v. State, 11 Neb., 1 ; Greenfield v. People, 74 NY., 277. It is " not to be considered as any disparagement of the bona fides ^.^ ^"if ® ^''"'"'^ ^ ^^^ Incompetent notwithstanding such a decUration. WUUfl V. State, to Hudgins v. State, the court offer a natural explanation which, no doubt. acconntB for many cases in which this decUration is made. In good faith, by Jurors:— "The Juror may think himself free from bias or prejudice because he h^bo» no grudge or personal iU wiU toward the accused." MIUTABY lAW AND PRECEDENTS. 221 Will properly fail to convince the court of his neutraUty in the case where it appears that he has recently entertained decided views concerning the crimi- nality of the accused." OPHnON POBMED BUT NOT EXPRESSED. In the great majority of cases of challenge for opinion, the opinion entertained by the juror has natu- rally also been expressed, and thus In fact made known to exist. In a compara- tively few cases only has the question come to be raised whether the mere formation of an opinion, without its being expressed at all, will affect the juror's competency. In CaUender's case," (tried in 1800,) it was held 330 by Chase J. that the juror " must have delivered as well as formed the opinion." This doctrine was affirmed upon Burr's trial, (In 1807,) by Chief Justice Marshall in the following terms:— "The rule is, that a roan must not only have formed but declared an opinion in order to exclude hhn from serving on the jury." " The same view has been taken in some of the subse- quent cases; the ground being mainly that persons are more apt to be tena- cious of and to abide by expressed opinions than those which remain unex- pressed." The opposite, however, vis;:— th&t an opinion once fully formed In the mind, though not stated, will disqualify equally as if declared,— has been held in other and more numerous cases."^ Upon principle, the latter ruling certainly seems the one to be preferred. It is the formation of the opinion which is the material and principal process; the expression is but incidental. The formation constitutes the prejudgment and preoccupation of .the mind; and If the opinion Is already, decided, it scarcely becomes more so by being expressed. Some habitually silent persons do not readily assert their convic- tions ; and some who are secretive brood over them till they become even the more intense for not being uttered. Some again hesitate to declare their sentiments concerning the acts of others, either from an aversion to gossip and scandal, or from a sense of honor and justice which will not permit them to do a possible injury in a case of any doubt, or in one in which there may be extenuating circumstances. Thus the better reasons are deeined to be clearly on the side of holding that the expression of the opinion should not be regarded as essential to disqualify the juror or member of court-martial, upon challenge, where the same is admitted or clearly shown to have been deliberately formed and to be of a decided character. OPINIOIT EOBMED OS EXPRESSED IN THE PBEFEBBINa OP CHABGES. The subject of challenges for opinion may be concluded by notic- ing the class of military cases in which the fact that a member of the 331 court-martial was the officer who preferred the charges has been urged as ground of objection, generally on the part of the accused. In repeated cases, published in General Orders, where it appeared that a member had preferred or initiated the charge, and had done so, not ministerially under the orders of a superior, but after a personal investigation of the facts, and was " See DiOBST, 100 ; G. C. M. O. 66 of 1879. In a case In G. C. M. O. 23, Dept of Dakota, 1888, where a challenged member bad investigated the case, and preferred the charges, it was held that the challenge shoald have been sustained, notwithstanding a disclaimer of present prejudice by the member. "Wharton's State Trials, 697. » 1 Burr's Trial, 44. "Boardman v. Wood, 3 Verm., 670; Noble v. People, Breese, 30. And see State «. Hbrea, 2 Ala., (N. S.,) 277. "State V. Potter, 18 Conn., 172, and cases cited; Com. v. Buzzell, 16 Pick., 156; Batbbnn v. People, 21 Wend., 509; State v. Johnson, Walker, (Miss.,) 399. 222 TMTT.TT AK.Y LAW AND PRECEDENTS. thus actaally the accuser," a challenge offered to him has been held valid; and, where the court has ruled otherwise their ruling has been disapproved." The objection In this class of cases Is aggravated where the member chal- lenged as having preferred the charges is also the person primarily affected by the offence committed,— as where the charge is that his own order was dis- obeyed by the accused," or that disrespect was shown himself," or that his own property was stolen," &c.,— especially as, in such cases, he is also generally 332 the principal, or a material, witness." Here, indeed, an additional objec- tion — that of personal prejudice or hostility — may combine with that of having formed or expressed an opinion. FEBSONAIi PRE JTTDICE AND HOSTILITY. Under this head are Intended to be included: — 1, Decided prejudice not amountiug to positive enmity; 2, Feelings of actual enmity, animosity, malice or confirmed 111 will. Personal prejudice. The term "prejudice," as here employed, Is to be dls- tingnlshed from prejudice in its ori^nal sense of prejudgment. In this sense it has already been considered in treating of opimon: in Its present sense it has reference to a sentiment in regard to the accused personally, i. e. as an individual or as an officer or soldier.". The personal prejudice under consideration may be proved by evidence of any decided unfriendly or unfavorable language, opinion, action, &c., of the juror or member challenged. Thus it was held good cause of exception to a member that he had applied abusive and degrading epithets to the accused; (tt soldier,) on the occasion of his arrest." So, a decided expression of opinion by a inember as to the unfitness of the accused, (an officer,) for any official position was held to charge him with sufficient prejudice to constitute " See construction o£ the terms " accuser and prosecutor," (In Art. 72,) In Chapter VI ; also DiGBST, 100. " " It is difficult to belieTB that an officer who has made a preliminary examination into alleged facts, and has so far satisfied himself of the guilt of the accused as, in effect, to prefer charges against him," (InTOlving here grave offences,) "can bring to the trl&l of the case a mind so free from bias as to ensure to the accused the impartial trial to which he has an undoubted right." G. C. M O. 82 of 1868. (Gen. Grant.) The deliberate preferring of charges by the member was " a most unequivocal cjtpression of opinion." 6. C. M. O. 1, Dept. of Texas, 1880. (Gen. Ord.) And see G. O. 16, D^t. of the Ohio, 1865 ; Do. 14, Dept. of La., 1868 ; Do. 20, Dept. of Arizona, 1870 ; Do. 46, B7, Dept. of the South, 1873 ; Do. 5, Dept. of the Gulf, 1873 ; Do. 36, Dept. of Dakota, 1874 ; Do. 18, Id., 1875 ; G. C. M. O. 13, Dept. of the Platte, 1873 ; Do. 10, .71, Dept of Texas, 1873 ; Do. 44, Id., 1875 ; Memo., Dept. of the Col., June 19, 1874 ; Do. 88, Dept of the Mo., 1883 ; Do. 18, Dept of the East, 1884 ; Do. 2, Id., 1894 ; Do. 44, D^t of Texas, 1893 ; Do. 23, Dept. of the Platte, 1884. See also, in this connection, G. O. 37, Dept 6f Kans., 1864, where the fact that the same court had previously caused to be preferred Against the accused the very charge upon which he was arraigned was held valid ground of challenge to all the members, severally, as being " evidence of the iformation of an opinion " on the merits, and Indeed " tantamount to an expression of that opinion." On the trial of Col. T. H. Gushing in 1811, (Printed Trial, p. 7,) the accused objected to a. member on the ground that he had intended to prefer charges against the accused Identical in part with those in the case. The member admitting the fact, the objection was sustained. "DiMST, 100. " See case in G. C. M. O. 13, Dept of the Platte, 1873 ; also Trial of Lieut Stanley, TT. S. N., p. 323. '■Simmons { 607. » DiOBST, 100 ; G. C. M. O. 51, Dept. of the Col., 1881 ; Do. 19, Id., 1882. »As to the effect of personal prejudices in biasing the mind of a juror, see Mann v. Glover, 2 Green, 203. » G. O. 47, Dept of Dakota, 1874. MHiITARY LAW AND PBECBDENTS. 223 333 ground of challenge." Prejudice may also be, implied from the relation of the member toward the subject matter of the charge, as where the violence or other misconduct for which the accused is to be tried was aimed at the member himself or resulted to his injury." Whether expressed or implied, the prejudice must be of a definite and posi- tive character. A general objection interposed by the accused to a member on account of "some unpleastint circumstances growing out of their official relations " was held in Gen. Twigg's case to bb indefinite and insufficient" FrejudicB of commanding officer. Simmons," (who is repeated by some of the later authorities,") states in general terms that challenges have be&i ad- mitted to members as being the conmianding officers of accused persons, on the supposition that they might as such be prejudiced through "previous im- perfect or ex parte knowledge of the circumstances inducing the trial." It Is quite clear, however, that the mere fact that a member is the commanding officer — colonel, captain, &c. — of the accused is no foundation for a valid chal- lenge." Other Circumstances must be shown fixing actual prejudice on the commander before an objection taken to him can properly be held sufficient. In our practice, the principal instances in which a challenge to a member who was a commanding officer has been sustained have, been those of cases in which either he was the preferrer of the charge or real accuser," or those in 334 which other causes combined to disqualify him — as that he was a mate- rial witness for the prosecution, or the very person against whom the offence of the accused has been committed." That it is in general inexpedient that the immediate commander of an ac- cused, officer or soldier, should be placed upon a court ordered for his trial, la remarked by Simmons and subsequent writers." In small commands, however, it Is sometimes unavoidable. " G. O. 11, Dept. of Cal., 1885. That the objection must be personal Is Illustrated In a case, published In 6. O. 72, Dept. of the E>a8t, 186.5, of a volunteer soldier, where the action of the court In allowing a. challenge to a member on the " absurd " ground that he had a known and avowed prejudice against volunteer soldiers in general, was disapproved by the reviewing authority. So, on the Trial by Military Commission, in 1864, of Milligan and others, page 73, an objection interposed by Milligan to a member who was a volunteer colonel from Mass., — " because he Is from a locality where therte are extreme prejudices against Western men, and he is likely to be in- fluenced by those prejudices," — ^was, of course, disallowed. See in this connection the case referred to In Digest, 77, where the fact that a member had stated that he did not consider the accused officer a gentleman was held a good ground of objection, one of the charges to be tried being " Conduct unbecoming an officer and a gentleman." The sufficiency of this ground, however, may well be questioned. On the trial of Capt. Kelly of the British navy In 1802, (Printed Trial, p. 3-4,) the court sustained a challenge by the accused to a member who had sat on a previous court-martial held for the trial of two seamen of his, (the accused's,) ship, which court, in its judgment, had " conveyed a censure " on the accused. »i Digest, 100. « G. O. 4 of 1858. » g 510. » De Hart, 122 ; Ben«t, 73 ; Copp£e, 65. 1= Digest, 100 ; G. O. 73, Dept. of the South, 1873. " See G. O. 13, Dept. of the Potomac, 1867 ; Do. 16, Dept. of the Ohio, 1865 ; Ives, 91. Simmons (§ 510) writes that a challenge of a member as being a commanding officer should " obviously be allowed " where he has " taken an active part in promoting the prosecution or in bringing forward the charge." See G. C. M. O. 18, Dept. of the East, 1884. '" See Trial of Lieut. Stanley, (U. S. N.) p. 323. >B See — with Simmons S 510 — Harcourt, 110 ; Bombay E., 7 ; De Hart, 122. 224 MILITABY lAW AND PBECEDBNTS. Personal hostility, enmity, or malice. This is a valid groand of chal- leoge equally in the civil and the military practice. In a case in Georgia " the court observe : — " The law requires that jurors should be *' * ♦ not liable to an objection on account of malice^ 111 will, hatred, revenge, . * * ♦ or the llk&" On Burr's trial,*" a certain grand juror vyas objected to for that he " «itertained a bitter personal animosity against " the defendant ; and a senti- ment of this nature being admitted by the juror to exist, the challenge was sustained. That the feeling must be a personal one, directed at the individual, and that it need have no connection with the facts of the particular case, has also been specifically held." Among military authorities, Tytler " mentions " malice or hostile enmity ex- pressed by word or deed against the prisoner," as one of the " causes of chal- lenge impossible to be overruled ;" and other later authorities notice the same as among the decided grounds of exception." The existence of the hostile feeling is generally shown by the language or acts of the challenged juror or member — as his having charged the challenging party with a grave crime ;" his having publicly libelled him ;* his having 335 initiated against him a malicious suit or prosecution," or grave charges on personal grounds ; his having had a serious quarrel or dlflSculty with him in a personal or official capacity ; his having been foiled or antagonized by him In a contest for appointment, promotion, &c. ; his having been in any man- ner injured by the challenging party and consequently cherishing revenge or bitterness against him," &c. In an adjudged case" the point is noticed that hostility once felt but no longer entertained will not properly afCect the com- petency of the Juror. INTEEEST. Personal interest — pecuniary or other — ^in the result of a trial is a cause of challenge which has been chiefly confined to jurors in civil actions. The principle involved, however, Is applicable to criminal cases ; so that a juror or member who has a direct personal Interest in the fact or question involved or to be decided, t. e. to whom any reasonably certain substantial advantage or detriment may result from the event of the proceeding, ought not, if objected to, to be permitted to sit on the court. This ground of challenge has been recog- nized by some military writers," but, except in a single Instance, it is one that is most rarely urged. Claim to promotion. This Instance Is that of the objection sometimes taken by an accused officer to a member, that the latter will become entitled to pro- motion on account of seniority, upon the accused being dismissed the service." This objection is especially apposite in cases where a sentence of dismissal is mandatory upon a conviction of the offence charged. It may, however, also properly be made in a case where a dismissal may legally be Imposed In the discretion of the court, and where, in view of the nature of the charge, " Monroe v. State, 5 Ga., 142. " Vol. 1, p. 41-43. " Brlttain v. Allen, 2 Dev., 120. "Page 225. «See Simmons § 503; Kennedy, 54; Maltby, 30; Macomb, 31; O'Brien. 238. 239; Ives, 91. " Palmer v. Bogan, Cheves, 52. "Lewis V. Few, Anthon, 75. « Co. Litt., 157, b. ; People v. Bodine, 1 Denio, 305. "See Coppfe, 66. As where the member was the very person against whom the offence had been committed. 6. C. M. O. 13, Dept. of the Platte, 1873 " People V. Vermllyea, 7 Cow. 369. " O'Brien^.238 ; De Hart, 119. "Clode, M. L., 127; Ben6t, 73; Copp6e, 66; Ives, 90; Diobst. 1M. MILITARY LAW AND PEECEDENXS. 225 auch sentence is a probable one. It may also not improperly be taken in a case wbere a sentence of suspension for a certain term would be a teasonttble and appropriate punishment for the offence, and where within 336 snch term a right to promotion, by reason of the compulsory retirement of a common senior, or otherwise, would accrue to the member if the ac- cused were to be deprived of the same by flie execution of such sentence. Advancement in flies. That a member will by the dismissal of the accused be merely advanced one " file " or number in the line of seniority toward pro- motion will in the majority of cases be too remote an interest to form a valid objection." Cases however may occur in which such Interest is not thus remote, and the court may in its discretion properly sustain the exception, — as where the number to which the member will be advanced is the first in the line of promotion to a higher grade ; or where it is the second, and the senior officer at the head of the list is soon to be retired, or, by reason of the com- pulsory retirement of a common senior or otherwise, to be promoted. BEIiATIONSEIP. No instance is known in which this ground of chal- lenge — familiar to the common law" and recognized in the modern civil practice " — ^has ever been taken to a member of a court-martial. The detailing upon such a court of an officer so nearly related to the accused as to make it proper for the judge advocate to object to him on the ground of relationship must needs be of the rarest occurrence. That a member was a near relative of the judge advocate would not, per se,. warrant a challenge on the part of the accused. Where, however, a near relationship existed between a member and the officer who preferred the charges and was prosecuting witness, or between a member and the person immediately injured or affected by 337 the alleged offence of the accused," ground for an exception by the latter might well exist. In such cases indeed it would not be the kinship of the parties which would constitute the legal objection, but the close personal relation and affiliation to be implied therefrom. INTIIIATE FEBSONAL KELATIONS. Under the old common law a con- siderable significance was attached to the existence of personal relations between a juryman and a party to a legal proceeding, implying friendship, fellowship, dependence, &c." Later, Blackstone" designated as causes of "principal challenge," that the juror " is the party's master, servant, counsellor, steward or attorney, or of some society or corporation with him." At present, however, all such situations would generally be considered as affording grounds of challenge " to the favor " only ; the question whether the relations of the juror and party were so intimate that the former could not well stand indif- ■ii Digest, 101. ^ " For that the law presumeth that one kinsman floth favor another hefore a stranger." Co. Ldtt., 157, a. And at an early period the rule was adopted that the relationship must be within the ninth degree to exclude a juror. Pinch's Law, 401 ; 1 Chitty, C. Ll, 541 ; 3 Black. Com., 363 ; 1 Bishop, C. P. § 901 ; Simmons § 504. This is still the general rule in the United States, except where a different one may have been substituted by statute. The law ot descent of the civil law, however, has been adopted in this country instead of that of the canon law followed in England. See Churchill v. Churchill, 12 Vt. 661. " See the American authorities above cited ; also 1 Burr's Trial, 415 ; Jacques v. Com., 10 Grat 690 ; State v. Perry, 1 Bus. L., 331 ; Schoeffler v. State, 3 Wis. 828 ; O'Connor v. State, 9 Fla. 215. ■* See Jacques v. Com., 10 Grat 690. "Co. Lltt, 157, b. »3 Com., 363. 440593 0-42-15 226 MILITAKY lAW AND FEECEDENTS. ferent on the trial being determined in each case by the special circumstances '"ciser however of this general class would not be frequent in the military practice That a member, for Instance, was of the same company or regiment as the accused," or even that the accused was his commanding officer, would not of Itself, be regarded as a valid ground of challenge on the part of the judge advocate. In such cases other circumstances must combine and be ex- hibited in evidence to establish between the parties that Intimate relation 338 which would properly constitute adequate cause of objection to the member. Hough" cites a case where two members of a court-marttal, " who had been the private advisers, counsellors, and associates of the prisoner up to the very day of trial," were held properly excluded, upon a challenge taken by the judge advocate: here the relation of friendship was combined with one analogous to that of counsel and dient." Where indeed a member of a miUtary court is in fact subject to be biased by any intimate friendly, social, or other personal relation binding him to the accused, he should be set aside upon the challenge of the judge advocate with the same reason that a member subject to be biased by a hostility entertained toward the accused should be set aside upon an objection interposed by the latter. HAVING TAKEN PABT IN A rOBMEB, TRIAL OR INQUIRY. This ground of challenge, which Is but another aspect of the general subject of challenge for opinion, will be considered under the following heads : — ^1. Former trial of the same case ; 2. Former trial of a difEerent case involving the same or a similar question ; 3. Having been a member of a previous court of inquiry in the same case ; 4. Having been a member of a regimental court from which an appeal is taken under Art. 30. Tormer trial of the same case. It is a settled principle of the civil pro- cedure that where a juror in a case has taken part in a verdict, or in a vote upon a verdict, (as where the jurors were divided,) at a previous trial of the same case, he is necessarily incompetent to sit in the pending case and will be set aside on challenge. This, " not," to cite the language of Chief Justice Marshall on Burr's Trial," that he is " suspected of personal prejudices, but " that " he has formed and delivered an opinion and is therefore deemed to be unfit to be a juror in the cause." Otherwise, where there was no verdict or vote upon a verdict at the 339 previous trial, — as where the case was dismissed by the court vyithout proceeding to verdict. In such a case the juror is not challengeable " See Mann v. Glover, 2 Green, 204. The objection noticed by Bladistone, that the Juror is " of some society or corporation with " the party has not been favored by courts in this country. Thus in a leading case in New Yorlt — Purple ». Horton, 13 Wend. 9 — the court say that such a doctrine " would exclude every stockholder in the same bank, every member in the same church, and every associate of the same benevo- lent society ; " and It is accordingly held not to be a valid ground of challenge to a Juror by a party to a suit that the Juror and the other party are both freemasons. In a further case in the same State — People v. Jewett, 3 Wend. 314 — it Is declared to be no objection that Jurors belong to " any particular association or fraternity." The mere fact of an intimate acquaintance between a Juror and the accused will not constitute ground of challenge. Moore v. Cass, 10 Kans. 288. " Simmons | 509; Hough, (A.) 51; D'Aguilar, 102; De Hart, 124. "Precedents, 664. "In a case in G. C. M. O. 23, Dept. of Texas, 1887, a challenge was Interposed by the Judge Advocate, (but not sustained by the court,) on the ground that the member challenged had assisted the accused in the preparation of his case, and had interested himself too mnch in his behalf to he quite impartial on the trial. "1 Vol. 1, p. 416. And see Herndon v. Bradshaw, 4 Bibb, 45 ; Briggs v. Byrd, 12 Ire., 377 ; State v. Fox, 1 Datch. 695 ; State v. Benton, 2 Dev. & Bat, 218. MILITABY lAW AND PEECBDENTS. 227 "for principal cause," " though, if his mind has been In any manner biased,— as by his having heard evidence, arguments, &c., he will be liable to challenge " for favor." "• SimUarly an officer of the army, who had been a member of a court-martial on a certain trial, would properly be excluded from acting upon a new trial for the same ofEence where one had been ordered or granted;" and this whether or not the former court had jurisdiction of the case, or whether the proceedings of the former trial were legal or iUegaL Thus Attorney General Grundy, in holding that the proceedings in a certain naval court-martial had been invaUdated by a fatal omission therein, and that, in order to the trial of the accused, a new court must be organized, adds:— "The officers who sat on the former should all be excluded from the second trial. They have formed and expressed opinions upon the case which would dlsquall^ them from serving as jurors in a criminal case in a common law court ; and I can see no reason why officers under the same circumstances should not be excluded from a court- martial, especially as they are the triers of the facts as well as the law." "* But where the proceedings were terminated before a finding was reached, as by the number being reduced below a minimum, or the entry of a nolle prosequi, or because of some military exigency, an officer who Was a member would not properly be excluded upon challenge from the subsequent court or trial, unless it appeared that the effect of the previous investigation had been so to bias his judgment that he no longer stood indifferent between the parties. Former trial of a different case involving the same or a similar question. In the criminal law, neither the fact that a juror has served as such on a pre- vious trial of the same party for a separate instance of the same offence 340 or for a similar offence ; *" nor that he has taken part in the trial and conviction of another and distinct offender separately Indicted for an offence of the same character;" nor even that he has similarly acted upon the trial of an accomplice jointly indicted for the same offence but who has been permitted to sever for trial,"— Is held to be a " principal cause " of chal- lenge, i. e. necessarily to disqualify the juror. A challenge "to the favor," however, may be allowed in such cases, where it is satisfactorily shown that the juror, by reason of havihg heard the testimony on the first trial, or other- wise, has actually become biased by an opinion for or against the present d^ fendant" In cases of this class at military law a similar test is to be employed. While it Is certainly not per se valid ground of challenge to a member that he has taken part in a previous trial of the accused for a like offence, or in a trial for the same offence of another officer or soldier between whom and the present accused there had been criminal concert, yet if the previous hearing has in- duced the formation of an opinion as to the guilt or innocence of such accused, the member is of course properly subject to exception." ''Durell V. MoBber, 8 Johns., 445. AiJd see Atkinson «. Allen, 12 Vt. 621. '^ See Whltner v. Hamlin, 12 Fla., 18, (a case deemed otherwise of doubtful authority.) "And so would a member or members who had acted on " a previous court by which the same accused had been tried for the same act, though under a diJEerent charge." Digest, 101. «3 Oplns., 398. " Com. V. Hill, Allen, 591 ; U. S. v. Watkins, 3 C*. C, 443. " State V. Sheeley, 15 Iowa, 404. " U. S. V. Wilson, 1 Baldwin, 78 ; Adye, 174. "U. S. V. WUson, ante. "> Simmons i 613-8 ; Macomb, 31 ; De Hart, 121 ; Ben£t, 76. An officer Is not properly competent to sit on a court-martial, who, as a member of a previous board of survey, has Joined tn an opinion or finding ant&vorable to the merits of the case to be tried. 228 lyiTTJTAItY LAW AND PRECEDENTS. Having been a member of a pre-vions court of inquiry. The fact that a member of the petit or trial jury in a criminal case was a member of the grand Jury which found the indictment has uniformly been held to constitute con- dnsiye ground of principal challenge ; " and so the fact that a member of a conrt-martial was a member of a court of inquiry previously held in the same case. has been regarded at military law as a sound objection to the member." Whether the objection is to be held equally valid where the court of 341 inquiry only reported evidence as where it expressed an opinion in the case, is a question as to which different views appear to have been enter- tained by military writers, but the weight of authority is in favor of the aflarmative" and good sense and good reason certainly concur. In the, practice of American courts-martial the fact of having been a member of a previous court of inquiry by which the charges were passed upon Is uniformly treated as an objection in the nature of a challenge for " principal cause." " If the Investigation by the court of inquiry related not to the actual charges to be tried but to a similar matter or one Involving a similar question, the member would properly be held subject to challenge according as such investi- gation had or not impressed upon him an opinion as to the merits of the case." Having served on a regimental court froni which an appeal is taken. All the authorities, English and American," agree that in the case of an appeal, (taken in our law under the 30th Article of war,) from a regimental to a gen- eral court, a member who has acted on the former court will necessarily be excluded from the latter, upon challenge as for "principal cause." This for the reason that the regimental court, in every such case, has not only formed but expressed a specific opinion and conclusion. BEING A MATEBIAIi WITNESS. The fact that a Juror has been sum- moned by either party as a material witness in the same proceeding is held to be a "principal cause" of challenge." This on the ground that a 342 witness is likely to be a partisan and either to have a personal prejudice or a decided opinion in the case." Similarly, it is in general a valid exception to a member of a court-martial that he is to be a material witness to the merits:'" otherwise, however, where he is to be called upon simply to testify as to character," or as to some interlocutory point not material to the " Stewart v. State, 15 Ohio, 159 ; Barlow v. State, 2 Blatchford, 114 ; Bice o. State, 16 Ind., 298 ; Gilleapie v. State, 8 Terg., 507 ; State v. Benton, 2 Dev. & Bat, 213. " See authoritieB referred to in next note. " That is to say, of those who have expressed a decided opinion on the subject See Simmons S 512; McNaghten, 177; Hough, (P.) 771; De Hart, 120; Copp«e, 66; Ben6t, 76 ; Harwood, 68 ; Digbst, 101. Hough, (P., 645, note,) well observes—" Whether they give an opinion matters not ; every man thinka an opinion." " See G. O. 11, Dept of Cal., 1866 ; also case of Major S. Babcock, C. B., Am. S. P., M. A., vol. 2, p. 805. But In Col. Henley's case. (1778,) in which Gen. Burgbyne was prosecutor, four members, including the president, of the previous court of inquiry served on the court-martial, without challenge or objection being interposed " See Tytler, 223. ™ Tytler, 224 ; Adye, 173 ; 1 McArthur, 275 ; Delafons, 137 ; Hough, 943 ; Simmons 8 508 : De Hart. 119 ; Ben«t, 75 ; Copp6e, 66. "Co. Utt, 167, a; Com. v. Jollffe, 7 Watts, 585. Otherwise, where he is to testify as to a matter not affecting the question of guilt or innocence— as that the place of the offence was in a certain county. State v. Varl, 14 S. E., 392. " Com. V. Joliffe, ante. "See Simmons § 511; D'Aguilar, 102; Bombay R., 12; -De Hart, 123; Benfit 74; Coppee, 66 ; Digest, 100. [A somewhat conflicting view in G. C. M. O 134 Dept of Dakota, 1884, is, in the opinion of the author, too broadly stated.] A fortiori where ?1J^L^* P»-o»ec»tw witness. It does not make him less objectionable that he is to testify In an ofBcial capacity. 6. C. M. O. 17, Dept. of the East, 1892 "See anthorltiea cited in last note; also Com. v. Jollffe, 7 Watts 586 MILITAEY lAW AND FRECEDENTS. 229 main issue, or slight detail. It is not essential, however, that the member should have been formally summoned.^ If it is the fact that he is reUed upon and is to be used as a material witness to the merits, he is equally subject to challenge whether he has been summoned or not. Otherwise a party, by avoiding summoning his witness, might secure his remaining on the court, to his own undue advantage and the detriment of public justice."" If a member has given material testimony on a previous trial or Investigation of the same case,*" or on a previous trial or investigation of another case or matter of the same or a similar nature," the question whether he should be allowed to sit in the pending case will depend on the weight of the evidence which may be offered to show either that he Is prejudiced or that he has formed an opinion ; the objection being in the nature of a challenge " to the favor." While the mere fact that an officer is to be a material witness in a case to be tried does not disqiuMfy him from sitting as a member of the court," 343 it is agreed by the authorities that he should not be detailed as such if it can be avoided without serious prejudice to the service." But In the absence of a challenge he cannot, as heretofore indicated, be excused by the court. If a member is caUed upon in the midst of a trial- to be a material witness, he may then be challenged by the party against whom he is to testify, provided it was not known to this party, at the outset, that he, was to be used as a witness." But if not challenged, the court has no power to relieve him, nor can he relieve himself; the order of the convening authority being necessary for such a purpose." BEISCKEiIiAITEO'CrS OBOTTKSS. Certain other grounds of challenge which have been recognized as valid in the civil practice may here be noticed. These are — that the juror has been tampered vrtth;" that he has been bribed;" that he is characterized by a moral obliquity ;" that he will not convict on cir- cumstantial evidence ; " that he has taken an oath or assumed an obligation as a member of an association or combination which prevents bis standing indif- ferent between the parties ; " that.he has conscientious scruples in regard to ■'The mere fact that the member was an Important or material wittaess In the case, (whether or not formally summoned,) was held sufficient ground of challenge in cases in G. CK 4, Dept. of the West, 1861 ; Do. 20, Dept. of Arizona, 1870 ; Do. 18, Dept. of Dakota, 1875; also on Trial of Ldeut. Stanley, (U. S. N.,) p. 323. And see Plpon & Col., 51. ^ In Com. V. JoUffe, 7 Watts, 586, it is remarked by the court that if a party should purposely omit to summon a juror whom he designed to use as a witness, this fact " might be a cause of challenge to the favor." *> See Harper-i;. Kean, 11 S. & E., 298. "See Delafons, 136; Hough, (P.) 684. ^ See authorities cited in next note ; also Bell v. State, 44, Ala., 393. » Sullivan, 58 ; Simmons 8 511 ; Hickman, 17, 246 ; Clode, M. L., 127 ; O'Brien, 239 ; De Hart, 123; Benfit, T4; G. O. 11, Dept. of the N. West, 1864. And see Hacker's Trial, 5 How. State T., 1181. " See ante, p. 208. "IJiOHST, 103. And see, ante — "A member eaicuaaJile only upon challenge," p. 214. » Co. Lltt., 157, b ; Knight v. Freeport, 13 Mass., 217. *> Co. litt., 157, b ; TJ. S. v. Morris, 1 Curtis C, 35 ; Tytler, 225 ; Maltby, 30 ; O'Brien, 238. •» McFadden v. Com., 23 Pa. St. 12. " Gates V. People, 14 Ills., 433 ; Jones v. State, 57 Miss., 684 ; State v. Prltcbard, 15 Nev., 74 ; Griffin v. State, 90 Ala., 596 ; Blair v. State, 5 Ohio Clr. Ct., 496 ; State v. Leabo, 80 Mo., 247. " Fletcher v. State, 6 Humph., 249 ; Com. v. Livermore, 4 Gray, 20 ; People v. Beyes, 6 Cal., 347. 230 MILITAKY LAW AIID PEECEDENTS. the imposWon of the death penalty which will affect his verdict;" that he does not speak English ; " that he has not sufficient Intelligence." 344 None of these grounds are likely to arise in a military case. Should indeed an exertion in the nature of any of those mentioned be taken before a court-martial, the determination, under the Article, of Its " relevancy and validity " may be assisted by a reference to the authorities here cited under the similar subject. CONCLXTDINa ' R'B'WftT K— T-T A'RTTT Tr TO CHAlIiENGE NOT DIS- QtTAUFICATION. In the course of this CJhapter, jurors and members of courts-martial against whom valid causes of objection exist, have, in some instances, been said to be "Incompetent" and "disqualified." These words are frequently employed In the reports and treatises as coavenlent terms, but it must not be inferred from their use that It is Intended that the juror or member is, by reason of his liability to challenge, disqualified to act on the court, or that his acting thereon impairs the legality of the proceedings. In an adjudged case in New York, " it is held : — "A challenge to a juror does not go to the jurisdiction of the tribunal : though a Juror may be incompetent as such, the trial is not Invalidated." And in a case In North Carolina " the court observe : — " There was good cause of challenge to the juror. But that does not vitiate the trial: * * * by not making the objection the party waived it." So, at military law, where the party entitled, under Art. 88, to object waives, or falls to take, his objection, or where the same, being made, is Improperly overruled by the court, — ^while the reviewing authority may, and, In the latter contingency, generally will, disapprove the proceedings, the legal validity of the finding and sentence is. In neither case, affected." •• V. a. V. Cornell, 2 Mason, 104 ; V. S. v. Wilson, 1 Baldwin, 78 ; V. S. v. Ware, 2 Crancta C, 477 ; and many cases In the State reports. The rule is held to be the same where the death penalty Is discretionary, viz. where the statute enjoins death or some lesser penalty as tmprisomnent In a penitentiary. Gross v. State, 2 Carter, 329. "■ Fisher v. The City, 4 Brewst., 385. « State V.' Boundtiee, 32 La. An., 1144. " Clark V. Van Tracken, 20 Barb., 281. •• Briggs V. Byrd, 12 Ire. 381. "Case o( Ueut Keyee, Digxst, 102; Do., 15 Oplns. At Gen., 482; Do., IB C£ 01., 533 ; Do., 109 U. & 836. Opln. of At Gen., In Lieut. Armstrong's Case, 17 Oplns. 397. That an accused does not, by a plea of guilty, waive any advantage to which he may he entitled by reason of an improper disallowance by the court of a challenge intaposed by him to a member,— see G. C. Mi O. 88, Dept. of Dakota, 18T8. CHAPTER XV. OUaABIZATIOir — AKRAIGNHCENT — CONTINTrAirCE — KOILE FBOSEQTJI. 345 In this Chapter will be considered the subjects of— I, The Organiza- tion of the Court by the swearing and qualifying of the members; II, The Arraignment of the Accused, and herein of Standing mute ; III, Continuance and Adjournment ; IV, Nolle Prosequi or Withdrawal. I. THE SWEARING OF THE COUKT. The accused (and judge advocate) having fully exercised, or been afforded an opportunity to exercise, the right of challenge of members of the court accorded by Art. 88 of the qode, the members, (if at least five in number,) proceed to complete their organization as a court, for the trial, by formally qualifying themselves as prescribed In Art. 84 ; the oath of the judge advocate being taken, under Art. 85, next subsequently.' THE OFFICIAIj OATH. Article 84 is as follows : " The judge advocate shall administer to each member of the court, before they proceed upon any trial the foUowing oath, which shaU also he taken iy all members of regi- mental and garrison courts-martial: 'You, A. B., do swear that you uHll well and truly try and determine, according to evidence, the matter now before you, between the United States of America amd the prisoner to be tried, and that you will duly administer justice, wtlhowt partiality, favor or affection, according to the provisions of the rules artd articles for the government 346 of the armies of the United States, and if any doubt 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 pub- lished by the proper authority, except to the judge advocate; neither will you disclose or discover the vote or opinion of any particular member of the court- martial, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you Ood.' " ' * In a naval case. In which the statutory order of the oaths was reversed, this Irregii- larity was held not to have affected the legal validity of the proceedings, Inasmach as the accused took no exception at the time. 13 Opins. At. Gen., »74. And see G. C. M. O. 10, Navy bept, 1893. ' Art 48 of the Code of James II, from which our Article Is in part derived, directs that the members " shall take an oath for the due administration of Justice according to these Articles, or, (where *fce«e Article$ do not assign any speoial punishment,) according to their consciences, the best of their understandings, and the custom of war in the like cases." 231 232 MHilTAKY lAW AND PRECEDENTS. THE ADMINISTEBING OF THE OATH — ^To be repeated on every triaL This oath, being required to be administered to the court before proceeding " upon any trial," must be taken anew before the trial of each and every case tried by the same court' No such procedure is recognized as swearing a court generally at the outset for all the cases to be tried by it. The court must be qualified separately for every case precisely as if this were the only case to be adjudicated; such qualifying being an essential preliminary to its being authorized^o " try and determine " the same/ The accused to be present. The Article does not require that the oath should be administered in the presence of the accused, and it is not 347 essential that he should be present when the same is administered. Being, however, already legally present for the purpose of exercising his rights under Art. 88, he properly continues to be present at the qualifying of the court; and it is a weU-estabUshed usage of the service, specifically recognized in the Army Regulations— par. 1037 — ^that the oath should be administered In his presence. Form of administering. . The form of administering the oath is as follows : The Members and the Judge Advocate having risen In their places, the latter reads aloud the form, prefacing It by addressing the members, by name and rank as given in the Order, as follows — " You, A. B., Colonel, &c,, C. D., Major, &c., E. F., Captain, &Ca (and so on,) do, severally, swear that you will well and truly try and determine," &c. ; each member — though this Is not an essential feature — ^properly keeping his right hand raised during the reading,' or assenting at the end by an Inclination of the head. No Bible or copy of the Evangelists is used in our service. To be taken by every member separately. The Article requires the ad- ministering of the oath to "each member." While all the members present are, sworn together at the same time, they are not sworn collectively, t. e., as a court or body, but separately and individually as members. So, a member not present at the organization, but taking his seat later In the day or on another day, must be then separately sworn ; and so must a member subsequently added to the court by the "convening authority.' Members may affirm. It is declared in Sec. 1, Eev. Sts., that " in determin- ing the meaning of the Revised Statutes, * * * a requirement of an oath shall be deemed complied with by making affirmation In judicial form." Any member therefore who objects to being sworn may be affirmed; the word " affirm " in the place of '' swear " being used In addressing him, as his name occurs in the order of rank, thus : " You, A. B., C. D., &&, do severally 348 swear, and you, E. P., do affirm, &c." In affirming, the reference to the Deity at the end of the oath should be omitted. ' ' See O'Brien, 246 ; De Hart, 129 ; Macomb, 34 ; Ben«t, 80 ; Harwood, 76 ; Army Begs., par. 1037 ; G. O. 60 of 1873. And compare, aa to a similar construction of a correspond- ing provision of the militia code of Mass., CofSn v. Wilbour, 7 Pick., 150. A contrary view expressed by Atty. Gen. Berrien in 1829, (2 Opins., 297,) on the authority of Tytler, (p. 230,). was dissented from by Atty. Gen. Taney in 1831, (2 Opins., 460.) Tytler's view has been long since abandoned in the British practice. See Kennedy, 45 ; Harcourt, 75 ; Simmons § 440, 521, 527. ♦See Digest, 96-97; Simmons §440. In G. C. M. O. 7, Dept. of Cal., 1891, the proceedings were held void where a member who had not been sworn sat on the court during a material part of the trial. In the author's opinion, this would not necessarily require a disapproval, if there were live other duly qualified members on the court. •See O'Brien, 240; Macomb, 32; De Hart, 128. The two first named writers state that the members repeat the words of the oath after the Judge advocate. This, however, has long since ceased to be the practice. •DiOBBT, 97 ; G. O. 46, 56, Dept. of the Hast, 1864. MILITAEY lAW AND PRECEDENTS. 233 Oath not otherwise to be varied. A memiber, however, would not be en- titled to have the form of the oath further varied as to himself on the ground that, as expressed in the Article or administered in practice, it was not binding upon a person of his religious belief. Every officer of the army, whatever Ills religious opinions, accepts, on entering the service, the provisions of the mili- tary code as obligatory upon him, and he cannot refuse to undertake or to abide by the prescribed obligation in this Instance. A member, however, may properly be allowed to acoompany the ceremony by any form, not inconsistent with the directions of the Article, by which the oath may in his estimate be rendered more obligatory as to himself. Thus a Roman Catholic may take In his hand, &c., a copy of the Evangelists, or an Israelite a copy of the Pentateuch.' THE ITATTTKE OP THE OBLIOATION. The oath, which some writers have remarked upon as investing the court with a two-fold capacity assimilated to that of judge and jury,' contains several distinct engagements which may briefly be noticed here, to be illustrated from time to time hereafter. These engagements are: — 1. To " try and determine according to evidence." Here the member binds himself not to be influenced by any private knowledge or extraneous informa- tion which he may have In regard to the case, but to decide it by the testimony, oral and written, which may be duly laid before the court on the trial.* 2. To try, &c., " the matter now before " the court. By these words the members engage to pass upon the specific offences alleged against the 349 accused, of which they will properly have been advised by having had the charges read or laid before them, as heretofore indicated. Moreover, having thus bound themselves to pass upon the particular charges presents, they cannot, after they have once been sworn, legally entertain new or " additional " charges or specifications setting forth further ofCences. Such new offences must be made the subject of a separate trial by the same court, or be referred for trial to a separate court; or the proceedings before the original court may be discontinued, and the court be re-organized, and re-sworn to try all the charges old and new." 3. To " duly administer justice without' partiality, favor or affection." This is the obligation, express or implied, of all judges, and secures, or should secure, for the accused, however grave the charges, a perfectly fair trial and full opportunity to make defence. Where the proper challenges have been duly passed upon, the members will be prepared to proceed to administer justice with strict impartiality. If any member, however, is at this stage conscious of any such partiality, favor or affection as would materially influence his judgment in the case, he should apply to the convening authority to be relieved, since he could not properly take the oath. 4. To administer justice, &c., " according to " the Articles of war. The member here undertakes to administer justice, not according to his own private views of justice or his personal opinion as to what the law should be, but in ' See Cloae, M. L., 126 ; Simmons § 447. « See Kennedy, 9 ; SimmonB § 440 ; Ben«t, 78. • See Adye, 187 ; G. O. 21, Dept. of the Ohio, 1866 ; G. C. M. O. 41, Dept. of Texas, W74. Compare Eex v. Roaser, 7 C. & P., 648. The testimony must be that of course which is Introduced upon the partlcalar trial. The court cannot, under Its oath, allow Its conclusions to be affected by evidence taken at another trial. G. O. 29, Dept. of the Platte, 1869. w Simmons t 415. 458 ; Griffiths, 61 ; De Hart, 102 ; Ben^t, 91 ; Diqdst, 97 ; G. C. M. O. 39 of 1887 ; G. O. 13, Northern Dept 1864. 234 MrLITASY LAW A3^D PBECEDENTS. Strict compliance with the actual statutory provisions of the military code, relating to the offence or offences charged." The Articles, where their import Is not dear, may often be Interpreted by a reference to the corresponding arti- cles of the earlier American codes, and of the British code, as construed by the standard authorities. 5. In case of doubt, to administer justice according to his conscience, best understanding, and the custom of war. In certain cases the Articles of war fall fully to define the offence made punishable, and In most cases do not prescribe a particular sentence to be Imposed In any event, but leave the 350 punishment to the discretion of the court. In such cases of "doubt," the member will be guided by his " conscience," (i. e., his moral sense, or natural feeling of justice,") and his "understanding," (or intellectual faculty,) in determining whether the accused was actuated by the guilty animus essential to the offence charged, and in estimating the amount of criminality Involved In his act and thus the measure of punishment adequate thereto. He will also, where necessary or appropriate, recur to the custom of war or mili- tary usage, as Indicating whether certain acts are to be considered as consti- tuting a certain offence, whether a certain defence is to be regarded as valid and sufficient, whether a particular punishment is or not sanctioned by the practice of the service, &c. But with what Is here written is now to be taken Into consideration the code of maximum punishments, prescribed by the Presi- dent, for enlisted men, In accordance with the Act of September 27, 1890. The customs of the service have already, (in Chapter IV,) been treated of as a component part of the law military, and need not therefore be here dwelt upon. 6. Not to divulge the sentence, or the votes or opinions of the members. This — the "obligation of secrecy" — was Introduced Into the oath at an early period," the purpose of its adoption being described to be to protect the mem- bers from such resentment or other prejudice as might ensue upon their per- sonal action on the court being made known, and thus the better to secure their lndex>endence and promote the ends of justice." A further purpose might well have been to prevent — ^In case of conviction — the judgment of the court coming to the knowledge of the accused, and of other persons perhaps impli- cated with him, tin the moment at which it would be legal to proceed with the execution of the sentence, thus guarding against escapes and facilitating the efficient administration of the punishment. 351 The obligation, how violated. The Article, in impo^ng this obliga- tion of secrecy, had no doubt mainly in view disclosures made In conver- sation, or otherwise personally and extrajudicially, by the members. The viola- tions, (few Indeed in number,) which have occurred have, however, mainly con- sisted In statements made In the written record of the trial; as a statement, for Instance, that the vote was unanimous ; or that all the members concurred in the finding or sentence, or in a vote on a single charge or specification ; or that certain members designated composed the majority or the minority upon " DiGiBT, 97 ; G. C. M. O. 41, Dept. of Texas, 1874. " See CKBriea, 244. "See Clode, M. L., 130. "Tytler, i27-9 ; 1 McArthur, 306-8; 1 Clode, (M. F.) 168; Stocqueler, Hist. Brit. Army, 50 ; Macomb, 33 ; Ben«t, 78. The obligation Is compared by Clode, (M. L., 130.) to that which, on grounds of public policy, is Imposed by their oath upon grand Jurois. MILITARY lAW AND PBECEDENTS. 235 some t««ue,— as the issue upon a challenge or a special plea,— voted on In the coarse of the proceedings," The disclosure of the vote or opinion of a member or members upon any material interlocutory question, raised during the trial and passed upon by the court when cleared for deliberation, would also be a substantial violation of the obligation assumed by the oath, although no issue were joined upon such question. Otherwise, however, where the question thus acted on was one quite immaterial to the merits of the case." For a member to disclose his own vote or opinion would, as remarked by Hough," be equally at variance with his sworn engagement as if he were to divulge that of another member. While the members, by the last clause of the oath, are precluded from divulg- ing the sentence only, it is clear that a member could not properly 352 divulge the fact of an acquittal. Such a disclosure would not Indeed be a violation of the oath, but, as Indicated in considering the obligation of the judge advocate under the 85th Article," it would be a breach of official trust and duty, and would constitute an offence under Art 62. The obligation, how discharged. As to the sentence,— when the same has been promulgated in General Orders, or otherwise made public by the proper superior authority, the member is no longer bound to secrecy In regard to its terms. As to votes or opinions of the members, an individual member is authorized to divulge the same only when " required to give evidence thereof " before " a court of justice." " By the term " court of justice " was evidently intended a civil or criminal court of the United States or of a State: a court martial "" could scarcely have been contemplated. A member, when duly summoned as a witness before a civil court for the purpose indicated, is not only authorized but obliged, if the testimony required of him on the subject be material, to make the disclosure of the vote, &c., if the same be known to him ; and this whether testifying in person or by depo- sition. It will be contempt If he refuses." « See SulUvan, 78 ; Tytler, 324 ; Simmons § 615 ; De Hart, 179 ; Digest, 98. It Is no justification for a statement in the record of the vote on the sentence or other subject, that such statement was Intended for the eyes and consideralon of the reviewing officer only. G. C. M. O. 28, Dept. of Texas, 1883. "Thus, In G. C. M. O. 113, Dept. of the Mo., 1868, It was held not to be "conduct to the prejudice of good order and military discipline " for a member of a general court to make known the vote and opinion of other members, " given while the court was considering, with closed doors, a subject in no way connected with the case then prop- erly before It for trial ; " and it was added by the reviewing officer, (Gen. Sheridan,) — "The oath administered in compliance with the 69tb, (^ow 84th,) Article of war, is binding only in matters pertaining to tbe case which Is actually being tried." "Page 372; Id., (P.) 738. In a case in G. C. M. O. 24, Dept. of the Platte, 1875, Gen. Ord disapproved, as contrary to tbe ^irit of Art. 84, the action of the president of the court in adding over his signature to tbe Finding in the record a statement to the effect that, for reasons specified, he disagreed with the majority In a certain finding, — thus disclosing bis own opinion. " See Cbapter XIII. " On the trial of Maj. 6»i. McDougall, one of the charges of which he was convicted was tbe relating publicly of matters which had occurred at a Council of War, and disclosing Gen. Heath's opinion thereat. (G. O., Hdqrs., Newburg, August 28, 1782.) »In the late British articles of war, the words "or a oourt-martial " were added after the words " court of Justice." In the present Army Act (S 62) the term employed Is — " unless thereunto required in due course of law." » See In. re Mackenzie, 1 Pa. Law J. R., 356. 236 MILITAET LAW AND PRECEDENTS, tJpon the taking of the oath by the members, the court Is duly organizei for the trial, and the presiding officer may, properly, make formal announce- ment to that effect. II. THE AKRAIGNMENT OF THE ACCUSED. THE ACCUSED TO BE EBEE OF imNECESSABY BESTSAINT. The court being now duly qualified and organized for the trial, and the accused being before it and ready to plead, the next proceeding is the formal arraign- ment. To this the accused, in the miUtary as in the civil procedure, is 353 entitled to come free from shackles, irons or other bonds, except in some extreme case where an attempt to escape or to do violence is to be appr^ hended • " and he is entitled to remain similarly unrestrained pending the trial. A failure, however, strictly to observe thU rule wlU.not affect the legal vaUdity of the proceedings." FOBH OF ARRAIGNMENT. The arraignment is the calling of the pris- oner to the bar of the court to answer to the charge or charges on which he is to be tried.'' In the practice of courts-martial it consists in reading to the ac- cused the charges and specifications, and demanding of him whether he Is guilty or not guilty of each, separately and in order. The order pursued where there are several charges is to arraign first on the 1st, 2d, and succeeding specifica- tions of the First charge, and then on that charge; next on the separate specifi- cations of the Second charge, and then on that charge ; and so with the rest. In our practice the arraignment is conducted by the judge advocate, both he and the accused properly standing during the ceremony. Where two or more prisoners are to be tried together on joint charges, each is separately arraigned. The reading of the charges and specifications, besides being the formal and proper basis for the questions which are to succeed and the answers which are to follow, will be useful in affording the accused an opportunity to compare the copy as previously served upon him with the draft on which he is arraigned and so detect any variance that may exist. It is not, however, essential to an arraignment that the. charges and specifications be read on this occasion. If they are numerous or elaborate, and if the accused has assured himself that the originals have not been modified since his receipt of the copy, he may well— the court assenting— waive the reading, as at criminal law the defendant may waive the reading, on arraignment, of the indictment." 354 So, by consent of parties, (and with the assent of the court,) the ar- raignment may be further simplified by the omis^on of the questions usually addressed by the judge advocate to the accused as to how he pleads to the several charges, &c., and by the entry in the record of a general plea of guilty or not guilty as made to the whole, or of this plea to a part and a special plea or pleas to another part of the pleadings, or of a special plea or pleas to the whole — as the case may be. Where this form is resorted to, it is generally in connection with a waiver of the reading of the charges. ANSWER OF THE ACCUSED. The answer to the arraignment, (which is no part of the arraignment itself,) will ordinarily consist of the plea of the general issue or of a special plea. In some cases, in lieu of a plea, a motion — » 2 Hawkins, c. 28 § 1 ; 1 Bishop, C. P. § 731 ; Simmons S 473 ; Macomb, 30 ; O'Brien, 235-6 ; Be Hart, 113 ; G. O. 52, Dept. of the Bast, 1869 ; Clrc, Dept of the Mo., Feb. 19, 1872. " See Digest, 334, and authorities cited In note. «Circ. No. 11, (H. A.,) 1886. »2 Hale, 219; 4 Black. Com., 322. » Goodtn V. State, 16 Ohio St., 344^7. And see 1. Bishop, C. P. i 783. MHilTABY LAW AND PKECEDENTS. 237 as a motion to quash or strike out — ^will be first made. It is possible, however, that the accused will make no answer whatever to the arraignment, but will remain wholly silent. Before proceeding, therefore, to consider In a separate Chapter the subject of Pleas and Motions, we will pause here to notice the rare contingency of standing mute. Standing Mute. THE LAW ON THE SUBJECT. At an early period of the English law. In all capital cases except treason, if the prisoner stood miite, and the jury to which the question was referred," found that he did so from obstinacy or malice ; or if he persisted in answering " foreign to the purpose ; " he became liable to the "peine forte et dure,"" a barbarous mode of punishment and torture not finally done away by legislation till the reign of Geo. III. In other cases, (and in all cases of felony after the date of this le^slatlon,) where the prisoner stood mute or refused to plead, the court proceeded — as if he had pleaded guilty — ^immediately to conviction and sentence ; * and to the same effect appears to have been the practice of the earlier British coiu-ts-mar- 355 tlal." But, by a later statute of 7 & 8 Geo. IV, criminal courts, upon prisoners refusing to plead, were authorized to order a plea of not guilty to be entered; and In the present Rules of Procedure, (5 35, A,) it is specifi- cally directed that if the accused before a court-martial " refuses to plead, or does not plead intelligibly, a plea of not guilty shall be recorded on each charge." In this country, it was specifically adjudged In a federal court in 1818 that the penalty of peine forte et dure was unknown to the laws of the United States." Moreover a series of statutory provisions, dating from 1790; have — as the law is stated in Sec. 1032 of the Revised Statutes where they are now consolidated — enacted that — " When any person indicted for any offence against the United States, whether capital or otherwise, upon his arraignment stands mute or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his hehalf in the same manner as if he had pleaded not guilty thereto." " At military law, the first enactment on" the subject was that of Art. 70 of the code of 1806, and this has been repeated In Art. 89 of the present code, of 1874, as follows : — " Wlien a prisoner, arraigned before a general court-mar- tial, from obstinacy and deliberate design, stands mute, or anstoers foreign to the purpose, the court may proceed to trial and judgment, as if the prisoner had pleaded not guUty." PBOCEDTTRE. The application Of the Article being restricted to cases where, from "obstinacy and deliberate design," the accused will not submit himself tb be duly arraigned, it may become necessary for the court — ^where the accused stands mute, (or what is equivalent," refuses to plead,) or answers " See, as to this procedure,, post, p. 238. ''As to the description and history of this penalty, see 2 Hale, 319; 4 Black Com., 327-9 ; 1 Chitty, C. L., 426 ; Adye, 152 ; Tytler, 234 ; Delafons^ 173 ; De Hart, 137. "1 Chitty, C. li., 425 ; 4 Black Com., 325 ; Kejc v. Mercier, 1 Leach, 183 ; U. S. v. Hare, 2 Wheeler, C. C, ^00 ; De Hart, 137-8. 8" glmmons g 555. And see Tytler, 234-5. »U. S. V. Hare, 2 Wheeler, C. C, 301. "See V. S. V. Hare, ante. A similar statute exists "in probably all our States." 1 Bishop, C. P. § 7330. "2 Hawkins, c. 30, s. 1 ; 4 Black. Com., 324; Tytler, 233; O'Brien, 247; De Hart, 137. O'Brien, (p. 150,) includes also within the description of standing mate the case of an accused who, after a special plea interposed by him has been inadmissible by the court, pertinaciously adheres to the same, refusing to plead to the merits. And see Benet, 108. 238 MILITABY LAW AND PRECEDENTS. foreign to the purpose, and it is not clear that he does so from mere wilfulness — to satisfy itself by an investigation whether he acts from contumacy only or from some cause beyond his control. In such a case, in the civil practice, a jury is ordinarily empannelled 356 to try and determine whether the party is mute, &c., from malice or self-will, or ex visitatione Dei— that is to say, from a natural impedi- ment or some other physical or mental infirmity. If the jury find that the silence, or refusal, results from the latter cause, the trial is, or not, proceeded with, according to the capacity of the prisoner to plead and defend with proper intelligence. If not found capable, he is remanded to custody for such disposi- tion as the existing statute law may direct" In the military procedure, such an inquiry devolves of course upon the court, which, therefore, proceeds, with the assistance of such testimony, medical or other, as may, through the judge advocate, be made available, to determine the preliminary question." If it find the accused to be apparently insane or idiotic, it suspends the proceedings, reporting the facts to the convening author- ity, for such action as he may think proper to take or to recommend to be taken by the Secretary of War — as, for example, a discharge from the serv- ice, or a committal to the Government Hospital for the Insane." If again — a contingency which must be of still rarer occurrence in the Army — the accused be found to have lost, wholly or In part, the faculty of speech or hearing, he may, if sufficiently intelligent and able to communicate his thoughts and wishes, plead and defend through an interpreter, as in the civil practice: If not thus intelligent or capable, his case will properly be reported by the court to the convening officer, for discharge or other appropriate action. If, on the other hand, the court determine that the accused stands mute, &c., " from ob- stinacy and deliberate design," it will proceed as indicated in the Article ; the accused himself remaining liable to a separate charge and trial (by a difCerent court) for such offence as may, if his conduct has been aggravated, have been involved in his acts or words. If these Indeed amount to a menace or a 357 disorder disturbing the hearing, the court may be justified in proceeding as for a contempt under Art. 86." It will be seldom, however, in practice that a court-martial will be required to proceed as enjoined in Art. 89; and but a few instances of such proceeding are to be found published in the General Orders." " See 2 Hawkins, c. 30, s. 5 ; 4 Black. Com., 324 ; 2 Gabbett, 318 ; De Hart, 138 ; Rex V. Jonee, 1 Leach, 102 ; Hex. u. Mercier, Id., 183 ; Eex v. Steel, Id., 451 ; Rex. v. Prltchard, 7 C. & P., 303 ; Rex v. Dyson, Id., 305 ; Rex i;. Halton, Ry. & Mo., 78 ; Queen v. Goodc, 7 Ad. & El., 536; Ley's Caae, 1 Lew., 239; Thompson's Case, 2 Id., 137; Frlth's Case, 22 How. S. T., 307 ; Com. •;;. Braley, 1 Mass., 102 ; Com. v. Moore, 9 Id., 402; Com. v. Hathaway, 13 Id., 299; Com. v. Hill, 14 Id., 207; Com. v. T?ree, 2 Va. Cas., 266 ; Matter of Turner, 5 Ohio, 544. And see, in this connection, Freeman v. People, 4 Denio, 9. « On the subject of this Inquiry by a court-martial, see Griffiths, 57 ; O'Brien, 248 ; Ben«t, 96. "'Under Sec. 4843, Rev. Sts. " But a mere neglect to plead is not a contempt. Perrin v. Oliver, 1 Minn., 202. » See cases in G. O. 96, Dept. of N. Mex., 1862 ; G. C. M. O. 62, Dept. of Va., 1865, where, upon the accused answering foreign to the purpose when arraigned, the court caused d. plea of not guilty to be entered on the record, and proceed with the trial. A more conspicuous case was that of C. L. Vallandigham, tried by military com- mission In 1863, who, denying the jurisdiction of the court, refused to plead to the charge; whereupon the plea of not guilty was entered as authorized by the Article. Printed Trial, p. 12 ; G. O. 68, Dept. of the Ohio, 1863. A recent marked case is that of Lieut. B. F. Handforth, published in G. C M. O. 88 of 1887, where the accused stood mute as to the charge (under Art. 61) and all the three specifications. And see a later case In G. C. M. O. 28, Navy Dept., 1891. MILITARY LAW AND PRECEDENTS. 239 III. CONTINUANCE. It is upon the' arraignment and before the plea that application is, more fre- quently than later, made to the court for a continuance. The subject of con- tinuances will therefore best be considered at this point. ABT. 93. This subject Is now regulated by the 93d Article of war, which Is as follows: — "A court-martial shall, for reasonable cause, grant a contvmea/nce to either party, for such a time, and as often as may appear to be just: Provided, That if the prisoner be in close confinement, the trial shall not be delayed for a. period longer than sixty days." CONSTRUCTION AND EFFECT OF THE ABTICLE, IN OENEBAL. This provision, which appears first as an Article of war in the revised code of 1874, was originally sec. 29 of the Act of March 3, 1863, ch. 75. Prior to this statute the only provision on the subject was that of a paragraph, (now num- bered 1014, ) of the Army Regulations, which directed that : — " Application for extended delay or postponement of trial will, when practicable, be made to the authority appointing the court. When made to the court, and if in the 358 opinion of the court it is well founded, it will be referred to the conven- ing authority to decide whether the court should be adjourned or dis- solved." This regulation, which had in view applications to be made only or mainly by the accused, and to be made to, or finally passed upon by, the conven- ing authority, was practically superseded by the statute, which authorizes either party, indifEerently, to apply to the court for continuances, empowers the court alone to grant the same, and permits them to be granted at any stage of the proceedings. The Article in efEect transfers to the court a function — similar to that exercised by the civil courts In continuing cases from one term or ses- sion to another" — which the regulation had devolved upon the convening offi- cer. Applications to delay the trial, or rather the assembling of the court for the trial, made before the date designated in the Order for such assembling, must of course always be addressed to that officer; but such applications are of rare occurrence. The Article, by the words " shall grant," &c., is deemed to entitle the party to the continuance asked, (or to some continuance,) as a right, upon his show- ing " reasonable cause " therefor." Thus the chief question under the Article is as to what constitutes reasonable cause. Before considering, however, the ground for continuance, we will notice certain minor points as follows : — THE TIME FOK MAKING THE APPLICATION. The Article, In provid- ing for the granting of continuances "as often as shall appear to be Just," Is deemed to authorize the making of applications or motions for the 359 same at amy time pending the trial. But while sufficient causes for granting such applications may not unfrequently arise at later stages of 5» The Article, however, though employing the more legal term " continuance," In lieu of the more colloquial " postponement " used in the regulation, does not employ it in the strict sense in which it is commonly used in the civil practice, but in a more general sense as including any temporary stay of proceedings, to be granted by the court at the instance of a party. See post — " Duration of the continuance," p. 240. *• See DioBST, 109. A refusal by a court to grant a continuance, where reasonable cause therefor is exhibited, while it will not affect the legal validity of the proceedings, will. If the accused appears to have been thus prejudiced in his defence, or to have otherwise suffered injustice, "properly constitute good ground for disapproving the sentence or for mitigating or partially remitting the punishment." Diobst, 109. And see G. C. M. O. 35 of 1867 ; Do. 128 of 1876 ; G. O. 24, Dept. of Arizona, 1874 ; Do. 63, Dept. of Dakota, 1872; Do. 40, Fourth Mil. Dist., 1869. 240 MILITARY LAW AND PKECEDBNTS. the proceedings," yet where the ground for a continuance exists and Is known prior to or at the arraignment, the proper time for making the application Is upon the arraignment and before the plea." If the facts which would warrant the granting of the application are fully known at this time by the party, and he does not then present his motion but goes on to plead to the general issue, he may usually properly be held to have waivecl his title to a continuance based on such facts. BOTH PASTIES EQUALLY ENTITLED TJNBER THE ARTICLE. The opinion has been expressed by some of the authorities, (writing prior to the enactment of the present Article,) that a continuance should be granted more readily to the accused than to the prosecution, in a case at least where the ground presented Is the absence of a material witness." The existing Article, however, avoids making any distinction between the parties, and the court should In general make none, whatever the ground of the application, but should look to the reason offered for the claim rather than to the source ttom which It proceeds. BTrBATIOlT OF THE CONTINUANCE. The Article declares that a con- tinuance shall be granted "for such time as may appear to be just," except In the single case where the accused is "in close confinement," (a term ex- plained in a previous Chapter,") when, it Is provided, " the trial shall not be delayed for a period longer than sixty days." As the limit in the excepted case is thus broad, it may be Inferred that it was contemplated that continu- ances might be allowed for very considerable periods, approximating in dura- tion even to the continuances from term to term granted in the civil, courts. In Capt. Howe's case," the trial, for a reason hereafter to be noticed, was, at the Instance of the accused, suspended for nearly two years. This 360 indeed was exceptional, but^ln general It may be said that the period for which a continuance may legally be granted Is without other limit than such as the exigencies and convenience of the service or the Interests of justice may impose. In practice, a continuance for a longer period than a month is rare, NXnUBEE. OP CONTINUANCES. The Article further authorizes the granting of continuances " as often as shall appear to be just." Continuances may thus be renewed, or new ones may be allowed, without any fixed limit as to number. A proper occasion for the renewal of a continuance would be presented where a material witness had not arrived at the time expected and to which the original postponement had extended, but there was reasonable ground to believe that he would arrive presently. So, where a continuance has already been granted for one cause, the court would be authorized to accede to a subsequent application based upon a new ground, provided the same could not have been anticipated at the time the former was presented, and is itself sufficient and properly evidenced." But it Is to be observed that, to sustain a new and especially a reiterated, appUcatlon, a stricter measure of proof should ordinarily be required than In the case o f the original motion: this Indeed " Chapter IX — " Arrest." « 6 Opins. At Gen., 506. " See Moore v. HcCuUoch, 6 Mo., 448. MILrrABY LAW AND PRECEDENTS. 241 acpears to be the view of the civil courts" It may be added that, under the wide dlscretloa permitted it, to allow a stay of proceedings when and as often as it may deem just, a court-martial, like a civil court, may grant a continuance at the trial of an issue formed upon a special plea as well as at any other stage. But here too a stricter rule as to proof may in general property be applied than where the trial Is upon the general issue." 361 OSOXJNDS FOB CONTINtTAITCE. It was declared by Lord Mans- field in Rex v. D'Eon," that — "no crime is so great, no proceedings so instantaneous, but that, upon sufficient grounds, the trial may be put ofE." A similar condition is expressed in our Article of war by the words "for reason- able cause." Whether the cause statfed In any case is a reasonable one, the court alone is empowered, in its discretion, to determine. But on this subject there are certain general rules which, though not absolute or Imperative, have been recognized as properly guiding the discretion of the court; and these rules, which are in general also applicable to the military practice, wUl be referred to in considering the principal grounds for continuances — as follows : 1. Absence of a material witness. This is the most frequent of such grounds, both upon civil and military trials. In the case last above dted," Chief Justice Mansfield clearly lays down the rules governing the granting of. a continuance for this cause. " Three things," he observes, " are necessary to put off a trial — ^1. That the witness is really material and appears to the court so to be; 2. That the party who applies has been guilty of no neglect; 3. That the witness can be had at the time to which the trial Is deferred." In our Own law. It is directed by par. 1013 of the present Army Regulations, (par. 887 of 1861,) as follows: — "Upon application by the accused for post- ponement of trial because of the absence of a witness, it should distinctly appear on his oath-^lst, that the witness is material, and why; 2d, that the accused has used due diligence to procure his attendance ; 3d, that the accused has reasonable ground to believe, and does believe, that he will be able to procure such attendance within a reasonable time stated." The affidavit or statement. This regulation is in terms confined to the case Of an application by the accused. But the statute of 1863, (Art. 93,) en- acted since the date of the original regulation, having provided for the grant- ing of continuances to either party indifferently, the judge advocate, when the motion comes from him, ma> properly be called upon to make a similar 362 statement, though his oath to tiie same need not be required. In prac- tice the accused is generally sworn to his statement by the judge advo- cate. But — the regulation being directory only — the taking of the oath, and even the making of the formal statement, may be waived by the opposite party, and in practice is, with the consent of the court, not unfrequently dispensed " " On a first application, a less degree of diUgelice would satisfy the court than on a second or third application." • * • The court " would continue to require greater diligence on each successive application." Shook v. Thomas, 21 Ills., 89. And see 1 Bishop, C. P. i 951 a. Where a second application is made on the same ground as a prevlons one, it should be based upon new facts which have arisen since. Peru Coal Co. », Merrick, 70 Ills., 112; Wilson v. State, 33 Ga., 207. A second application for con- tinuance on account of an absent witness should show renewed diligence to secure his attendance used since the first continuance. Powers v. Lockwood, 9 Johns., 132; St. John V. Benedict, 12 Johns., 418. " See Wade v. Birmingham, 2 Chltty, 5. « 1 W. Black., 614. » Eex V. D'Eon, 1 W. Black., 614 ; Id., 3 Bur., 1614, 440593 O - 42 - 16 242 MILITAKY LAW AND PEECEDBNTS. With where the continuance asked is but for a brief period, and there is no reason to question the good faith of the party applying." But as a general rule, and especially where the continuance will entail an unusual delay, or is asked for at an unusual stage of the proceedings, the pref- erable course is for the party to present with his application the statement in- dicated in the regulation, setting forth explicitly therein the three points enu- merated. In the first place, therefore, he will properly state, not only that the witness is material but how he is material, and this by specifying as to what feature of the case he is to testify and what it is expected that his testimony will be in substance or effect." And this testimony should appear to be substantial and appropriate to the issue of guilt or innocence under the specific charge, not testimony as to character merely,"' or testimony which is only cumulative or reiterative as to a point already sufficiently exhibited in proof." The main object, it may be noted, in specifying the facts proposed or expected to be proved by the witness is, not only that the court may better judge as to Ms materiality, but that the opposite party may have an opportunity to adm4>t such facts or that the witness will so testify, and the occasion for a 363 continuance thus be done away with. Where indeed, as is not rarely the case in a criminal proceeding, the personal appearance and state- ment of the witness will be of manifest and material advantage to the party applying for the continuance, he ought not in general to be deprived of the same by anything short of an unqualified admission and stipulation of record, by the opposite party, that the witness, if present, would testify as to cer- tain facts, and that his testimony would be true." Secondly, the party applying for the continuance phould set forth in his affi- davit or statement sufficient facts to show that he has used due diligence to secure the attendance of the witness — as that, withoutt fault of his own, he has but just been advised of the existence or of the whereabouts of the wit- ness ; or " that he has endeavored without effect to serve on him a subpoena, specifying the exertions used ;" " or that the witness has been duly served but refuses or neglects to appear and that an attachment has been or is about to be issued for him ; or that he has been duly summoned, or ordered to attend, but residing, or being stationed or on duty, at a great distance from the station of the court, has not had time to reach the same ; "' or that he has been un- avoidably detained en route, or that, having once attended in obedience to a summons or order, he has, without the fault or knowledge of the applicant, " " While the court may refuse the application If the regulation be not followed, It may, In its discretion, refrain from insisting that the same be strictly complied with, and accept a modified form." Digest, 108. '^See Simmons §533; O'Brien, 246. If the witness Is material, it cannot affect the right to a continuance that his testimony is to be used in reiuttal only. G. O. 63, Dept. of Dakota, 1872. " Wharton, C. P. & P. § 592 ; King v. Jones, 8 Bast, 34 ; People v. Wilson, 3 Park. 199; G. O. 28, Dept. of the Lakes, 1871. Where, however, the proposed testimony as to character is really Important to the accused, and the Judge advocate is not pre- pared to admit it, the court may properly grant a reasonable continuance. "See People v. Thompson, 4 Cal., 238; Parker v. State, 55 Miss., 414; also Mull's Case, 8 Grat., 698 ; Rhea v. State, 10 Yerg., 258 ; Digest, 108. This general rule may also be departed from In a proper case. ■* Compare Goodman v. State, 1 Meigs, 197 ; People v. Vermilyea, 7 Cow 369 " Wharton, C. P. & P., | 591. " Or that he has been recently separated from his witnesses, by the change of station of his regiment or company. See case in Digbst, 109 I 3. MILITAIIY lAW AND PKECEDENTS. 243 withdrawn or disappeared, and cannot be found, &c. And In every case, where the existence of the witness has been known, the party should state, not In general terms merely that due diligence has been used, but specifically what acts have been done by him and efforts made to procure his attendance." Where the witness is absent on account of illness, the party should cause this fact to appear by a medical certificate or medical testimony, or, If such cannot be obtained, by some other reliable means of information." From the 364 facts exhibited the court will judge whether a reasonable diligence has been employed, or the party has been chargeable with laches; if the latter is apparent the application will regularly be denied.*" And so will it be denied where ihere is reason for believing that the witness Is absent by the procurement or connivance of the applicant himself." Thirdly, the party, in his affidavit or statement, should fix a date, not un- reasonably distant, within which he should show, by facts specifically set forth, that he is reasonably justified in believing that he will be enabled to secure the presence of the witness at the court." Where Indeed, in the opinion of the court, it does not appear that the personal attendance of the witness may reasonably be expected to be secured within the time named, a continuance may still be granted for the purpose of enabling the party to obtain the deposition of the witness — the ground next to be noticed. 365 2. lime to procure the deposition of a distant witness. Where this is the ground for the continuance sought, the application should be pre- sented as soon as practicable, and should satisfy the court that the testimony is material and that the witness, from physical causes or otherwise, cannot attend the court in person, or, by reason of the distance of his residence or station, thei duty on which he is engaged, or other circumstance, cannot attend without undue expense or unreasonable delay, or serious prejudice to the service." " Wharton, C. P. & P. § 591 ; Pence i). Cliristnuin, 15 Ind., 257 ; Brady v. Malone, •4 Iowa, 146 ; People v. Thompson, 4 Cal., 438. »• Wharton, C. P. & P. § 591; 2 McArthur, 32; Simmons § 533; Maltby, 64; Macomb, 36; O'Brien, 246-7; De Hart, 131. «• " It must be shown that the absence of the witness is not attributable to any neglect of the applicant," Simmons § 533. And see Kennedy, 67 ; Maltby, 64 ; O'Brien, 246. In Capt. Powlett's case, (2 McArthur, 28,) one of the reasons for which the court-martial refused a continuance to the accused was that he had not " taken the proper measures for preventing" witnesses, who had been at hand, from going abroad and thus absenting themselves at the time of the trial. Clode, (M. L., 136,) remarks: "A postponement to get up evidence, which ought to have been ready at the opening, would not be regular." In civil cases It is held not due diligence to rely on the mere promise «f the witness to attend; and where this has been done by a party, he will not be allowed a continuance on account of the absence of the witness. Freeland t). Howell, Anthon, 198; Day v. Gelston, 22 Ills., 102; State v. Cross, 12 Iowa, 66; Mackubin v. Clarkson, 5 Minn., 247; Campbell ■». Blanke, 13 Kans. 62; Hensley v. Lytle, 5 Texas, 500 ; — even where the witness has in fact been subpoenaed by the oppo- site party. Moore v. Goelltz, 27 Ills. 18. "Wormley v. Com., 10 Grat., 658. On the other hand, a continuance will not be denied where the party, though apparently chargeable with laches, has really been pre- vented from securing the testimony by reason of the acts or omissions of the other party or his agents. U. S. v. Duane, J. B. Wallace, 10. The accused in a military case cannot be charged with laches where the attendance of the witness has been prevented by superior authority, — as where the witness is de- tained on duty in the field or on other active service. See case in G. O. 63, Dept. of Dakota, 1872, noted in DiODST, 109 ; also case referred to in Id., 109, § 3. «» Simmons | 533, Kennedy, 67 ; Macomb, 35-6 ; O'Brien, 246 ; De Hart, 180 ; Diqkst, 108. A " reasonable expectation " of procuring the testimony is a " standing requisite." U. S. 17. Doane, J. B. Wallace, 8. " See Burris 1^ Wise, 2 Ark., 33 ; Waskem v. Diamond, Hempst., 702 ; Hawley v. Stirllns, 2 Cal., 470. 244 MILITAEY LAW AND PRECEDENTS. The non-retnm of a deposition, for wliicli interrogatories have been sent, may also constitute good ground for a brief continuance, where the moving party has not been chargeable with laches in having it executed or procuring its return." 3. Absence of written or documentary evidence. The reasonableness of this as a ground for continuance is illustrated in an English case," where, in granting a postponement to enable the defendant to procure a copy of a judg- ment of a distant tribunal, the court observe : " The absence of such a docu- ment is equivalent to the absence of a witness." In a military case, the occasion for moving for a continuance on this ground would most frequently arise where it was desired to obtain, for use in evidence, a certified copy, which could not be made and forwarded without some delay, of a j-ecord fff trial, or other record or official document on file In the War or Treasury Department, or other public depository of the United States or a State. The court, before granting the motion, should be satisfied that the written evidence is material to the issue, that the party has not, by neglecting at a previous time to procure the original or a copy, forfeited his claim to the postponement sought, and that the 366 writing can be procured without an unreasonable delay. Where the rec- ord or paper is of a simple character, an admission by the opposite party as to its existence and contents may sometimes well be accepted as doing away with the occasion for a continuance. OTHEB GBOTINDS. Other recognized grounds for the granting of continu- ances are such as — the sickness of the accused as established by the proper medical evidence;"" the temporary illness of the judge advocate;" the death, Illness or absence of the counsel for the defence, In an important case, where considerable time is required to enable the accused to supply his place ; " the serious Indisposition (shown by medical testimony) of a material witness occurring pending his examination or when he Is about to be called upon to testify.* So, a reasonable continuance may properly be granted the accused to enable him to procure counsel at the outset of the proceedings where he has not « See Marsh v. Hulbcrt, 4 McLean, 364 ; Blagg v. Phoenix Ins. Co., 3 Washington, 6 ; Martin v. Anderson, 21 Ga., 301 ; Vaiden v. Abney, 7 La. An., 57 ; Hogan v. Bnrleaon, 25 Texas, 85; Miles ». Danforth, 32 Ills., 59. In the last case the motion was granted, though it appeared that the commissioner had not yet met the witnesses ; it being held that as the latter were volunteer soldiers in active service, the moving party was not chargeable with laches In not procuring the deposition to be promptly taken. " Mackenzie v. Hudson, 1 Dow. & Ey., 159. " Wharton, C. P. & P. § 597 ; Simmons S 535 ; Kennedy, 45 ; Griffiths, 29 ; Clode, M. L., 136 ; Maltby, 64 ; Macomb, 36 ; O'Brien, 247 ; De Hart, 131. The fact of the Illness may be presented by the judge advocate, the counsel for the accused, or the accused himself if able to come into court. " See O'Brien, 247. In the event, however, of a merely temporary indisposition of the judge advocate or the accused, the court will ordinarily itself aAjowm for a brief period, without any motion for a continuance being made. And where the illness seems likely to be protracted, the court may prefer to adjourn and r^ort the fact to the Commander rather than to allow a continuance moved by a party. See post--" Continuance as dis- tinguished from Adjournment," p. 246. » " It would be contrary to natural Justice that a party should be compelled to have his cause tried when the attorney who has all along had the management thereof is prevented by sickness from attending trial." Hayley v. Grant, Sayer, 63 And see R I Rn^*^'m,'/i rf*l'' Ifn' ^'^S"'' :■ **'"'™' 1 **=^"'' 33*; H^^te-^ ■»■ Fairfax, 3 Dallasi fr • » ^.^'*''^' ^^ ^^■' ^^^= ^''""^" "• <*"'^«' 3 W. Va.. 631; Marrero «. Nunez o lOu An., 54. ® Simmons § 533. MILITAIIY lAW AND FRECEDENTS. 245 yet had a sufficient opportunity to do so." It is also sometimes " reasonable cause" for a continuance that the accused, having been brou^t to trial pres- ently upon his arrest or upon the service of the charges, has not had time 367 to prepare his plea or defence;" or that a material amendment has been made in the charges or an additional charge has been Introduced which he has not had sufficient time to examine or answer pMor to the arraign- ment;" or that the case is one presenting grave questions of law or other unusual difficulties requiring extended study and preparation.™ A further ground may be the pendency of other proceedings, in a similar or the same case, before another court-martial or a civil court; on account of which a con- tinuance may properly be asked and granted, either because these proceedings will probably so illustrate and facilitate the investigation on the proposed trial as to make it desirable to suspend the same till such proceedings are terminated ; or because a due respect for the civil authority requires that such suspension should be had. Thus in Capt. Howe's case," the trial by court-martial was, (as above mentioned,) suspended for two years, (not indeed by a formal continu- ance, but upon the same principle,) for the reason that the accused had already been arrested, indicted, and held to bail by the civil authorities on account of the same act which formed the subject of the military charge, and for the purpose of awaiting the result of the criminal proceedings. TBTATi OF THE ISSUE ON AJT APPLICATIOIT FOR C0NTINTTA2TCE. Upon an application for a continuance under the Article, all facts and circum- stances relied upon by the party to sustain his motion should properly be laid before the court ; and, where desirable, he may fortify his statement or 368 affidavit by the statements and affidavits of other persons." He may annex to, or incorporate or present 'with ills own statement such orders, communications, or other written evidence as may be apposite. To support his motion, he may also Introduce witnesses, (to be sworn by the judge advo- cate;) and the opposite party, if he contests the application, may offer counter affidavits and rebutting vritnesses ; and both parties may make argument." For in such a case a regular and legal issue is joined, and, (although the proceedings, being preliminary merely, should be as brief as practicable,) an Issue to be duly tried and determined. But where the accused applies for a continuance upon a recognized ground, and furnishes a satisfactory state- « Simmons § 475, 636. Digest, 110; G. C. M. O. 25 of 1875. So, it may be proper to accord a brief continuance to a party desiring to procure an interpreter, clerk, or stenographer, where the necessity or expediency of employing such assistance is suffi- ciently made to appear. " Kilmarnock's Case, Foster, 2 ; State v. licwls, 1 Bay, 1. ™ Hough, 31 ; Id., (P.) 667 ; Simmons g 418 ; Grifllths, 62 ; O'Brien, 250 ; Digest, 109. A further ground may consist in the fact that a material amendment is allowed by the court to be made in the charges after arraignment or pending the trial. Digest, 109, 235. Important unexpected testimony given on the trial, which could not reasonably have been anticipated, may also furnish ground for a continuance. Digest, 751. '^An9 so where, from some unforeseen accid«it or casualty, the party has been de- prived of the opportunity to pr^are for trial. See Torrey v. Morehouse, 1 Johns. Cas., 242 ; Nixen v. Hallett, 2 Id., 218 ; Farr v. McDowell, 1 Bay, 81. " 6 Opins. At. Gen., 506. To the grounds here enumerated may be added one other, recognized in the civil practice and which may under some circumstances be applicable to a military case, viz : the prevalence of a state of public excitement and prejudice precluding for the time an impartial trial. See Bex v. Gray, 1 Bur. 510 ; Com, v. Dunham, ' Thach., 516 ; J'im v. State, 15 6a., 535 ; Nelson v. State, 2 Swan, 483. « See King v. Slberil, 1 Ken., 356 ; Maltby, 64. " See Simmons f 633. Bnt see Digest, 108, note. 246 MILITARY LAW AND PEECEDENTS. ment or sufficient evidence to warrant it, his application, except perhaps as to the extent of time asked for, will not often be contested by the judge advocate. It may be added that, in general, the facts set forth in an affidavit for a continuance, if frankly and fully stated, are to be taken to be prima fade true, and, if not disputed by the opposite party, are to be acted upon as substan- tially true by the court." CONTINTTANCE AS DISTINGUISHED FBOM ADJOTTBUMENT. In conclusion may be noticed the distinction between continuances, which are granted to a party upon his application therefor under the authority of the Article of war, and adjournments, which are properly brief Intermissions of its business taken by the court itself of its own accord or as its own act. An adjournment may sometimes accomplish the purpose of a continuance and render one imnecessary. Thus, for some such object, not likely to involve a long delay, as to enable the accused to procure counsel, or the judge advocate a clerk; to secure the presence of a witness who is en route and expected presently ; to give time for the recovery of a party, counsel, witness, or mem- ber, who is temporarily ill, &c. — a voluntary adjournment by the court for a day, or for a few days, or from day to day for a brief period, will often be adequate without a resort to an application for the formal continuance con- templated by the Article. Even a recess taken by the court for a part of a day will sometimes be sufficient. 369 Extent of authority to adjourn. An adjournment is not to be re- sorted to merely for the convenience of the members." It should be taken to some particular day ; to adjourn subject to the call of the president would be Irregular ; to adjourn subject to the call of the judge advocate would be quite without the sanction of military usage." In war, or when otherwise specially prompt action is required, the court may adjourn to the quarters of a sick member and there hold a session,'" or to the quarters of a sick witness for the purpose of taking his testimony." In a case of necessity a court-martial may even adjourn to a different station or locality, but such an adjournment should, regularly, be specially authorized or subsequently ratified by the Com- mander. An adjournment sine die or " without day " has no legal significance, and no more effect than a simple adjournment ; a court-martial being a creature of orders and having, as has heretofore been noticed,'^ no power to dissolve itself or terminate its own existence." IV. NOLLE PROSEQUI OR WITHDRAWAL. DEEINITION. At or before the arraignment, (or later pending the trial,) it may happen that it will be expedient for the government to enter a nolle prosequi as to the charge, or, where there are several charges, to one or more " See Wick v. Weber, 64 Ills., 167 ; Quincy Whig Co. v. Tillson, 67 Id., 351. ™ " While courts have the unquestioned right to adjourn from time to time in the Inter- ests of the public service, and while they are the judges of what the public service may require, yet an adjournment prompted by the caprice, or made to suit the convenience of the members or a part of them, involves the offence oi^ disobedience of orders on the part of those members who vote for it." G. C. M. O. 181, Dept. of Dakota, 1882. (Gen. Terry.) " " The future meetings of the court should not have been left to the discretion of the judge advocate." G. C. M. O. 9, Dept. of Texas, 1883. (Gen. Augur.) " Hough, (P.) 712, 721. ^ Hough, (P.) 744 ; Kennedy, 45 ; Digest, 146. And note instance in G. C. M. O. 37, Dept. of the East, 1870. »= Chapter V. »» Digest, 145 ; G .0. M. O. 142, Dept. of the Mo., 1870. MILITAEY LAW AND PEECEDENTS. 247 of the charges or specifications. The term is derived from the common Jaw formula according to which the prosecutor comes into court and fatetur se ulterius noUe prosequi. It is thus a declaration of record on the part 370 of the prosecution that It withdraws the charge or specification from the Investigation and will not pursue the same further at the present trial. AUTHOBITY AND OCCASION FOB. It is a prerogative of The State that it may always withdraw In whole or In part a prosecution. As it has already been indicated, a court-martial has no authority of its own motion to withdraw a charge, nor has a jridge advocate, in his capacity of prosecuting officer or otherwise, any such authority." The authority to nol. pros, must be exercised by the superior who, as the representative of the United States," ordered the court, or must be obtained from him. The principal grounds for this proceeding, when duly authorized, will be — the fact that the charge, &c., is discovered to be substantially defective and insufficient in law; that it Is ascertained, (which indeed may not be done till the trial is quite or nearly concluded,) that the allegations cannot be proved, or that the testimony avail- able is not sufficient to sustain them ; that the criminality of one of the accused, where there are several, cannot be established ; that It is proi)osed to use one of the accused as a witness, &c." As will be noticed In the next Chapter, thi^ proceeding is the proper one, where a valid plea of pardon is Interposed by the accused. The entry of a nolle prosequi is sometimes also resorted to in anticipa- tion of a motion to quash, or after such a motion has been made and because of it." 371 EFEECT. A withdrawal of a charge or specification is not per se equivalent to an acquittal, or to a grant of pardon, and cannot be so pleaded. It simply removes from the pending case the particular charge, &c., without prejudice to its being subsequently renewed in Its original or a revised form. In the criminal procedure. Indeed, a nolle prosequi cannot in general be entered, after arraignment and plea, without the consent of the accused, who, in the view of the law. Is deemed, in the event of such action, to be en- titled to a verdict which he may plead in bar of a second trial ; so that. If the entry is made against his consent, it is held to be tantamount to an acquittal." But this doctrine cannot properly be applied to cases before courts-martial, where the proceedings are conducted under military orders, and where, when charges are withdrawn from prosecution, they are so withdrawn by the order, " See ante, p. 192, and notes. II •> There can be no doubt of the power of the President to order a. nolle prosequi in any stage of a criminal proceeding in the name of the United States." Atty. Gen. Wirt, in 5 Oplns., 729. And see U. S. t». Corrie, Brunner, 686. " In G. O. 64, Dept. of the Cumberland, 1867, It was properly held to be " no ground for a tiol. pros." that to proceed with the trial would prejudice the interests of the service in detaining the accused, and an officer present as a witness, from important duties. In G. O. 75, Dept. of the South, 1870, where the judge advocate, with the assent of the court, entered a nol. pros, to certain charges and specifications, on the ground that three of the most material witnesses had absented themselves without authority from the court-room and could not be found, and the remaining witnesses could not prove the case, this action was disapproved by Gen. Terry, and it was remarked that — " the reason assigned, unless the court was satisfied that every proper effort had been made to procure such evidence, ought to have been considered by the court as insufficient." " See State v. Buchanan, 1 Ire., 59, where a motion having been made to quash, the prosecuting attorney nol. pressed as to a defective count, retaining the rest of the indictment. As to the Motion to quash or strike out, see Chapter XVI. "• See 1 Bishop, C. P. § 1394 ; Wharton, C. P. & P. § 447 ; U. S. v. Shoemaker, 2 McLean, 114 ; XJ. S. v. Farring, 4 Cranch C, 465 ; Com. v. Tuck, 20 Pick., 366 ; Com. v. Scott, 121 Mass., 33 ; Mount v. State, H Oblo, 301 ; Beyoolds v. State, 3 KeUy, S3. 248 SOLITAEY LAW AND PBECKDENTS. (or, what Is equivalent, the sanction,) of the official superior who created fhe court and directed the trial — an order which binds the judge advocate, the accused and the court alike. FSACTICE. In the military practice, the noUe prosequi has mostly been resorted to at the outset of a trial and especially where a special plea or motion to strike out has been allowed by the court. The objectionable charge or specification being thus formally withdrawn, the trial proceeds on the other charges and specifications. If, at a later stage of the trial, it is found that a charge or specification cannot be sustained, or it is determined for other reason that the same shall not be pursued, while it will be legal to enter a nol. proa. thereto, it will be the preferable course, as well as most just to the accused, not to do so, but to allow the accused to be formally acqiUtted thereon at the finding." " See G. O. 64, Dept. of the Cumberland, 1867 ; G. C. M. O. 79, Dept of the Platte, 1877 ; Do. 6, Dept. of Cal., 1872. CHAPTER XVI. FLEAS AND UOTIONS. 372 AXrSWEB TO THE ABRAIGNICEITT. The accused, upon being ar- raigned, may, (where he does not stand mute, or ask a continuance be- fore pleading,) answer to the arraignment in several forms. He may proceed at once to plead " guilty " or " not guilty " to the charge and specifications, (or " guilty " to some and " not guilty " to others ;) or he may interpose, by way of special plea or motion, an objection or objections to his being tried at all ; or he may similarly object to being tried on some particular charge or charges, specification or specifications, while pleading the general issue as to the rest. He is not Indeed limited to one special plea or motion, but may offer such number as the law or facts may justify, before — in the event of their disallow- ance — resorting, as he may then do, to the plea of " guilty " or " not guilty." * FSELmiNABrT OBJECTIONS. We have already seen that at an earlier stage, viz. prior to the swearing of the court, and at the point at which chal- lenges are usually offered, the accused, being present, may raise any objec- tion properly going to the legal existence of the court, — as that It has not been legally constituted or composed ; or to its authority to proceed with the trial, — as that It is without jurisdiction of the person or the offence. Such, objections are Indeed good at any time; they may therefore be taken at the stage now reached, vie. upon the arraignment. The objection, however, that the court is an Illegal body, whose proceedings must be yoid-0li initio, is a radical de- fect which is most appropriately raised and determined at the earliest stage, and the grounds for such objection, have already been considered in the Chap- ters on the Constitution and Composition of General Courts-Martial. 373 The plea of want of jurisdiction, on the other band, being based mainly upon the descriptions and averments of the charges, which are not formally before the court till the arraignment, may properly be, and In prac- tice generally is, reserved till this time. DIVISION OF THE StTBJECT. The subject, therefore, of the answer to the arraignment may be presented under the following heads, indicating the different forms in which such answer may mostly fitly be made: — I. Plea to the Jurisdiction; II. Motion to quash or strike out; III. Special pleas in bar; IV. Plea of Guilty or Not Guilty. I. PLEA TO THE JURISDICTION. ITS EFFECT. That this plea, (which Is to the effect either that the person of the accused, or the offence charged, is not within the jurisdiction of the court,) is one which may legally be made and entertained, is now fully settled In our military law and practice. In other words, a court-martial is authorized > See 4 Black. Com., 338 ; Tytler, 242 ; Maltby, 60 ; O'Brien, 250. 249 250 MILITABY LAW AND PRECEDENTS. to pass upon the question of its own authority to proceed to try under the con- vening order* Its conclusion indeed upon such question is in the nature of a recommendation and not final; and if, having determined that it has not juris- diction, it is thereupon ordered by the convening oflScer to take cognizance of the case, it will be its duty to comply. As we have already seen, a court-martial is a creature of orders, and, except as to the exercise of an authority specifically devolved by statute, is subject to the orders of the proper superior equally as is any ofilcer or body of officers hi the army.' THE SUBJECT ELSEWHERE CONSIDERED. The subject of this plea, however, need not here be dwelt upon. In Chapter VIII, under the title of the Jurisdiction of General Courts-Martial, have already been fully exhibited the occasions and grounds for such plea in general, and in Chapter XXII are indicated the special grounds upon which the same may be offered upon a trial before an Inferior Court. The situations and circumstances therefore which justify this plea need not here be reiterated. II. MOTION TO QUASH OR STRIKE OUT. 374 ITS NATURE AND SCOPE. By means of this convenient and effec- tive motion on the part of the accused,* may be raised and decided in a summary manner all the objections which in the civil practice may be taken by the plea to the jurisdiction, the demurrer, the plea in abatement, or the mo- tion in arrest of judgment. It is in effect a species of informal and commonly oral plea,' much availed of In the criminal courts, as a ready and effectual means of disposing of objections in general to the indictment, by effacing the same, or a separate count, from the record. As remarked in an adjudged case," the motion to quash, as compared with the other forms of procedure above men- tioned, "is a more easy and equally effectual mode of getting at the whole matter: everything may be heard upon it." This motion, though it has not received from military writers' the attention to which it is entitled, is not unfrequently resorted to in the modern military practice, where it is commonly distinguished as the motion to strike out. In this practice, in which the de- murrer as such is not appropriate, and the plea in abatement, being dilatory and captious in its character, is rarely employed, and in which also the motion in arrest of judgment is unknown, the motion under consideration, from its sim- plicity, directness, and efficiency, is deemed to have a peculiar aptness and value. FORU OT THE UOTION. There is no prescribed form for this 375 motion, which may either be oral or in writing.' It should not, however, be made in general terms, but its precise ground or grounds should be distinctly specified." Otherwise indeed the court may decline to entertain it. = Sec Tytler, 143;. 5 Oplns. At. Gen., 707. » Chapter V, ante. ' It may also be made by the prosecution with regard to a special plea interposed by the accused, claimed to be Insufflcient in form or substance. ' See 1 Bishop, C. P., § 761. • Nichols V. State, 2 Balst., 539. And see State v. Wishon, 15 Mo., 503 ; State v. Day- ton, 3 Zabr., 49. ' Simmons Indeed, ( § 568,) remarks in substance that the accused may offer, by way of plea, an objection to the charge on account of a want of specific allegation as to some material matter. And see, (as repeating him,) Macomb, 37; De Hart, 145-«; O'Brien, 249. It may be observed that there Is no subject In regard to which military writers in general are more incomplete and unlnstructlve than that Of Pleas and Motions ; the mat- ter of pleas proper being repeatedly found confused on the one hand with that of motions, and on the other hand with that of defences. ' In practice, it is commonly oral. See ante. ' See State V, Maurier, 7 Iowa, 408. MILITAEY LAW AND FEECEDENTS. 251 AT WHAT STAGE TO BE INTEBFOSEI). As has already been Indi- cated, this motion is one to be made upon the arraignment and before a plea to the general Issue. But as its effect, if granted, is to save time and simplify the proceedings, a criminal court will always permit an accused, who has pleaded not guilty, to withdraw his plea for the purpose of interposing this motion," and a court-martial will properly do the same. OCCASION AND TTSE OF THE IIOTION. " Whenever," writes Bishop," " an indictment cannot be proceeded with advantageously to public justice, or without doing a wrong to the defendant," it may, on proper motion, be quashed. As in the ordinary criminal procedure, so in that of courts-martial, this motion may and properly will in general be made, with regard to a charge or specifica- tion, on one, (or more,) of the grounds following, visi: — that the person described or offence charged is not Within the jurisdiction of the court, (though this point is more commonly taken by way of a special plea to the jurisdiction;) that the charge does not set forth facts sufficient to constitute the alleged offence; or that, for a non-observance in the pleading of the rule of certainty or some other or others of the rules heretofore laid down as governing the framing of charges, the accused is actually prevented from making a proper plea or defence. As In the civil practice, the ground of the motion most frequently relied upon will be that the charge or specification does not set forth the intended offence, or any legal offence; this motion being really, in its commonest application, a substitute for the demurrer." The motion, however, IS not unfrequently made on account of the serious Indefinlteness of the substance of a gpe. Shoemaker, 2 McLean, 117 ; U. S. V. Haskell, 4 Washington, 402. ™ U. S. V. Perez, 9 Wheaton, 579 ; 1 Bishop, C. L., § 1033, and cases cited ; Kelly v. U. S., 27 Fed., 616. ™ Compare State v. Benham, 7 Conn., 418. " De Hart, 142, 145 ; Ben6t, 100 ; 1 Opins. At. Gen., 294 ; Marston v. Jenneas, 11 N. H., 156. "Digest, 119. " See 1 Bishop, C. li. § 1049. " 12 Pick., 503. And see State v. Blden, 41 Maine, 170 ; Burns v People, 1 Park., 182. M See 2 Gabhett, 330. « 1 Bishop, C. L. § 1050. And see Wilson v. State. 24 Conn., 57, 69. "1 Bishop, C. li. § 1051; Com, v. Olds, 5 Litt., 139; Com. v. Curtis, Thach., 207; State V. Birmingham, 1 Busbee, 122 ; Durham v. People, 4 Scam., 173 ; Slmco v. State, 9 Texas Ap., 338, Rex v. Sheen, 2 C. & P., 634. " 1 Chltty, C. L., 452. 264 MILITAKY LAW AND PEECEDENTS. Offences relating to the same subject matter may yet be quite distinct in that the one is not characterized by some essential fact and legal element necssary to constitute the other. For example, a trial for embezzlement cannot be pleaded in bar of a trial for the same act charged as laroen^, or vice verga, since the former offence, which consists in the appropriation of property by the party to whose charge it has been committed by the owner, is quite distinct from the latter, which is a taking without the consent and against the will of the owner. So, of the two offences of the larceny of certain articles and of the receiving and concealing of the same articles ; these offences being dis- tinct in that the latter is characterized by an atiim/us quite other than that of conversion to the party's ovra use, an essential feature in larceny." So, the offences of larceny of certain property apd burglary with intent to com- mit a larceny of the same property are held to be so distinct that a trial for the one cannot be pleaded in bar to a trial for the other." • So, a conviction or acquittal of a simple assault and battery has been held to be no bar 396 to a trial for the same assault with intent to commit a felony.'" And a conviction of assault and battery has been declared no bar to an in- dictment for manslaughter for the killing of the same person, who had mean- while died of the assault." Further, two or more offences, though committed at the same time, by the same act, and as parts of the same transaction, may, if separable, be wholly distinct in law, so that a conviction or acquittal of one cannot be pleaded in bar to a trial for another. Thus a person by the same blow, shooting, or other violence, may kill or injure two different individuals; but a trial for the murder, manslaughter, or assault and battery of one of them vsfill furnish no defence to a trial for the same act committed against the other.' So, where articles of property belonging to different owners are stolen at the same time by the same person, a conviction or acquittal on an indictment for stealing property of one of the ovmers wIU not, as it has been held,' (though the authorities on this point are variant,) bar a trial for stealing articles be- longing to another. These remarks and rulings are applicable to military cases. To add in- stances from the military service of distinct offences committed at the same time and in and by the same act, — the offence of mutiny, or joining in mutiny, may involve with it a violation of Art. 21 ; so, the offence of behaving with dis- respect to a commanding officer may concur with that of a disobedience of his order ; so, the offence of disobedience of orders, or of absence without leave, may concur with the offence of misbehaviour before the enemy. Yet a trial for one of these concomitant offences would not operate as a legal bar to a subsequent prosecution for the other. Military and civil crimes involved in same act. A further class of offences, apparently identical but distinct in law, may here be noticed. These are the offences which, though involved In the same act, are dis- tinct In this, that, while one is an offence against the ordinary criminal law of a State or of the United States, the other is a breach of military dls- 397 eipline made exclusively punishable by the Articles of war. Thus a sol- dier convicted by a general court-martial, under Art. 21 or 22, of an "Foster v. State, 39 Ala., 229. "" Wilson V. State, 24 Conn., 57 ; State v. Warner, 14 Ind., 572 ; Howard •». State, 8 Texas Ap., 447. •"State V. Hattabough, 66 Ind., 223. " State V. Littlefleld, 70 Maine, 452 ; 1 Bishop. C. Ij., 5 1059. 2 Wharton, C. P. & P. § 468, 469; State «. Standifer, 5 Port., 531; Vaughan «. Com., 2 Va. Gas., 273 ; Greenwood v. State, 64 Ind., 250 'Wharton, C. P. & P. § 470; 1 Bishop, C. L. § 1061, and cases cited. MELITAKY LAW AITD PRECEDENTS. 265 offering of violence or mutinous act which resulted in the killing of a superior officer, would remain liable to an indictment for murder in a State or U. S. Court, on account of the homicide Involved ; and vice versa. Where indeed the offences are crimes of which military courts are invested with jurisdiction con- currently with the crlmhial courts, (as for example, the crimes cognizable by courts-martial imder Art. 58, in time of war,) the same are" not distinct but Identical in law, and an acquittal or conviction of one of such offences, or rather of the actual single offence. In a dvll court, will be a complete bar to a prosecution of the same In a military court, and vice versa* The subject of double amenability for and Jurisdiction of military and clvU offences involved in the same acts has been considered in a previous Chapter." OFFEUCES or "WHICH THE ONE IS INCLITDED IN" THE OTHEB. The cases in which offences are so far Included the one within the other, and at the same time so legally related to each other, that an acquittal or con- viction of the one will bar a trial for the other, may be divided into three classes, as follows: — 1. Cases where the offence which is the subject of the pending trial is included within the offence which was the subject of the former trial, and is one so related to It in law that under an indictment for the major offence there may legally be a conviction of the minor." Here a previous conviction or acquittal of the major offence will be a bar to the prosecution for the minor; in other words a conviction or acquittal of the whole is a conviction or acquittal of every part. Thus an acquittal upon an indictment or charge for murder is a bar to a subsequent trial for the same homicide charged as manslaughter, since the latter crime Is neces- sarily included in the former, which is also unlawful liilllng with the 398 additional element of deliberate evil purpose, and since under an indict- ment for murder there may legally be a conviction of manslaughter. So, a verdict upon a trial for robbery is a bar to a trial for a larceny of the property taien, since every robbery Includes a larceny, (with the additional element of force or intimidation,) and since also there may legally be a con- viction of larceny under an Indictment for robbery. So, for similar reasons, a trial for an assault and battery may be pleaded to a prosecution for the assault. Similarly, at military law, a conviction or acquittal of desertion may be pleaded in bar of a trial for the minor offence of the absence-without-leave included in it. Nor can one tried for any specific military offence be subse- quently tried for the disorder or neglect, to the prejudice of good order and military discipline, which may have been involved therein.' 2. Cases where, under an indictment or charge for the major offence, the accused has actually and legally been convicted of the minor included offence, and is again brought to trial for the major offence. In such cases the accused has been fully tried for the major offence and convicted of such part of it as he was found to have committed. Such con- * Coleman v. Tennessee, 97 tJ. S., 513-5 ; People v. Gardner, 6 Park., 143 ; G. O. 29, Dept. of the N. West, 1864 ; Do. 32, I)ept. of Ira., 1866 ; 1 Kent Com., 341, note ; Digest, 49. " See Chapter XIII, p. 124, and cases cited. ' "A former conviction Is a bar to a trial for any offence of which the defendant might have been convicted under the indictment and proof in the first case." State v. Nunnelly, 43 Ark., 68. ' See Digest, 118. In G. O. 55, Dept. of the Tenn., 1866, an acquittal upon a charge of assault and battery with Intent to kill — a specific offence made punishable by the • present Art. 58 — -was properly held to be a bar to a second trial for the same battery, charged as a disorder " to the prejudice," &c. 266 MILITAIIY lAW AND PEECEDENTS. vlction thus operates as a perfect bar." For, as It is expressed in an adjudged case° — "The jury, In contemplation of law, render two verdicts, one acquitting the accused of the higher crime charged In the indictment, the other finding him guilty of an inferior crime. * * * The verdict of manslaughter is as much an acquittal of the charge of murder as a verdict pronouncing his entire innocence' would be." UpQn the same principle, If an accused, charged with robbery, were convicted of larceny only, he could plead such conviction In bar of a second trial for the rol^bery. So, a conviction of absence-without- leave under a charge of desertion ; or of " conduct to the prejudice of good 399 order and military discipline " under a charge of " conduct unbecoming an officer and a gentleman " or under a charge of any specific military offence, is a bar to a subsequent trial for the ofEence originally charged. 3. Cases, the reverse of those of the 1st class, where, after a trial for a minor oflfence which is Included In a certain major ofEence, the accused Is brought to trial for the latter. Here, by the weight of modern authority, the former trial is held pleadable In bar, provided the minor ofEence is one of which there could be a legal con- viction under an Indictment or charge for the major." The principle of course is that, as the accused, upon the second trial for the major ofEence, is legally liable to be convicted of the minor Included ofEence, he Is by this trial again put in jeopardy for an ofEence for which he has already been once tried." Upon this principle an acquittal, upon an indictment for manslaughter, is held pleadable in bar to a second trial for the same homicide charged as murder ;" a conviction upon an Indictment for larceny Is similarly held to bar a trial upon a charge of robbery founded upon the same transaction;" and a convic- tion of an assault Is held to be a bar to a trial for the battery committed at the same time." CJourts-martlal being governed In general by the rules of evidence appli- cable to criminal cases," a trial upon a charge of absence-without-leave would properly be held pleadable In bar of a subsequent trial for a desertion charged to have been actually committed in and by the same unauthorized absenting of himself by the accused ; and a trial for a disorder or neglect under Art. 62, In bar of a subsequent trial for a specific ofEence which the same disorder or neglect was claimed to have amounted to. THE FOBH OP THE FLEA, AND THE EVIDENCE TO StTSTAIN 400 IT— Form of the Plea. "This plea," to employ the description of Chitty,"" " is of a mixed nature, and consists partly of matter of record and partly of matter of fact. The matter of record Is the recital of the former indictment and acquittal or conviction ; the matter of fact is the averment of the Identity of the ofEence and of the person." In the military practice, therefore, the plea, (which should preferably be in writing,) will properly consist of a statement to the efEect that, by a court- 8 Wharton, C. P. & P., § 465 ; 1 Bishop, C. L., § 1056, Hurt v. State, 25 Miss., 378 ; Grennan v. People, 15 Ills., 517 ; State v. Norvell, 2 Yerg., 27. » Hurt V. State, ante. >" 1 Bishop, C. L. 5 1057 ; And see Com. v. Squire, 1 Met., 264-5. " 1 Bishop, C. L. § 1057. >" 2 Gabbett, 33 ; 1 Bishop, C. L. § 1058 ; Wrote'a Case, 4 Coke, 45 ; Holcroft's Case, Id., 46 ; Com. i;. Curtis, Thach., 206 ; Com. v. Roby, 12 Pick., 504. " State V. Lewis, 2 Hawks, 98. " State V. ChafSn, 2 Swan, 93, where the court say ; " The one is a necessary part or the other; and if he be now punished (or the battery, he will thereby be twice punished tor the assault " included in It. 1= See Chapter XVIII. " 1 C. L., 459. MILITARY lAW AND PRECEDENTS. 267 martial convened by a certain described order, the accused was, on or about — , (giving the prior date or time of the trial,) duly tried upon a charge of , (reciting' the charge and specification or specifications in full or in substance, ) and was duly acquitted or convicted of such charge, &c. ; " and that the ofEence for which he was so tried and acquitted, or convicted, is the same with the ofEence set forth in the charge to which the plea is made. Or if the offences are not identical, an averment should be substituted to the effect that the offences are so related that the conviction or acquittal of the former operated as a bar to a trial for that which is the subject of the pending prosecution. While the plea in a military case need not be so techni- cal as in the criminal procedure, a mere general plea that the accused had been previously tried for the same offence, without any of the particulars above indicated, would, strictly, be insuflScient, and the court would be justified in declining to entertain it without amendment." A plea, indeed, thus or other- wise imperfect in form, (or a plea showing on its face that the former court was an unauthorized body or without jurisdiction, or that the charge was an insufficient basis for a finding, or that the finding was not a legal one, &c.,) would be liable to be struck out on motion of the judge advocate. The court, however, would properly afford the accused reasonable time to amend and complete his plea. Explanation of variance. If there appear on the face of the plea any 401 material variance between the two charges, as to name of person, de- scription of property, place, date, &c., such variance should properly be explained by a special averment of fact suflicient to reconcile the two in law; otherwise the plea may run the risk of being disallowed." So, where, since the former trial,- the rank, or office, regiment, corps, &c., of the party has been changed, an averment will properly be added stating the fact and ex- plaining the cause of the change and exhibiting the identity of the accused. Evidence to sustain the Plea. The burden of the proof of the plea is of course upon the accused." It vpill be for him to establish — (1) the existence of a record of a legal acquittal or conviction; (2) the fact of the identity of the person and offence. The quality and extent of the evidence required in a particular case will depend upon the issue made: the prosecution may traverse, orally or by written " replication," either the entire plea or one or more of its averments." Proof of the record. The record in a military case is commonly proved by a copy of the original as recorded in the Judge Advocate General's Department, (or — if a record of an inferior court — at the Headquarters of the military Department,) authenticated by the legal custodian in the form usually prac- ticed for the purpose. If the accused, prior to the arraignment, has not had a reasonable time within which to procure the copy, he will be entitled to a continuance under Art. 93." The judge advocate, however, may admit the "A copy of the Order of publication of tlie proceedings, (if any was issued in the original case,) exhibiting the charges, findings, &e., may well be incorporated with or appended to the plea. As to the use of the same as evidence, see post. " Compare Atkins v. State, 16 Ark., 573 ; Wortham v. Com., 5 Rand., 677. M Compare State v. Klsher, 1 Rich., 219. ^iCom. V. Daley, 4 Gray, 209; Wharton, C. P. & P., § 481, 483. That the accused must prove his plea; that the court cannot accept it as true on his mere statement without evidence — see G. O. 33, Dept. of Arizona, -1877. i» Wharton, C. P. & P. 8 483; Duncan v. Com., 6 Dana, 295. »2 Gabbett, 334; 1 Chltty, C. L., 459; State i>. DeWitt, 2 Hill, 241-2; Com. ii. Myers, I Va. Cas., 232. 268 MILITAET lAW AlsTD PRECEDENTS. existence of the record and Its contents as stated in the plea, contesting only the legality of the finding or the identity of the accused. It will then not In general be necessary to procure a copy of the record : a copy indeed of the Gen- eral Order promulgating the proceedings of the former trial, and setting forth the convening of the court and the trial, the charges and specifications 402 in full, and the findings, may in such case be quite suflScient for the use of the parties and to inform the court. If it is the legality of the trial which is contested, the issue must be determined upon the record Itself, (or the Order as presenting its main features;) no extrinsic evidence being ad- missible to vary or contradict it." If upon the face of the record, (or from the Order as its substitute,) it appears that the court was not legally constituted, or was vyithout jurisdiction, or that the proceedings were fatally irregular, or that the charge or finding was InsuflScient in law, — the defect cannot be remedied by other testimony, and the plea, upon the principles heretofore con- sidered, must be overruled. Proof of identity. To establish, however, the averment of Identity, either as to person or as to offence, evidence outside the record Is admissible." Whether Indeed the ofEences are the same will in general be apparent from a comparison of the circumstances, names, places and dates, set forth In the speci- fications of the two charges. But where there Is a material and substantial variance between them, some evidence, such as the testimony of tlie ofllcer or officers who preferred or investigated the several charges, the Judge advocate who conducted the original prosecution, or other individuals familiar with the facts, will be necessary to assimilate the ofEences." As to the Identity of the person, — evidence on this point wlU be especially called for where a con- siderable period has elapsed since the former trial, and the soldier then appeared under an alias or has since changed his name, and the second trial is ordered at a station remote from that of the first : in such cases some testimony such as that of a member or the judge advocate of the former court, or of a witness at the trial, or other person then present or otherwise recognizing the accused as the same individual, will be required to sustain the plea. 403 WAIVEa OP THE RIGHT TO PLEAD FORMER TRIAL. It is now abundantly established by the adjudications in criminal cases that the constitutional right to be exempt from being twice put In jeopardy, or twice tried, for the same offence, teing for the sole benefit of the accused party, may be, expressly or impliedly, warned by him." The same principle has been recog- nized at military law. It was held by Attorney General Wirt, in 1818, that the provision of the Articles of war, that " no person shall be tried a second time for the same offence," did not apply to a case in which the accused, upon a convic- tion and sentence being disapproved by the reviewing authority, himself applied for a new trial ; the right to take advantage of the provision of Art. 102 being " Douglass V. Wlckwlse, 19 Conn., 489 ; Martha v. State, 26 Ala., 75. « Wharton, C. P. & P. § 481; People v. McGowan, 17 Wend., 415; Do. v. Barrett, 1 Johns., 69 ; Dunn v. State, 70 Ind., 47. =" Compare 2 Gabbett, 330-1; Wilson v. State, 24 Conn., 63; Darham v. People, 4 Scam., 172 ; People v. McGowan, 17 Wend., 389. Where the two Indictments clearly set forth distinct ofiEences, there can be no question of variance, and no evidence to assimilate the offences will be admissible. Martha v. State, 26 Ala., 72. »1 Bishop, C. L. § 992, 995, 998, 1001, &c., Wharton, C. P. & P. § 518; D. S. V. Harding, 1 Wallace Jr., 127 ; State v. Gumey, 37 Maine, 156 ; Veatch v. State, 60 Ind 291; Brennan v. People, 15 Ills., 511. MILITAKY LAW AND PRECEDENTS. 269 thus deemed to be waived." An accused would, it is believed, also waive by Implication this right, where he applied to the reviewing authority or President to have a conviction and sentence in his case disapproved or pronounced Invalid on the ground of illegality, and this action was taken as requested.'® An ac- cused, who had in fact been previously tried for the same offence, would also waive this right by intelligently pleading guilty or not guilty without Interpos- ing the special plea under consideration."* PLEADING- OVER. The plea of former Mai being overruled by the court, the accused will be required to plead over to. the charge upon the merits, either guilty or not guilty, precisely as if no plea In bar had been interposed." 404 This special plea and the plea of the general issue should be kept quite distinct in practice ; the former being disposed of before proceeding to the other." And the accused cannot properly be allowed to put the fact of the former acquittal or conviction in evidence under the general issue of not guilty, but should in all cases plead it specially." Plea of Pabdon. A pardon is an act of grace and mercy presupposing only the commission of an offence ; °" and it is well settled that, under the plenary power conferred upon him in this respect by the Constitution, the President, while not often exercising the same before conviction," may legally pardon an offender even in advance of trial." Hence the legality and fitness of a plea of pardon in a case where, after such action, the party is sought to be prosecuted. Leaving the subject of the nature and extent of the pardoning power in military cases to be more appropriately considered in treating of the function of the Reviewing Authority under the 112th Article of war," — ^we will here " 1 Oplns., 233. As to the few cases in which similar action has since been taken In the military practice, see Digest, 536. The new trlsil has generally been granted as a special Indulgence to the accused in lieu of approving and executing his conviction and sentence. In connection with the view of Mr. Wirt that the benefit of the provision of Art. 102 may be waived by the accused, may well be noted his view, expressed two years later In 1 Oplns., 383, that the benefit of the provision of Art. 103 may not be waived. (See ante. Chapter VIII, p. 85 and note.) It would seem that if either Article was to be re- garded as absolute or prohibitory, it would be the former rather than the latter. « Compare 1 Bishop, C. L. | 998. » See post — " Pleading over." "» Wharton, C. P. & P. I 486. Com. v. Goddard, 13 Mass., 460 ; Ben^t, 108. M " They are distinct issues, and the jury must be separately charged with them." Until the issue under the special plea is disposed of, " there can be no trial In chief." Henry v. State, 33 Ala., 399, 400. And see Foster v. State, 39 Ala., 229 ; Domlnlck v. State, 40 Ala., 680. « State V. Barnes, 32 Maine, 530 ; Com. v. Olds, 5 Litt., 140. The defence of former trial is thus distinguished from that based upon the statute of limitations ; the latter may be taken advantage of upon the general Issue. See ante. M 1 Oplns. At. Gen., 342 ; 6 Id., 21 ; Ex parte Wells, 18 Howard, 311. M "A variety of considerations seem to me to render it inexpedient, generally, to Interpose the pardoning power previous to trial." Atty. Gen. Berrien, 2 Oplns., 275. And see 5 Id., 729 ; 6 Id., 21. »1 Oplns. At. Gen., 342; 6 Id., 20-1, 405; 8 Id., 283-4; 11 Id., 227. "The power extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment," Ea; parte Garlamd, 4 Wallate, 380. « See Chapter XXI. 270 MILITARY LAW AND PRECEDENTS. notice in brief: — I. The occasions and grounds for tlie plea of pardon in the military practice; II. The form and proof of the plea; III. The procedure upon the plea. I. Occasions and Geounds fob the Plea. This plea may be offered: — 1, Where the accused has been specially 405 formally pardoned; 2, Where he is included in a general act of pardon or amnesty ; 3, Where he has been pardoned constructively. 1. SPECIAL PARDON. Special formal pardons of military offenders by the President have not been frequent ; prior to conviction they have been most rarely extended ; and no instance is known of the specific pleading of one upon an arraignment before a court-martial. Such a pardon, duly pleaded, would of course constitute a complete bar of trial. 2. GENEBAL AMNESTY TO DESEB.TEBS, &o. An informal plea of pardon has in some cases been interposed in the military practice, where the accused has or claims to have been included in a general amnesty, offered by the President," in the form of a Proclamation or General Order, to de- serters or absentees.^ Pardons, as it has repeatedly been remarked, may be conditional — based upon conditions precedent or subsequent;" and these am- nesties have generally proceeded upon the condition precedent that the party shall return and surrender himself by a certain day, while some of them have contained the condition subsequent that he shall duly perform duty for the remainder of his term, make good the time lost by his desertion, &c. Where a pardon is granted upon a condition precedent, the pardon does not take 406 effect till the performance of the condition : where the condition is subsequent, the failure to perform it nullifies the grant." 3. CONSTRUCTIVE PARDON. Where a deserter has been restored to duty without trial, under par. 128, Army Regulations, ' by the authority compe- tent to order his trial,' this action is regarded as a constructive condonation of the offence, and may be pleaded in bar of a trial subsequently ordered." So, a promotion or appointment to a new office, of an officer of the army, while under arrest and charges for the commission of a certain military offence, will operate as a constructive pardon of such offence, and constitute a valid bar to 37 That the pardoning power Includes the power to extend amnesty, see Davies ■». McKeefy, 5 Nev., 369 ; U. S. v. Klein, 13 Wallace, 128 ; Armstrong v. U. S., Id., 154. ^ See Proclamations or Executive Orders of this character, (generally issued after a war,) published or referred to in the following Orders of the War Dept. : vis. G. O. of Nov. 5, 1811 ; Do. of June 17, 1814 ; Do. of July 8, 1815 ; Do. 35 of July 6, 1848 : Do. 58 of March 10, 1863 ; Do. 35 of March 11, 1865 ; Do. 43 of July 3, 1866 ; Do. 102 of Oct. 10, 1873. [De Hart, (p. 144, note,) refers to a further proclamation of this character, as " made by the President, after the termination of the Black Hawk War in 1832, when many soldiers deserted from dread of the cholera."] The proclamations and orders of March 10, 1863, and March 11, 1865, were issued pursuant to directions of Acts of Congress. Several such proclamations were issued by Washington during the Revolutionary War. See 2 Jour. Cong., 294 ; G. O. Hdqrs. Army, Morristown, April 6, 1777 ; Do. Hdqrs., Newburg, May 12, 1782. 3° 2 Hawk., c. 37, b. 45 ; 4 Black. Com., 401 ; Ex parte Wells, 18 Howard, 307 ; Com. v. Haggarty, 4 Brewst, 326; 6 Opins. At. Gen., 405; 11 Id., 229; Digest, 554. " Flavell's Case, 8 W. & S., 197 ; 6 Opins., 405. And see U. S. -u. Klein, 13 Wallace, 142. " If a condition subsequent is broken, the offender could be tried and punished for the original offence. The breach of the condition would make the pardon void." 11 Opins. At. Gen., 229. " Digest, 341-2. And see G. O. 4, Dept. of the West, 1861, where the plea was sus- tained in cases of soldiers, not deserters, restored to duty while under charges, in the same manner as deserters, by the Department Commander, in a General Order. MILITARY LAW AND PBECEDENTS. 271 a trial therefor." But the mere restoring to command or duty, or ordering on duty, of an officer or soldier, when ih arrest under charges, by his commanding officer, while regarded In the English law " as practically a pardon and plead- able as such in bar of trial, is not authorized in our law to be so treated, (except in the single case above mentioned as provided for in the Army Regula- tions,) and is not so treated in practice." Nor can the mere fact that charges once preferred have been dropped by a commander be pleaded in bar as a con- structive pardon of the same, upon their being subsequently revived and brought to trial In connection with charges for ofEences since committed." II. FOBM AND PeOOF OF PLEA. FOBM. The plea may be oral or in writing. Where the pardon is a 407 special one, i. e. a formal pardon of the individual, the plea should properly be in a written form, setting forth the datp of the pardon, by whom granted, and its substance, with an averment to the efEect that the ofEence pardoned is the same with that which is the subject of the dharge. If the grant is made upon a condition precedent, a 'compliance with the same should be alleged ; If upon a condition subsequent, it should be averred that the same had been accepted. Where a pardon is claimed under a General Order or proclamation of the President, it will be sufficient to refer to the same orally or in writing, stating its date and substance or effect, with an averment that the accused belonged to the class described therein, and that he has complied with the conditions imposed thereby; as, for example, in returning, as a de- serter or absentee, by the time fixed, in since rendering due service as a soldier, &c. If a constructive pardon is relied upon, the fact or facts claimed to con- stitute a pardon in law must be set forth — as that the accused was, by a certain order, stating its date and source, restored to duty as a deserter under par. 128 of the Army Regulations ; or that, since his arrest and the preferring of the present charges, he has been, by the President, promoted to higher rank or appointed to a higher office in the army, &c. FBOOF. In connection with a plea of special pardon, the original pardon should be produced in court, since the court cannot take judicial notice of a personal grant of this character." As in a ease of a deed, the acceptance of the pardon will be inferred from the fact of the making of the plea, without other proof. If the pardon be conditional, the accused should show that he has duly and fully performed the condition, or has performed it as far as practicable up to the date df the plea." In pleading an amnesty offered to deserters, the accused, — if the fact does not appear from the averments of the sjjeclfication " 4 Opins. At. Gen., 8 ; 6 Id., 123 ; 8 Id., 237 ; Digest, 553. "^Simmons § 565-7 ; Clode, 1 M. P., 173, (citing opinions of the Duke of Wellington and - Judge Advocate General VlUiers, and cases of Lord Lucan, Col. Quentin, Capt. Acbison, &c.) And see Prendergast, 244-5 ; Gorham, 28-9 ; Jones, 28 ; Twyford, 35 ; Digest, 553. " Digest. 553 ; De Hart, 144 ; Benfit, 119 ; Ives, 100. « See case In G.. C. M. O. 13 of 1871. " See D. S. v. Wilson, 7 Peters, 161. It may be noted here that proof of a promise to pardon is not evidence of pardon : the promise being executory may be withdrawn. 11 Opins. At. Gfen., 230. A variance In a pardon as to the name or description of the bene- ficiary may be explained by evidence. 2 Hawk., c. 37, s. 66 ; 2 Gabbett, 340. " 6 Opins. At. Gen., 405 ; Simmons, § 564 ; Grifflths, 99 ; Macomb, 40 ; O'Brien, 249 ; De Hart, 144. 272 MILITAKY I^W AND PBECEDENTS. or Is not admitted by the prosecution, — must show that his case is 408 embraced within the terms of the 'offer," (not being Included in any excepted class, if exceptions are made,") and further, — ^if this also does not appear from the specification or Is not conceded by the prosecution, — ^that he surrendered himself or returned voluntarily within the time limited, and has since duly performed service, &c.'" A copy of the Order or proclamation as published will properly be added and entered of record with the plea ; but of the existence and contents of such Order, &c., the court will take judicial notice without proof. A constructive pardon will be proved by the order, issued by competent authority, restoring the party to duty as a deserter under the Army Regulations, with evidence, if necessary, of the identity of the ac- cused with the person described in such order ; or by the executive appointment or other fact or facts relied upon as constituting a legal pardon. If the ac- cused requires time, (as he well may where his station has been changed, or he has been transferred to a distant command, &c., since the date of the alleged condonation,) in order to make profert of a special pardon, to produce or prove an order restoring him to duty, to establish his identity, &c., a reason- able continuance wIU in general properly be granted him for the purpose." The prosecution may take issue on the plea ; — may reply that the pardon has been obtained by fraud ; " that the accused Is not identical with the person claimed to be pardoned; that he has not complied with the conditions pre- scribed, &c. ni. FBOCEDUBE UPON THE PtEA. Upon the plea being interposed, (and the pardon, order, &c., being 409 produced, if any,) the proper proceeding is for the judge advocate, if he has no exceptions to take, to enter, (with the authority of the con- vening officer,) a nolle prosequi upon the charge or charges covered by the pardon. If he contests the plea, it will remain for the court, upon the evi- dence furnished and argument made, to deliberate and pass formally upon the issue. If the plea Is overruled, the accused — as in the case of the over- ruling of a special plea of former trial — is, regularly, called upon by the court to plead to the merits, and the trial goes on. If the plea be sustained, the court does not proceed to acquit the accused, since the pardon was based upon the theory of his guilt, and his acceptance of it was substantially an admission of guilt in law." The court therefore merely adjudges that the plea is allowed, and terminates Its proceeding in the case ; the record then going to the review- ing authority, who, if he approves the action taken, will order the discharge of the prisoner. A pardon existing at the time of the arraignment should be then sought to be taken advantage of by this plea, since the benefit of it will be waived by " It must appear that he was a deserter at the date of the proclamation or Order ; If deserting later he could not of course be held to he Included in the amnesty 05 Dopt. of the East, 1866. ■ • . "> Partridge's Case, Cro. Ellz., 125. " Simmons § 564 ; Griffiths, 99 ; Macomb, 41, De Hart, 144. In a tase published in G. O. 61, Dept. of the East, 1865, the accused was held " not entitled to the benefit of the President's proclamation to deserters, as he did not voluntarily deliver himself up but, when brought before a magistrate on a complaint for grand larceny he *hen to escape prosecution, claimed to be a soldier." And note case referred to in Digbst 554, § 9. * " 2 Hawk., c. 37, s. 65. On the subject of Continuances, see Chapter XV « 2 Hawk., c. 37, s. 46 ; 4 Black. Com., 400 ; 11 Oplns. At Gen 229 =■ 11 Oplns. At. Gen., 228. MILITAKY LAW AND PEBCEDENTS. 273 a plea of guilty or not guilty." A pardou, however, may reach an accused after the trial has been commenced on the merits ; in which case the judge advocate, (no occasion appearing for raising an issue,) will, (with the sanction of the reviewing authorityK) properly enter a nolle prosequi.'' Indeed, as It has been remarked by Atty. Gen. Gushing," the President, without resorting to a grant in the ordinary form, may practically exert the pardoning power "by order of nolle prosequi pending a prosecution." rv. PROCEDtTBE ON SPECIAL PLEAS IN GENERAL OEDEB OP THE COMMANDER. Where a special plea, interposed by the accused, Is allowed by the court, the proceedings are, as already indicated, for the time at least terminated, and the court adjourns, the record of its action being forthwith transmitted to the reviewing authority. Such authority indeed, as remarked on the subject 410 of the Plea to the Jurisdiction," may disapprove the action of the court and order it to proceed with the trial. A court-martial — a mere instru- mentality for the maintenance of discipline in 'the army — is not vested by statute with power of final disposition of a case under these circumstances, and, in the absence of such power, it is subject, in regard to its procedure, to the orders of the commander by whose order it was created. The action of a court-martial upon a special plea, motion,"" or other interlocu- tory issue, where no such power is given it, cannot be allowed to be independent of the approval of the commander without authorizing insubordination or assumption in a body which would be wholly unwarranted in a separate member. The court may thus legally be ordered by the proper superior to proceed with the trial, notwithstanding its allowance of the special plea. But before making such order the commander may well pursue the less positive course of returning the proceedings to the court for revision by it and correction of its action. Should it decline to make the proper correction, the commander should not hesitate to resort to a positive order, if due considerations of justice demand it." "'2 Hawk., c. 37, s. 59, 67', 4 Black. Com., 402; 2 Gabbett, 340-1; U. S. v. Wilson, 7 Peters, 162 ; Hough, 905. " As to this proceeding, see Chapter XV. "8 Opins., 283, 284. fAnte, page 249. •: ™As to the procedure on Motion, see ante, p. 252. " Such orders are believed • to hare been given more frequently at an earlier period than later. A precedent Is found in G. O. of February 6th and 22d of 1822, where a court first directed " to reassemble for the purpose of reconsidering its proceedings," Is subsequently ordered by the Secretary of War, to " proceed and try Bvt. Major Saml. Miller of the U. S. Marine Corpfi, upon the charges and specifications preferred by Lieut. Howie of said Corps, which charges and specifications were rejected by said court." The course held legal in the text was more recently substantially pursued in two cases in the Dept. of the Platte— that of Pvt. B. Watkins, (G. C. M. O. 62, Dept. of the Platte, 1891,) and that of Pvt. John Kitt. (Do. 58, Id., 1892.) In each case the court, having sustained a plea to the jurisdiction, its action was disapproved by the Dept. Commander and the proceedings returned for completion of the trial, which was thereupon completed accordingly, by the hearing of evidence, and, in the one case, by a formal acquittal, and, tn the other, by a conviction. [These particulars are not set forth in the G. C. M. O., but appear in the records of trial.]. In a naval case, published in G. C. M. O. 9, Navy Dept., 1893, the Secretary of the Navy declined to approve the exercise of a similar authority by a convening officer, on the ground of want of precedent and because he considered the power to be a " dangerous " one. There are, as we have seen, precedents in the army, and, in the opinion of author, there can be no material danger attending a resort to the power, where properly called for by the requirements of justice. 440593 O - 42 - 18 274 MILITAKY LAW AND PKECEDENTS. 411 Inadmissible Sfecial Pleas. Besides the regular special pleas above considered, a few others, not properly admissible as separate pleas, have in some instances been ofCered In military cases — as follows: POBMEE. PTTNISHMENT. The plea of former punishment, i. e. that the accused has already been adequately punished for his ofEence by his command- ing officer, though recognized in the English practice," is not known to our military law," and when made on our military trials has been properly over- ruled.'^ Where indeed an accused has, prior to trial, been subjected, on ac- count of his offence, to any physical punishment, or to reduction to the ranks, or to a protracted arrest, or other unusual or unauthorized discipline, he may properly show the fact in evidence on the general issue, in mitigation of sucli sentence as the court. In the event of his conviction, may impose." But, ex- cept in this form, he cannot avail himself of such circumstances, upon a trial. ILLEGAL ENLISTMENT. The accused, upon arraignment, has sometimes pleaded that on account of some illegality in his enlistment, as that he was under age,°* or that he was enlisted for three years when the law required that all enlistments should be for five," &c., he was not amenable to trial. But no such form of special plea is recognized in our law. If the accused, by reason of an invalid enlistment, is not duly or legally In the army, 412 he should, regularly, ofCer the facts in evidence under a plea to the jurisdiction, or bring them out under the general issue. RELEASE FROM ABBEST, &C. Release from arrest upon the charges, and restoration to duty, before trial, — already noticed as not ground for a plea of pardon, Cexcept in cases of deserters, undes par. 218, Army Regula- tions,) — is, similarly, no ground for a special plea in bar of trial." OTHER SUBJECTS. Such objections, (which have been taken in some cases,) as that the accused at the time of the arraignment is undergoing a sentence of general court-martial ; " or that owing to the long delay in bringing him to trial he is " unable to disprove the charge or defend himself ;" "^ or that he has not been furnished with a copy, or a correct copy, of the charges ; " or that his accuser is actuated by malice or is a person of bad character," — are, it need hardly be said, not proper subjects for special pleas ; however mhch they may constitute ground for continuance, or affect the question of the measure of punishment. ™ Simmons § 561-563; Army Act, 46, (7.) "' See De Hart, 145 ; Benfit, 103. A plea of this nature, however, seems to have been recognized in the practice of our navy. See case of Lieut. Stanley in Captain Jones' Trial, p. 310 ; also case in G. O. 137, Navy Dept., 1869. " G'. O. 27, Army of the Potomac, 1861 ; Do. 73, Third Mil. Dist., 1868 ; Do. 12, Dept. of Cal., 1871 ; G. C. M. 0. 71, Dept. of Dakota, 1882. It has been held in a recent case in the Navy — G. C. M. O. 9, 50, Navy Dept., 1893 — that a previous public reprimand of an officer by his commander was not a legal bar to bis trial for the offence committed, or ground for a special plea. ^ Digest, 398. And see the three last G. O. cited In the preceding note. " G. O. 52, Dept. of the East, 1869. " G. O. 82, Dept. of Dakota, 1869. «> G. O. 7, Dept. of the Mo., 1868 ; Do. 32, Fifth Mil. Dlst., 1868. " G. O. 30, Dept. of the Pacific, 1864. «= G. C. M. O. 85, Dept. of the Mo., 1869. And see G. O. 33, Dept. of Arizona, 1871 ; also G. C. M. O. 34, Dept. of the I'latte, 1893, citing this treatise. «» See De Hart, 147. ™ G. O. 33, Dept. of Arizona, 1871. MILITARY LAW AND PEECEDENTS. 275 So, as to all such objections as are properly matters of defence under the general issue, — for example, that the accused committed the offence charged when insane or intoxicated, or in obedience to a military order, or under a mistake of fact or law, &c. ; — these are not within the scope or purpose of special pleas In bar, nor can they properly be raised in any interlocutory form or otherwise than upon the trial and by the testimony, being, as they are, of the very substance of the defence. IV. PLEA OF GUILTY OR NOT GUILTY. The accused, upon arraignment, having no special plea or pleas to ofEer, (or having presented a special pleji or motion which has been overruled, or the sustaining of which by the court has been disapproved, and the court ordered to proceed, by the convening commander,) proceeds in regular 413 course to plead — orally — guilty or Not Guilty, as the case may be, to the several charges and specifications in their order. rORM OP THE PLEA — QUALIFICATIONS AND EXCEPTIONS. The general form of this plea has already been indicated. As to this form it is laid down by the authorities that It must be "express, simple and unqualified," no statement in exculpation or justification being admissible in connection with it." But though no such matter of evidence, or other matter of explanation or embellishment, can form part of this plea, it may yet, at military law, be quali- fied In so far that the accused may except from the application of his answer of guilty or not guilty to a specification certain words or allegations indicated by him. Thus he may plead guilty to a specification except as to some aver- ment or averments of fact, or as to a word or words expressive of the intent charged, and to this or these, not guilty ; or he may plead not guilty to a specifi- cation except as to some portion which is admitted, and to this portion guilty. Another form of qualification of this plea, is the pleading of not" guilty of the charge as laid, but guilty of a lesser offence included and involved in it. Thus a soldier accused of desertion, but claiming that he is chargeable only with an unauthorized absence, may legally plead not guilty of the offence charged but guilty of absence-without-leave. And in so pleading he should, further, except from his plea of guilty such words in the specification as characterize the ofCence of desertion, substituting, if necessary, words describ- ing the ofCence actually admitted." This form of qualifying and excepting, though not essential, since the court may always find the lesser ofCence if the evidence warrants it, is not unfrequent in practice. Inadmissible forms. An accused may plead guilty of the specification 414 but not guilty of the charge, since such plea raises a legal issue, viz. whether the facts alleged in the specification do constitute the offence charged." But the converse plea of not guilty of the specification but guilty of the charge, is wholly illegitimate. It neither confesses anything nor con- '> 4 Black. Com., 333 ; Adye, 158 ; Tytler, 239 ; Kennedy, 92 ; Simmons § 552 ; Maltby, 53 ; De Hart, 134, 135 ; G. O. 107 Dept. of the Mo., 1863. ™ In such a case the plea would ordinarily be — To the Specification, Guilty, except as to the words " did desert," substituting the words did absent Mmself without authority from; to the Charge, Not Guilty, but Guilty of Absence-wlthout-leave. Or the plea to the Specification might be — Guilty, except in so far as it alleges desertion; or Guilty, only so far as it alleges absence-without-leave. "This plea may sometimes be made by a soldier through ignorance when he really does not mean to admit the substance of the specification. In such a ease it was re- marked by the reviewing authority, in G. C. M. O. 70 of 1875 — " The court should have advised him to frame his plea more intelligently," 276 MILITABY LAW AND PRECEDENTS. tests anything, but consists of two incompatible answers which nullify the issue^ and cannot be admitted as pleas by the court." So, the plea to a charge or specification of "guilty but toithovt criminality," though sometimes admitted in practice, is irregular and contradictory and not to be sanctioned." It Is practically equivalent to " not guilty " and should properly be made in this form. EFFECT OF THE FLEA AS A WAIVES. The effect of the plea of guUty or not guilty is to toaive any defects of form in the charges and specifications, which might be taken advantage of by plea in abatement, or its substitute, a motion to strike out. By this plea, the accused admits his own identity with the person described in the charges as the offender, and foregoes objections to the same as inartificial, indefinite or redundant, &c., as well as to the allega- tions of particular matters of description, or of time and place, as being obscure or incomplete." A substantial defect, however, going to the sufficiency of the charge as a statement of a military offence, is not waived." Nor of course can any such radical defect as an illegaUty in the constitution of the court, or an absence of jurisdiction of the offence or the person, be done away with or lessened by this plea." 415 THE PLEA OF NOT GTJILTY— ITS LEGAL EFFECT. This plea, which is by fax the most frequent in all criminal proceedings, whether civil or military, Is also known as the general issue, because it denies and puts at issue and to trial all the material allegations in the indictment or charge. Where a contest on the merits is proposed, this plea is an essential element of the proceedings which cannot be dispensed with. It must be made by the accused and entered of record as a starting point: in its absence the court can not supply an issue." In law " not guilty " is not a denial by the accused of the doing of the specific acts or things set forth in the charge. He may have done none of them, while, on the other hand, he may have done all of them, and the plea be as proper in the latter case as the former. For what he denies is not the details but the com- mission of the legal offence which these details describe; in other words the particular offence which, it is alleged, the details constitute.™ Thus the accused may well admit the act charged but not admit the animus ascribed to it ; or he may admit the act and defend it on the ground that it was enjoined by superior authority, or compelled by an exigency of war or of the service, &c. The plea is thus a- legal issue, not a moral disclaimer; it contmits the party resorting to it to no falsehood or deception."' Even where every material averment in the charge is admitted to be true, and no defence to the same exists on the merits, " G. O. 76, Dept. of the Bast, 1864. "! In a case in 6. C. M. O. 52, Dept. of the Columbia, 1881, a plea of this kind offered by the accused was reused to be received by the court, which required him to plead anew. On his then standing mute, the court directed the plea of not guilty to be entered to both charge and specification. '" Wharton, C. P. & P. 5 413 ; 3 Opins. At. Gen., 549 ; O'Brien, 250-1 ; G. 0. 48, Dept. of the South, 1864 ; Do. 10, Dept of the Cumberland, 1867 ; Do. 2, Dept of the Platte, 1871 ; Digest, 591. " Fletcher v. State, 7 Eng., 170 ; Digest, 591. "Digest, 326, 591. In Gen. Hull's case, (Printed Trial, p. 118,) the court, referring to the charge of " treason " preferred against the accused, expresses the opinion that a court-martial " cannot acquire Jurisdiction of the offence by the waiver or consent of the accused." That a plea of Jurisdiction cannot confer jurisdiction where none exists in law, compare People ■». Campbell, 4 Park., 386 ; Do. v. Rathbun, 21 Wend., 509 ; Shoe- maker tf. Nesbit, 2 Rawle, 201 ; Moore v. Houston, 3 S. & R., 190 ; Duffleld v Smith I'd., 599. " Wharton, C. P. & P. § 409 ; 1 Bishop, C. P. § 801 ; Douglass v. State, 3 Wis., 821 »" See Kennedy, 93. a Kennedy, 93 ; Com. v. Battle, 1 Mass., 94. MILITARY LAW AND PRECEDENTS. 277 this plea Is always justifiable, since it is in general only through this legal form that all the circumstances surrounding the offence, and which, taken together, may very considerably extenuate its criminality, can be brought out In evidence, and the proper measure of punishment be duly determined. THE PLEA OP GtriLTT— ITS LEGAl, EFFECT. The effect in law of this plea is that of a confession of the offence or admission of the 416 act as charged. But It is to be noted that such plea does not necessarily confess that a particular legal offence has been committed, for it admits only what Is charged. If the alleged offence Indeed Is duly set forth in the charge, such offence is confessed by this plea, and a formal conviction of the same must follow." If not duly set forth, — ^if the facts stated in the specifica- tion fall short of constituting the particular offence, — ^there is no such ccmfes- sion by the plea of guilty and the accused cannot legally be convicted." Nor can such plea confer jurisdiction where not given by law." BECEFTION OF THIS FLEA — WITHDBAWAL. This plea is one which military courts, in common with civil, should not too readily receive," and which, (as has already been remarked,) a judge advocate should not attempt to Induce to be mada Where there is reason to suppose that such plea is not both voluntary and intelligent, or that the accused does not appreciate its legal effect, or is misled as to its influence upon the Judgment of the court, he should be advised by the court not to Interpose it but to plead instead "not guilty." So, where, after it has been duly made and received, the accused asks to be allowed to withdraw it and substitute the general issue, he should ordi- narily be permitted to do so: " Indeed the court will properly advise or sug- gest such substitution if the same appears to be In the Interests of justice. 417 THIS PLEA IN CONNECTIOIT WITH AU INCONSISTENT " STATEHLENT." For the action last indicated there is especial reason where the accused, upon his plea of guilty, proceeds, as has often been done by enlisted men ignorant of the legal effect of the course pursued, to make to the court a " statement " setting forth facts quite inconsistent with such plea. Thus, a soldier, after having pleaded guilty to a charge of desertion, will sometimes, in a final address to the court, state facts going to show that his unauthorized absence was unaccompanied by the aninmg peculiar to desertion ; or, where the charge is larceny, that his unauthorized taking of the property was not characterized by an animus furandi; or, in any case, that he was drunk and ignorant of what he was doing. So, he may claim in his statement that he committed the act charged while temporarily insane." In such cases, while »"1 Bishop, C. P. § 795. This Is "the highest kind of conviction of which the case admits." 1 Chltty, C. L., 428-9. " Wharton, C, P. & P. § 413 ; 1 Bishop, C. P. S 796 ; Fletcher v. State, 7 Bng., 170. Where the charge is defective in that the offence is laid under the wrong Article of war, " the plea of guilty cannot enlarge the power of the court." G. C. M. O. 32, Dept. of the Mo., 1871. In G. C. M. O. 79 (H. A.) of 1891, is an instance of a plea of — "Not Chtilty, iff advice of counsel." MAS — in a civil case — neither silence nor consent of parties will supply a jurisdiction not given by the existing law. Indiana v. ToUeston Club, 53 Fed., 18. » 4 Black. Com., 329 ; 2 Gabbett, 319 ; 1 Bishop, C. P. § 795 ; Tytler, 237 ; Kennedy, 86 ; De Hart, 136. " 1 Bishop, C. P. i 798 ; Wharton, C. P. & P. I 414 ; 2 Gabbett, 319 ; Tytler, 237 ; Hough, (P.) 780; State v. Cotton, 4 Fost, 143; People v. McCrory, 41 Cal., 458; Digest^ .')90. So, the court may in its discretion permit the plea of not guilty to be withdrawn and that of guilty, or a special plea, to be substituted. 1 Chltty, C. L., 423 ; 1 Bishop, C. P. S 801. " See case in G. C. M. O. 16, Dept. of the Columbia, 1892. 278 MILITARY LAW AND PRECEDENTS. the representation made is often a mere pretence, the fair inference may not unfrequently be that it is the statement which is accurate and Intelligent rather than the plea, and that the accused has really a good defence to the charge, or is guilty only of a minor offence included in it. In other cases, the state- ment, while not strictly inconsistent with the plea, will set forth matters of extenuation which, if established in evidence, will very materially palliate the offence admitted by the plea. In all such cases the court, if it has reason to believe that the statement is made in good faith, will in general properly advise the accused to withdraw his plea of guilty, substituting a plea of not guilty. Upon this being done, or if the plea remains as made, the court will properly call upon the judge advocate to introduce such evidence as may be readily available for investigating the facts stated by the accused, with a view to ascertaining the exact offence committed and the amount of criminality to be attached to it. Such was the opinion and advice of Judge Advocate General Holt in repeated cases of soldiers brought to trial during and since the late war,® and his view was adopted in Orders by the Secretary of War." It 418 has also been cited and followed in numerous cases by commanders of military departments, &c., by whom the proceedings of courts-martial, by which such action was neglected to be taken, were frequently disapproved."" INTRODUCTION OF EVIDENCE WITH THE PLEA OF GUILTY IN GENERAL. But, in general also, and where the plea is intelligently made, the same, though a confession of the offence as charged, is held by the weight of authority not to preclude the introduction of evidence to exhibit the full facts of the case. While it was no doubt the practice formerly, as it is now in the majority of cases in which this plea is interposed, not to take any evidence whatever, the fact that some evidence was necessary to a comprehension of a considerable proportion of such cases seems to have been appreciated at an early period. Thus in a General Order from Army Headquarters — No. 60 of 1829" — it was enjoined, by the General Commanding, upon courts-martial in «» Digest, 588-9. '• In the cases of two soldiers pubHshed in G. C. M. O. 2, of 1872, in which the written statements submitted by the accused were contradictory of their pleas of guilty, It was remarked by the Secretary of War as follows : " The Court should have regarded these statements as neutralizing the effect of their pleas, and should have had the accused instructed as to their legal rights, and advised to change their pleas with a view to the hearing of testimony. It not unfrequently happens that soldiers do not understand the legsl difference between absence-without-leave and desertion, or are wholly unable to discriminate as to the grade of their offences, 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 disap- proved." And see G. C. M. O. 31, 1876 ; also Do. 63, 1874 ; Do. 91 of 1881. A similar view has now been adopted into the English law. See Rules of Procedure, 36 (A.) " See G. 0. 34, Northern Dept., 1865 ; Do. 33, Dept. of the Ohio, 1866 ; Do. 46, Dcpt. of the South, 1868 ; Do. 7, Id., 1869 ; Do. 22, Id., 1871 ; Do. 22, 71, Id., 1873 ; Do. 28, Dept. of the Platte, 1869 ; Do. 39, Id., 1870 ; Do. 2, 24, 68, Id., 1871 ; Do. 88, Dept. of Texas, 1870; Do. 19, 33, 38, Id., 1873; Do. 11, 16, 18, Id., 1874; Do. 45, Id., 1875; G. C. M. O. 18, 23, Id., 1891 ; Do. 22, Id., 1893 ; Do. 98, Dept. of the East, 1872 ; Do. 14, 43, 68, Id., 1873 ; Do. 81, 83, 98, Dept. of Dakota,, 1873 ; Do. 8, Id., 1876 ; Do. 31, Dept. of Cal., 1872; Do. 55, Id., 1874, Do. 5, 74, Dept, of the Mo., 1875; Do. 61, Id., 1876; Do. 77, 80, Id., 1881; Do. 18, Id., 1893; Do. 29, Div. of the Atlantic, 1874; Do. 23, Id., 1875; Do. 68, Id., 1888; Do. 144, Dlv. of Pacific & Dept of Cal., 1880; Do. 1, Dept. of Dakota, 1885 ; also Do. 69, Hdqrs. of Army, 1877, (remarks of Gen. Hancock.) The instances referred to in these Orders, while mostly cases of desertion, include also cases of larceny and of drunkenness on duty. "This ruling was preceded by that of the court in the case of Capt. Barron of the Navy in 1822, where it was he'.d that the plea of guilty of the accused should "not prevent the introduction of a^y testimony which the court may deem It cecessary to hear on the part of the prosecution," MHilTAEY LAW AND PRECEDENTS. 279 capital cases, and especially cases of desertion, not to receive the plea 419 of guilty, but, entering for the prisoner the plea of not guilty, to "de- termine the grade of the offence and quantum of guilt by the character of the evidence produced to them." Next, in a General Order, No. 23 of 1830, it was declared by the same authority that : — " In every case in which a prisoner {)leads guilty, it Is the duty of the court-martial, notwithstanding, to receive and to report in Its proceedings such evidence as may afford a full knowledge of the circumstances; it being essential that the facts and particulars should be known to those whose duty it is to report on the case, or who have discretion in carrying the sentence into effect.." Later, in No. 21 of the Orders of 1833, the General Commanding, in remarking that the old rule, that no evidence should be received with the plea of guilty, had been abrogated by recent Orders, disapproves the action of a certain court-martial in disregarding the same and refusing to allow the judge advocate to show, notwithstanding such plea, the facts and circumstances of" the case, which — it is declared — are essen- tial both to the reviewing ofiScer and to the President as the pardoning power. Still later, in G. O. 36 of 1835, another court-martial is pointedly censured for a similar disregard of Orders and of the opinion of the Attorney General. This was an opinion of Atty. Gen. Butler, in the case of Cadet Crittenden, addressed to the ' Secretary' ef War on April 11, 1834," "in answer to questions proposed upon a statement prepared by Gen.- Macomb." It is here held that — " it is the duty of a court-martial in all cases where the punishment of the offence charged is discretionary, * * * and the specifications do not show all the circum- stances attending the offence, to receive such testimony as the judge advocate may offer for the purpose of illustrating the actual degree of the offence, not- withstanding the party accused may have pleaded guilty. * * * if there be any exception to this remark, it is where the specification is so full and precise as to disclose aU the circumstances of mitigation or aggravation which accompanied the offence. Where that is the case, or where the punishment is fixed, and no discretion is allowed, explanatory testimony cannot be needed." This opinion was incorporated in par. 31 of Art. 35 of the issue of the Army Regulations of December, 1836. In the Regulations of 1841, the opinion, con- densed to a few lines, and limited to "cases of enlisted soldiers," is 420 published as par. 228; and tSe same paragraph, (numbered 320,) is re- peated in the issue of 1847. It does not appear in the Regulations of 1857 nor thereafter. Revived during the late war, attention was frequently called to this principle by the Judge Advocate General, who held that a court- martial was authorized, notwithstanding the plea of guilty, and even where the sentence was not discretionary," to receive evidence on the merits, with a view to determining the actual criminality of the offender and the measure of punishment which should properly be executed, in any case in which such evi- dence was deemed to be essential to the due administration of military justice. And this even against the objection of the accused, who " could not properly be allowed, by pleading guilty, to shut out testimony where the interests of the public service required its introduction." Of course, where evidence was thus admitted, the accused was to be afforded the opportunity of offering rebutting evidence, the testimony on both sides being governed by the usual rules In " Published In 2 Opins. At. Gen., 636 ; also in G. O. 32 of 1834. " See G. C. M. O. 37, Dept. of the Mo., 1880, where it is observed by Gen. Pope : — " While the punishment may he fixed, yet testimony Is necessary and proper for the con- sideration of the Reviewing Officer, who may, I'.nder the powers conferred upon him by law, pardon or mitigate the punishment." 280 MILITARY LAW AND PRECEDENTS. regard to relevancy, &c." These views have been adopted and acted upon in repeated cases published in Department, &c., Orders,'* and — especially as relat- ing to cases of desertion to which they are peculiarly applicable — ^have been announced in a G. O. of the War Department." With the plea of Not Guilty or Guilty begins the Trial proper," which we now proceed to consider. "Digest, 587. " See G. O. 54, Army of the Potomac, 1861 ; Do. 91, Id., 1863 ; Do. 57, Dept. of Wash- ington, 1863 ; Do. 20, Northern Dept., 1865 ; Do. 33, Dept. of the N. West, 1864 ; Do. 52, 58, 91, Dept of Arkansas, 1864 ; Do. 24, Dept of Va., 1865 ; Do. 81, 114, Dept of the Mo., 1867 ; Do. 39, Dept of the Platte, 1870 ; "Do. 45, Third Mil. Dist., 1868 ; Do. 42, Fifth Id., 1867 ; G. C. M. O. 72, Dept of the Platte, 1887 ; Do. 1, Dept. of Dakota, 1888. And see Simmons § 553, 1005 ; Tytler, 238 ; Macomb, 38-9 ; De Hart, 135. The contrary view, that, where the accused pleads guilty, no evidence can be Introduced against his objection, is expressed by O'Brien, 250, 251. And sec Ben6t, 95. «G. C. M. O. 69 of 1877. " The trUU begins " when the jury is charged with the prisoner. Previous to this everything that is done is merely preliminary," McFadden o. Com,, 23 Pa. St, 12. CHAPTEE XVIL THE TSIAIi. 421 StrPPosiNe all preliminary objections, motions, and special pleas, if any, to have been disposed of, and tlie accused to have pleaded " not guilty " to at least a portion of the charges and specifications,— all is now prepared for the Trial on the merits; and this subject will be considered in the present Chapter under the following heads: — I. The hours of session of the court; II. The Opening of the prosecution or defence ; III. The general course of pro- ceeding ; IV. The Defence ; V. The concluding Statement ; VI. Contempts. The Important subject of Evidence will be presented in a separate Chapter. I. THE HOURS OF SESSION OF THE COURT. THE IiAW OH THE SUBJECT. This subject is regulated by Art. 94 of the code, as follows :-;-" 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, reqmre immediate example." PXTBPOSE OF THE ARTICIiE. The object of this statute, which dates in our law from the Articles of 1775, and is but a modified form of a similar pro- vision in the first Mutiny Act, is, as explained by military writers,' to prevent the daily attendance upon the trial from being too protracted and onerous, to obviate hasty action on the part of the court, and to afford an opportunity to the judge advocate to write up the daily record. In an opinion of an Attorney General,' it is represented as a purpose of the Article, " to guard against 422 Improper secrecy," i. e., by precluding courts-martial from sitting during hours when their proceedings would not readily be subject to public scrutiny. ITS LEOAIi EXTECT. The provision of the Article, being confined to "proceedings of trials," is not to be extended to action taken by the court which is not properly a part of the trial. Thus it has been held that the fact that a court entertained a motion to adjourn after three o'clock p. m. did not constitute a violation on its part of the Injunction of the statute." As a rule of pro- cedure on the trial, however, the injunction is invariable,' While a court is not required to sit during the entire period between the hours specified, and may, on any day of Its sessions, open later than eight o'clock a. m., or close 'Hough, 377; Copp^e, 50. '11 Optus.. 141. ^DIOBST, 111. 'Hough, 377; Digest, 110. Hough, (p. 378,) observes; "All offlcei's are supposed to regulate their watches by the time of headquarters, and by such should n court, I apprehend, be regulated In their proceedings." The uncompleted proceeding, whatever its nature, should be at once interrupted at the fixed hour. Thus Hough, (p. 192,) notes a case where—" three o'clock striking, the court adjourned in the midst of its delibera- tions," (on the setitence.) 281 282 MILITAEY LAW AND PRECEDENTS. earlier than three o'clock p. m., yet in the absence of the specific authority indicated in the last clause, it can not properly sit outside of the designated limits, and, if it does so, its proceedings, while not, in the opinion of the author, legally invalidated, the provision being regarded as directory only,^ are neces- sarily irregular, and the members of the court are amenable to justice for a disregard of the statutory direction:' their proceedings and sentences also are liable to be formally disapproved by the reviewing officer, if the objec- 423 tion is deemed sufficiently material.' Strictly indeed, in the author's opinion, it is only those portions of the testimony or proceedings of trials which are had without the hours named that can be afEected, and if such testimony or proceedings can afterwards be repeated and gone through with de novo, within the proper hours, the defect in the action of the court may be remedied." It is also only where the record shows affirmatively that the legal hours were disregarded by the court that the proceedings are, so far forth, to be treated as irregular and liable to disapproval." It is not required, in the Article or elsewhere that the record shall specifically set forth the hours of assembling and adjournment, and where none are stated, it will properly be presumed, in favor of the olficial record, (in the absence of clear proof to the contrary,) that the injunction of the Article has been duly observed by the court." EXCEPTED CASES. The Article, in its last clause, in excepting from its general operation, " cases which, in the opinion of the officer appointing the court, require invmediate example," confers upon such officer a discretion similar to that vested in him by Arts. 75 and 79, for fixing the number and rank of the members." The exception may be said to refer mainly to cases where, by reason of some such condition as the pressure of business upon the court or of other duties upon the members, the need of prompt discipline in the command, the gravity or peculiar circumstances of the offence or offences to be tried, or the exigencies of war or of the service, it is deemed desirable that the proceedings should be especially expedited. The term " immediate example " has been vari- ously construed by convening officers — by some quite strictly and by others much more freely. As all cases of military offences, referred after due investigation to courts-martial for trial, may be said in a general sense to require immediate example, i. e. to call for as speedy justice as can reasonably be administered, a broad interpretation of the term employed and liberal use of the discretion reposed by the Article are believed by the author to be in general justified. 424 No case is known to have occurred in our service where the abuse, to the prejudice of the accused or of justice, of such discretion, has been made the occasion of a military charge. » It has indeed been ruled in Orders, (G. C. M. O. 66 of 1890,) in a case in which a general court martial, convened at West Point, " conducted its proceedings in part " after 3 p. m., without express authority, that its proceedings were rendered "null and void." With such ruling the author is unable to concur. It may be added that In this case it was recommended by the Acting Judge Advocate General that the error he corrected by reconvening the court and " continuing the trial from the point arrived at at 3 p. m." But this course was not taken. » Hough, (p. 386,) cites a case of a convening and reviewing officer convicted upon charges of permitting a court-martial to carry on Its proceedings after 3 p. m., and of approving and executing a sentence then adjudged ; and sentenced to be reprimanded. ' See cases of such disapproval in G. 0. 2, Dept. of the South, 1873 ; Do. 94, Dept. of the Gulf, 1864 ; S. O., 281 ; Dept. of Washington, 1861. « Compare case cited by Hough, 378 ; Id., (P.) 31, 787 ; Hughes, 168. •Digest, 110, 111. "As to the presumption in favor of the regularity of Judicial proceedings, see 1 Greenl, Blr, 8 10, " See De Hart, 42. MILITAKY LAW AND PEECEDENTS. 283 EORK OF AUTHORIZING DISBrEOABD OE STATED HOtTBS. As to the form for the exercise of tKe discretion, and for authorizing the court to com- mence or continue its dally proceedings independently of the general restric- tion of the Article — this, in our service, is almost invariably given in one par- ticular mode, vits. by a direction added in the convening order, or in a subsequent order issued pending the trial," (for the authority may be given at any stage at v^hich an occasion for it may be deemed to have arisen,) that " the court will sit without regard to hours," or " is authorized to sit without regard to hours," or in words to such efCect" A PBOVISIOU LIABLE TO OBJECTION. Whether this Article has not proved rather embarrassing than advantageous in practice is a question which has been considerably discussed. In the report of the Committee on the Judi- ciary of the Senate, of February 18, 1885; heretofore cited, It is observed as follows : — " The committee also thinks that it will be expedient to amend Article 94 of the Articles of war, so as "to provide that the court-martial shall have power to regulate the time and duration of its daily sittings." No amend- ment, however, has yet been made. In the opinion of the author, this anti- quated provision interposes an artificial obstruction to the efficiency and con- venience of military administration which it Is time should be done away with. The more rational rule of the British military code authorizes courts-martial to sit between the hours of 6 a. m. and 6 p. m., and later than 6 p. m.. If the court considers it necessary." II. THE OPENING OF THE PROSECUTION OR DEFENCE. This proceeding, by which the introduction of the testimony may be 425 prefaced, is not common in our practice, and openings are even more rarely made by the accused than by the prosecution. An opening is in- deed much less called for before a court-martial, where the proceedings are in general simple and summary, than before a civil jury. In complicated cases, however, as where there are numerous charges or specifications, or where, ac- counts or money transactions are to be inquired into, it may be of considerable advantage, both to the parties and the court, for the judge advocate, prior to entering upon the evidence for the prosecution, to present, orally, or by read- ing from a writing, a brief statement of the testimony proposed to be offered to establish the several charges and of the principles of law deemed applicable to the case. In so doing, he may read from law books, published legal opinions, &c. He will properly be careful, not to misrepresent the evidence — stating only what facts can be proved — and especially not to attempt to create in advance an unfair impression against the accused. Argument also is out of place here and should be postponed till the final address. Subject to these restrictions, a clear and compact statement of the facts and the law, on the part of the prosecution, by rendering the issues intelligible from the outset, may mate- rially simplify and facilitate the investigation and contribute to the exclusion of collateral and irrelevant matter, and an opening of this character would be advised in all cases of difficulty and Importance. And so of an opening on « See the order issued toward the conclusion of Gen. F. J. Porter's trial, (in time of war 1862-3,) for the purpose of expediting the proceedings. Printed Trial, p. 209. "G O 9 of 1892 now directs in terms — " Whenever a court-martial Is ordered to sit without regard to hours, the order must state that it is necessary for the sake of immediate example.' w Rules of rrocednre, 68 ; Story, 24. 284 Mn.ITARY LAW AND PRECEDENTS. the part of the accused, where the- defence promises to be an elaborate one, In- volving the examination of numerous witnesses or 'B.n extended discussion of points of law." III. THE GENERAL COURSE OF PROCEEDING. SEPAEATION AND EXCLUSION OF WITNESSES. In order to gaard against collusion between witnesses, as well as the unconscious coloring of his testimony to which a witness is liable in listening to the statements of previous witnesses as to the same part of the case, it is the usage upon military as upon civil trials to separate the witnesses by excluding from the court- 426 room at the outset of the trial all except the one about to testify, and subsequently permitting only those to be present who have fully given their evidence. The judge advocate, at the beginning, generally and properly, notifies the witnesses present to remain in an anteroom or outside the court- room, to await being called in, each in his turn. When this has not been done, the President, as the organ of the court, will ordinarily preface the hearing by a similar direction. Where the precaution has been omitted, either party may, at this or a later stage, bring the fact, that witnesses who have not yet been examined are present, to the attention of the court, which will thereupon prop- erly order them to withdraw. The rule of exclusion should embrace all the witnesses, and not merely those of the party whose side of the case is about to be presented. It should be enforced by the court, (upon Its own motion or at the instance of either party,) at all stages of the trial, so that any witness or witnesses yet to testify, who may be discovered to have come into the court- room, through ignorance or disregard of the preliminary direction, may be at once sent out. In civil cases the witnesses are sometimes also cautioned by the court not to converse together or with other persons upon the subject of their testimony. By military courts a direction to this effect is rarely given, but in a case of importance, which had excited public interest and become matter of common tall£, such a warning would not be out of place. The rule of exclusion, it may be added, has been extended, in the civil prac- tice, to cases where, at the trial, a discussion has arisen upon the testimony or proposed testimony of a witness under examination. Here, on motion of either party, a court-martial, lllie a civil court, will, ordinarily and properly, cause the witness to withdraw pending the argument. It may also be noted that a witness who, having been examined, is proposed to be re-examined at a subsequent stage, or to be called as a witness by the other side, wiU properly be directed to remain out of the hearing of the other witnesses till again called in ; the rule properly applying to all witnesses who have not been finally discharged as such. If a witness, though notified to retire, has remained In court during the examination of a previous witness, while he may — If a military person — 427 be amenable to a charge under Art. 62, he is not disqualified from testi- fying ; his credibility only, not his competency, being afEected. To the general rule of exclusion certain classes of witnesses have been recognized as exceptions. These are those summoned as experts, who must often necessarily hear the evidence which precedes their own as a basis for " On the subject of the Opening, Bee 1 Bishop, C. P. S 967-972 ; U. S. •». Mingo, 2 Curtis, 1 ; Simmons § 570 ; O'Brien, 252 ; De Hart, 149. Openings for the defence ap- pear more frequently In the early cases. See, for example, Trial of Lt. Col. Bacbe, p. 24. A later Instance of an extended opening Is to he found in the Trial of Capt. Hurtt, p. 158. MrLITABY LAW AND PKBCEDENTS. 285 forming their opinions ; those called to testify as to character only ; and further any person intended to be used as a witness who may be present In the capacity of a member of the court, judge advocate, or counsel. The prosecuting iuitness. If any, is generally permitted to remain in court, but not till after he has himself fully testified." INTRODUCTION AND HEARING OF THE TESTIMONY. The judge advocate now proceeds to introduce and examine his witnesses, subject to cross- examination on the part of the accused, and also to offer such depositions and written evidence as he may have to exhibit, and having completed his showing he announces that the prosecution rests. The examination should be conducted in the form of separate questions separately responded to, and not, as has some- times been done, by reading the specification to the witness and asking him what he knows in regard to its allegations." The prosecution having closed its examination in chief, the accused then produces similarly the proofs on his side and similarly rests in conclusion. Evidence in rebuttal may follow on the part of the prosecution, and this, Jn the discretion of the court, may be suc- ceeded on the part of the accused by evidence in reply to the same. The hearing cannot legally be interrupted except by- a noUe prosequi or a dissolution, ordered by the proper superior. Qualifying of witnesses. The witnesses, standing with up- 428 lifted hand, qualify by taking in open court" the form of oath (or af- firmation) prescribed in Art. 92. A witness, though he be recalled, or after testifying for one side be required to testify anew and in chief for the other, is never sworn but once, vig. when he first takes the stand. The Article fails to indicate by whom the oath shall be administered," but, according to the established usage of our service, the witnesses are sworn by the judge ad- vocate, who is now also specially authorized to perform this function by the Act of July 27. 1892. The judge advocate, when himself appearing as a wit- ness, is sworn, according to usage, by the president of the court. In view of the mandatory injunction of the Article, the form of the oath may not be de- parted from; but the witness may accompany the form by such additional ceremony as is habitual with persons of his religious sect. Thus Roman Catholics are usually sworn on a copy of the Evangelists, with a cross impressed upon or affixed to it, which is kissed by the witness. Jews are sworn by the five books of Moses, and in being qualified wear their hats. Chinese are be- lieved to be now more commonly sworn, not by the breaking of a saucer," or " On the subject of this title see 1 Greenl. Bv. § 432 ; 1 Bishop, C. P. § 1188-1193 ; V. S. V. Cole, 5 McLean, 529 ; State v. Zellers, 2 Halst., 225 ; Com. v. Hersey, 2 Allen, 176, McLean v. State, 16 Ala., 672; Thomas v. State, 27 Ga., 288; Sputhey v. Nash, 7 C. & P., 632 ; Keglna v. Murphy, 8 M., 297 ; Gen. Whltelocke's Trial, vol.. I, p. 2 ; Adml. Byng's Trial, p. 7; Simmons § 569, 942, 943; Tytler, 249; O'Brien, 203; Dc Hart, 148. That a court was in error where It refused the request of the judge advocate, that the prosecuting witness should be allowed, after testifying, to remain in court, was properly held by Gen. Miles, in G. C. M. O. 20, Dept of the East, 1894. " See G. C. M. O. 38, Dept. of Dakota, 1892 ; O'Dowd, 10. " See G. O. 1, Div. of the Pacific, 1866, where the swearing and examining of one of the witnesses out of court, and in the absence of the accuspd, Is commented upon as an Illegal proceeding. i» The similar form at oath prescribed by the first Mutiny Act was specifically authorized and directed to be administered by the "Judge Advocate or his Deputy." The Articles of 1776 provided that the oath be administered by the president ; those of 1786 that it be administered "by the court." The present form of the statute dates from the Article of 1806 which was silent as to this particular. "This was the form observed in the reported case of Beglna v. Hntrehman, 1 C. & M., 248. 286 MELITAEY lAW AND PRECEDENTS. burning of a joss-stick, but by the usual form of oath, administered through the medium of an interpreter who explains it to the witness ; and Indian wit- nesses have been sworn in a similar manner. A deaf and dumb witness, (having sufficient intelligence to comprehend the obligation,) is sworn through an interpreter.^ Order and sequence of testimony. Subject to the distinction of the several stages of the Examination — the Direct, Cross, and Re-direct examinations — which are properly to be kept clearly apart, the court will in general 429 leave it to the parties — judge advocate and accused — to introduce their witnesses, and written testimony, in such sequence as may be found by them most advantageous or convenient. Further, in its discretion and in the interests of truth and justice, the court may permit material evidence to be introduced by a party quite out of its regular order and place. Thus it may not only admit evidence at a later period of an examination which should regu- larly have been introduced at an earlier, allowing a witness to be recalled for direct or cross examination upon a question or questions inadvertently omitted ; " but it may permit a case once closed on the part of the prosecution or defence, or on both sides, to be reopened for the introduction of testimony previously omitted or discovered since the closing."' Even where the party is chargeable with laches in not offering the testimony at the proper time, the court may still permit its subsequent introduction if of so material a character that Its exclusion will leave the Investigation Incomplete. But where new testi- mony is thus admitted, it must be admitted subject to the right of the other party to cross-examine and rebut" Examination by the court. Wliile it is no part of the province of the 430 court to conduct either the prosecution or the defence, It is open to any member to put questions to the witnesses for either side. But this, though it may be done at any stage of a protracted exaiulnation where some matter, which may be forgotten if not noticed at the moment, has not been made quite clear by the witness. Is in general postponed until both the parties have concluded their examinations, and is then resorted to for the purpose only or mainly of the elucidation of some part of the testimony which has been left obscure.™ A member may also suggest a question to be put by the judge advocate or accused where he has omitted to elicit some material particu- lar. Further, while the court cannot legally "originate" evidence,'" i. e. take » 1 Greenl. Ev. § 366. " Sec 1 Bishop, C. P. § 966, and cases cited ; People v. Keith, 50 Cal., 137 ; Simmons S 580 ; De Hart, 159 ; G. C. M. O. 47, Dept. of Texas, 1872. The court may induce the recalling of a witness for its own information, De Hart, 174. " 1 Bishop, C. P. § 966 ; E. E. Co. v. Steinburg, 17 Mich., 99 ; Bberhart i). State, 47 Ga., 598 ; Lang v. Waters, 47 Ala., 625. Compare Lieut. Gen. Sir John Mordaunt's Case. Simmons, 383, note. In the leading case, at which the author officiated as Judge advocate, of B. G. Harris, (see Printed Trial,) the defence was permitted to introduce new evidence after both sides had formally closed and the court had adjourned for two days to give the accused time to prepare his argument. In several military cases evidence has been admitted even after the reading of the final statement of the accused. See G. O. 31, Dept. of Fla., 1865 ; Do. 11, Dept. of La., 1869 ; Do. 149, Dept. of the Mo., 1870; G. C. M. O. 143, Div. Pacific & Dept. of Cal., 1880. On Lieut. Hyder's Trial, (p. 141,) evidence was held admissible, in the discretion of the court, after both ad- dresses had been made. Evidence, however, which, though material, Is merely cumu- Jative, should not thus be admitted. «See cases In G. O. 73 of 1829; Do. 31, Dept. of Fla., 1865; Do. 11, Dept. of La., 1869 ; Do. 149, Dept. of the Mo., 1870 — where the action of the court in refusing this right to the accused is disapproved. 2» Simmons § 577; O'Brien, 253; De Hart, 157; Lieut. Hyder's Trial, 143; Gen. Dyer's Court of Inquiry, Part I, 269; G. O. 21, Dept of the Platte, 1866. ^ De Hart, 85 ; G. O. 11, 17, Dept of La., 18fi!). MILITARY XjAW AND PRECEDENTS. 287 the Initiative in providing any part of tlie proofs, yet where, vyith a view to a more thorough investigation of the case, it desires to hear certain evidence not introduced by either party, it may properly call upon the judge advocate to procure the same if practicable, adjourning for a reasonable period to allow time for the purpose. New testimony thus elicited must of course be received subject to cross examination and rebuttal by the party to whom it is adverse." The testimony to be in open court. All testimony, whether oral or writ- ten, and whether upon the main or an interlocutory issue, is to be introduced in open court, and no testimony can be received by the court during a 431 period of deliberation after it has been cleared." So, where a member of the court has knowledge of material facts in the case, he cannot properly communicate the same privately to the court when cleared for de- liberation, or to the other members, but should cause himself to be sworn as a witness on the part of the prosecution or defence. To the rule that the testimony shall be taken in open court, an exception has been recognized in a case where a material witness, commorant at the station at which the court is assembled, Is unable, through sickness or other disability, to attend, and the exigencies or interests of the service do not justify waiting for his recovery. In such a case the court may temporarily adjourn to the quarters or hospital where the witness may be, and receive the testimony, taken in the usual manner." The completing of the testimony not to be interfered with. After the testimony has been entered upon, it cannot, if material, properly be allowed to be interrupted, except of course through action of the superior authority which created the court, in the form of an order dissolving it or suspending the pro- ceedings, or through the authoylzed entry of a nolle prosequi.'" The court itself cannot refuse to hear witnesses proposed to be offered by either party, provided they are competent and their testimony is material" and not unreasonably cumulative ; °^ nor can a party, by any act or objection, shut off the exhibition by the other party of evidence pertinent to the proof of his case. Even an 2' See G. C. M. O. 48, Div. Pacific & Dept. of Cal., 1880. It may be noted here that the " confronting " of witnesses, or the causing by the court of two witnesses who contradict each other to he brought into court together and subjected to further interrogatories with a view to reconcile their statements, has been referred to as allowable by some authorities. See Simmons § 590 ; Kennedy, 195, O'Brien, 266, 296 MILITAIIY LAW AJST) FRBCEDENTS. ceedlngs and investigate liis condition, reporting the result to the com- 445 mander ; " or, preferably, simply report to him the apparent fact, for such investigation or other action as he may see fit to institute. OBEDIENCE TO ORDERS. That the act charged as an offence was done in obedience to the order— verbal or written"— of a military superior, is, in general, a good defence at military law." The act, however, must have been duly done— mvst not have been either wanton or in excess of the authority or discretion conferred by the order. Thus an officer or soldier ordered to suppress a mutiny or disorder or to make an arrest, a guard ordered to keep in custody a prisoner, or a sentinel ordered to prevent persons from passing his post, will not be justified in taking life or In resorting to extreme violence, where the object of the order can be effectually accomplished by more moderate and customary means: otherwise where the forcible resistance of the party, his persistence in disregarding warnings, his sudden flight, &c., render it impracticable to seize or stop him without extreme violence or the use of a deadly weapon." Further the order, to constitute a defence, must be a legal one." It must emanate from a proper officer — a superior authorized to give it — and it must command a thing not In itself unlawful or prohibited by law. In other words, it mrust be an order which the Inferior is bound to obey. While obedience by inferiors is the fundamental principle of the military service, it is yet required to be rendered only to a lawful order." It is " the lawful orders ot the superiors appointed over them " that " all inferiors " are, by par. 1 of the Army 446 Regulations, " required to obey strictly and to execute promptly ; " and it is the "lawful command of his superior officer" which by the 21st Article of war, " any officer or soldier " may be punished even with death for disobeying. But for the inferior to assume to determine the question of the lawftilness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline."* Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey It according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so mani- "G. 0. 10, Dept of the Gulf, 1866; G. C. M. O. 39, Dept. of the Mo., 1868. And compare People v. Ah Ying, 42 Cal., 19. " See Pollard v. Baldwio, 22 Iowa, 328. So, no particular form of words is required if the order is so expressed as to be Intelligible. State v. Small and State v. Hill, Smith's Beports of Decisions in Militia Cases, pp. 57, 83. H Simmons § 594 ; Bombay B., 16 ; DeHart, 165 ; Ben6t, 119. « See V. S. V. Clark, 31 Fed., 710 ; Digest, 486 ; and compare title " Bequirements of military discipline," post, and authorities cited thereunder; also civil cases cited under Paet III, post. Where the exceeding of the order was only the result of an extreme zeal, the offence was held to be extenuated. G. 0. 5, Dept. of Tenn., 1866. *°I>iGB8T, 27-8. See adjudged cases illustrating this principle cited under Part III, post. " See Chapter XXV — TwEifiM-PiBST Abticui. » In 2 Opins., 713, the Attorney General, referring to a certain military ordw, held to be legal, says: "It is not for the subordinate officer who receives it to judge of the fitness or legality of such order ; for the case must be an extreme one which would Justify him in refusing obedience." In a leading case in the navy, Dinsman v. Wiltes, 7 Howard, 403, the Supreme Court observes : " There would be an end of all discipline if the seamen and marines on board a ship of war on a distant service were permitted to act upon their own opinion of their rights, and to throw off the authority of the com- mander whenever they supposed it to be unlawfully exercised." It may be noted that the ruling in an adjudged militia case. State v. Woodman, Smith's Beports of Decisions, 25, that, to entitle a superior to the obedience of his inferior, " his command must be lawful and reatonable," could scarcely be accepted as good law for the army. MILITAEY lAW A2SrD PBECEDBNTS. 297 festly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawf ulness." Such would be a command to violate a specific law of the land or an established custom or written law of the military service, or an arbitrary command imposing an obligation not justified by law or usage,"" or a command to do a thing wholly irregular and Improper given by a superior when incapacitated by intoxication or otherwise to perform Ms duty. Except in such instances of palpable illegality, which must be of rare 447 occurrence, the inferior should presume that the order was lawful and authorized' and obey it accordingly, and in obeying it he can scarcely fall to be held justified by a military court.' It may be added that an order which might not be regarded as legal in time of peace, may furnish to the inferior obeying it a complete defence in time of war, as being warranted by the laws and usages of war. This point, as also this Title in general, will be illustrated in treating of the eiml amenability of military persons in Past HI, COMPULSION or THE ENEMY, &c. This defence, as establishing an absence of criminal capacity, is recognized as valid in cases of persons charged with having joined the public enemy in war, or with having associated them- selves with rebels, mutineers, and the lilie, and who claim to have done so through compulsion or inevitable necessity. But it is held in the adjudged cases on the subject that such defence can be sustained by nothing short of proof of an Immediate danger of death threatened by the enemy or other com- pelling party; that neither a menace nor Impending danger of bodily injury less than loss of life, nor a well-founded apprehension of iiecuniary loss or injury to property, wiU amount to a justification in law.' Military courts indeed might feel warranted in relaxing this strict rule In special cases, as it was in fact relaxed in certain extreme cases of prisoners of war charged with desertion to the enemy in the late war.* It is to be added that even where the compulsion has originally so overpowered the will of the party as to constitute a legal justification, he may yet forfeit his right to have it allowed as a 448 defence, by voluntarily remaining and acting with the enemy, &c., not- withstanding opportunity of escape has been offered." " A soldier is justified In law In obeying all orders of Ws commanding officer, " unless they are obviously, and in a manner patent to common sense, Illegal." Forsyth, Const. Law, 216. And see Digbst, 28 ; Tullock, 32 ; O'Brien, 83 ; De Hart, 166 ; Desty, Am. C. L., 20 a ; Despan v. Olney, 1 Curtis, 306 ; Eiggs v. State, 3 Cold., 85. And compare Chapter XXV — TwBNTT-FiHST AanciiB. "I" Such as the order to a soldier to take his clothes to be washed by a particular laundress,- held illegal in G. C. M. O. 87, Dept. of the Bast, 1871. ^ See G. O. 34 of 1852, where the general rule Is laid down by the Secretary of War, (Mr. Conrad,) that an inferior " should act upon the reasonable presumption that his superior was authorized to issue an order which he might be authorized to issue. If he acts otherwise, be does so at his peril, and subjects himself to the risk of being pun- ished for disobedience of orders." 'In a case of an act done under an order admitting of anestion as to its legality or authority, the inferior who executed it will be more readily justified than the superior who originated the order. See G. O. 27, Dept. of Pa., 1865 ; McCall v. McDowell, Deady, 233. ' See McGrowther's Case, Foster, 14 ; Oldcastle's Case, 1 Hale, P. C, 50 ; Respnblisa v. McCarthy, 2 Dallas, 87 ; IT. S. v. Vigol, Id., 347 ; U. S. v. Hodges, 2 Wheeler, Cr. Cas., ■477 ; U. S. V. Grelner, 4 Fhllad., 396, 401 ; Simmons g 597. * Digest, 614. 5 " The force and fear must continue all the time the party remains with the rebels. It is incumbent on every man who makes force his defence to show an actual force, and that he quitted the service as soon as he could." McGrowther's Case, ante. " Those that supplied with victuals Sir John Oldcastle and his accomplices then in rebellion were acquitted by the judgment of the Court, because it was found to be done pro timore mortis, et quod recesserunt quam oito potuerunt." 1 Hale, P. C, 60. And see Bespublica v. McCarthy, ante; Digbst, 614-15. 298 MILITAEY LAW AND PRECEDENTS. BEQUISEIIEITTS OF MILITABY DISCIPLINE. As an Inferior may de- fend on the ground that his alleged offence was committed in due obedience to a legal order of a superior, so a superior, when charged with some extreme vio- lence or severity toward an inferior, may claim in defence that his alleged act was justified by the requirements of military discipline. This defence, how- ever, should not be accepted as suflScient by a court-martial except in cases where it clearly and satisfactorily appears that the insubordination, criminal attempt, or misconduct of the inferior, could not have been repressed or prevented with- out a resort to the extreme measure which is the subject of the charge. In practice the strlMng or otherwise assaulting of soldiers, as well as the inflic- tion upon them of summary and imauthorized punishments, by officers, have repeatedly been made the occasion of trials by court-martial, and where not proved to be fully justified by the demands of discipline have induced severe sentences, or, if not thus visited by the courts, (which in some instances have shown themselves too Indulgent to the accused,) have called forth severe repro- bation from the reviewing commanders.' Personal violence employed by an officer against a soldier, by the use of the fist, the sword or otherwise, is always an extreme measure, and must constitute a serious military offence when resorted to in a case where an emphatic and dignified command, or an 449 immediate arrest ordered, would have put an end to the insubordination.' And the prUiciple governing such cases is of course to be applied with especial strictness to those in which, in the enforcement of discipline, life has been taken.' In all cases Indeed of this general class it should be satisfactorily established that the act was imperatively called for by the necessities of dis- cipline at the time; that to all appearance, or in all reasonable probability, the mutineer or rioter could not have beai repressed, the escaping deserter or prisoner recaptured, the assailant subdued, the insubordinate inferior re- strained or made subordinate, or the rescuer prevented, by any less extreme measure than that actually employed.* Otherwise the defence should not be accepted as sufficient And in time of peace the superior should be held to a stricter responsibility than in war." The law on this subject has been abun- dantly illustrated not only in military cases but in a series of civil prosecutions." ' See G. 0. 81 of 1822 ; Do. 28 of 1829 ; Do. 47 of 1830 ; Do. 64 of 1832 ; Do. 34, 53 of 1842 ; Do. 2, 4, 6, 17, 68 of 1843 ; Do. 2, 39 of 1844 ; G. C. M. O., 645 of 1865 ; Do. 80 of 1876, G. O. 53, Dept. of Va. & No. Ca., 1864 ; Do. 22, Dept. of the Platte, 1867 ; Do. 40 ; Dept. of the East, 1868 ; Do. 9, Dlv. of the Atlantic, 1869 ; Do. 5, Id., 1870 ; Do. 50, Dept. of the Mo., 1871 ; Do. 93, Dept. of the South, 1873 ; Do. 62, Div. Atlantic, 1888 ; Do. 29, Navy Dept, 1890 ; also Chapter X — " Disciplinary Punishments." ' See cases in the followinB Orders in which officers have been held to account for the unjustifiable striking, &c., of soldiers : — G. O. 64 of 1832 ; Do. 4, 6, 68 of 1843 ; Do. 2, 39 of 1844 ; Do. 53, Dept. of Va. & No. Ca., 1864 ; Do. 22, Dept. of the Platte! 1867; Do. 9, Div. of the Atlantic, 1869; Do. 5, Id., 1870; G. C. M. O 29 Dept of the Mo., 1893. ' See cases of officers dismissed, &c., for unjustifiably taking the lives of inferiors,— In G. C. M. O. 14 of 1871; Do. 28 of 1873; Do. 47 of 1877; Do. 112, Dept. of the East, 1870; G. O. 87, Northern Dept., 1864; Do. 89, 56, Dept. of the Susque- hanna, 1864; Do. 44, Dept. of West Va., 1864; Do. 7, Dept. of Pa., 1865; Do. 17, Dept of Ky., 1865; Do. 54, Dept. of So. Ca., 1865; Do. 25, Dept. of La., 1866; Do. 89, Second Mil. Dist., 1868. And compare Lieut. Gamage's Case, Hickman, 197-9 ; Cases of Maxwell and Porteous, Prendergast, 162-7. •See Digest, 486. So, at maritime law, the master "may use a deadly weapon, when necessary to suppress a mutiny, but only when mutiny exists or is threatened." Thompson v. The Stacey Clarke, 54 Fed., 534. "Digest, 486. "U. S. V. Cornell, 2 Mason, 60; V. S. v. Travers, 2 Wheeler Cr. C, 490- TJ S v. Carr, 1 Woods, 484; D. S. v. Clark, 31 Fed., 710; U. S. v. King, 34 Fed., 302 ; U S v. Pullhart. 47 Fed., 802 ; Case of Slfford. 5 Am. Law Reg., 659 ; D. S. v. Unzee, Utah, (1894.) And compare In re Neagle, 39 Fed., 833. [The ruling in the recent case of toms (Com. V. Hawkins and Streator, Ct. of Com. Pleas, Pa., 1892,) remarked upon in Part III, pott, is not regarded as sound law or sustained by the precedents.] MILITARY lAW AND PKEOEDENTS. 299 V. THE CONCLUDING STATEMENT. 450 OP WHAT IT CONSISTS. The testimony on both sides being con- cluded, either party or both parties — the accused first in order and the judge advocate after him— may present a closing " statement " or address to the court, which may be oral but is commonly read from a writing. While, strictly, the closing of the argument, as of the proof, belongs to the party who has the affirmative of the Issue," the order indicated is that now invariably observed in the practice of our courts-martial, whatever be the nature of the defence, if any, which may have been made.'" The statement, if in writing, is signed and attached to the record as an exhibit ; if verbal, it is generally entered In the body of the record," in the words, as nearly as they can be given, of the party. The statement may consist of a brief summary or version of the evi- dence, with such explanation, or allegation of motive, excuse, matter of extenua- tion, &C., as the party may desire to offer, or it may embrace, -with the facts, a presentation also of the law of the case and an argument both upon the facts and the law. ITS PBiIVIIiEGE. A very considerable freedom is allowable here within certain limits."' The accused, for example, in his statement may sharply criti- cize the testimony as given by the adverse vyitnesses, and their apparent or supposed animus in giving it, as well as the conduct, motives, &c., of the persons through whose acts or at whose instance he has been brought to trial, and especially those of the actual prosecutor or responsible accuser. And evidence of maUce on the part of the latter will justify an increased asperity of comment. But between animadversion of this character and defamatory personalities a line should be drawn, and the latter should not be permitted. Further, a proper consideration for the discipline and established military relations of the service should exclude from the statement gratuitously disrespectful language toward superiors or the court, as well as any form of insubordination and defiance of authority.'" But within these limitations the court will rarely be 451 called upon to check the accused, who, under the critical circumstances in which he is placed, should certainly be allowed the largest latitude of expression consistent with the observance of the conditions mentioned, the non- observance of which indeed could give no additional force to the address." " Millerd v. Thorn, 56 N. T., 402. » Digest, 711. Either party, or both parties, may waive the right to make a statement. Id., 458. " G. O. 4, Dept. of N. Mex., 1864. >s See Tytler, 302 ; Simmons § 587 ; Pipon & Col., 55 ; Macomb, 45, 46 ; O'Brien, 258, 262, De Hart, 160 ; Benft, 116 ; Coppfie, 82 ; Digest, 711 ; G. 0. 16 of 1851 ; Do. 31, Div. of the Atlantic, 1873. " It is well remarked by the Secretary of War In G. O. 25 of 1859 that the statement cannot be allowed to " serve as a cover for language amounting to a breach of military discipline." The use in the statement of unseemly and unmilltary language has been severely commented upon by courts in connection with their findings, (see G. O. of May 10, 1816; Lieut. Hyder's Trial, p. 156,) and still more frequently by reviewing officers. G O. 3 of 1826 ; Do. 64 of 1827 ; Do. 16 of 1851 ; Do. 2 of 1856 ; Do. 3, Army of the Potomac, 1861 ; Do. 6, Dept. of Ul., 1869 ; also Do. 36, Middle Dept., 1864 ; Do. 52, Dept. of the Cumberland, 1868, in which — as in some other cases, sec post — the court Is declared to have erred in receiving the paper, or allowing it to be read. See the comment of Gen. Otis upon the disrespectful criticism, by counsel In a concluding argument, of the rulings of the court in the case tried — as closely approaching contempt. G. C. M. O. 24, Dept. of the Columbia, 1894. "As remarked In Bombay B., 16, an indulgence in personalities not only weakens a defence, but has the effect of disposing the paxdouing power against lenity toward the accused. 300 MILITARY LAW AND PRECEDENTS. Where the statement manifestly exceeds a reasonable freedom, and offends in either of the particulars above indicated, the court may properly warn the accused that he is transcending the proprieties, and If he persists or does not witbdraw the objectionable portion, may refuse to allow him to proceed or to admit the statement into the record." In an extreme case the court may properly report the facts to the reviewing authority for the preferring of charges or other action." The use of " menacing words," in the sense 452 of Art. 86, may expose the party to be proceeded against as for a con- tempt. It may be added that mere discursiveness or irrelevancy in the statement wiU not justify the court in restricting it unless it be thus so pro- tracted as to delay unconscionably the proceedings. As to the statement or argument on the part of the prosecution, it is com- paratively rare that this becomes subject to criticism on account of gross improprieties of language. Where, however, it exceeds a proper license, the same procedure is to be observed as in a case of a similar address on the part of the accused." PBOCEDTTBE AS TO BEADING, &C., OE STATEMENT. The statement of the accused, If written, may be read by the accused himself, by his counsel, by a friend, or by the judge advocate. The latter however would with less propriety act herein for the accused, where he proposed himself to present a closing address. In some Important cases, in lieu of a written statement, counsel have addressed to the court oral arguments, or arguments part oral and part written, the oral portion being taken down by a stenographer. THE STATEMENT AS EVIDENCE. While all due consideration is to be given to a statement properly presented, the statement is not evidence but a personal declaration or defence, and cannot legally be acted upon as evidence either by the court or reviewing authority.^ Nor can It be a vehicle of evidence, or properly embrace documents or other writings, or even averments of ma- terial facts,^ which, if duly introduced, would be evidence; and if such are embraced in it, they are no more evidence than any other part. In some instances the statement has been sworn to under the Impression that it will thus answer as a form of the exercise by the accused of the privilege, " Simmons § 588 ; McNaghten, 210 ; Macomb, 46 ; O'Brien, 258 ; De Hart, 161 ; Digest, 711. In G. O. 3, Army of the Potomac, 1861, where the statement Is reflected upon as of an improper character. It is added : — " The court would have been entirely justified in excluding it." And see case in G. O. 23, Dept. of the Columbia, 1876. In a case In G. O. 157, Navy Dept., 1870, where the accused officer presented a statement "so disrespectful that the court would not receive It " and thereupon declined to otter any other, his action was censured by the Secretary of the Navy. It is for the court, of course, if the occasion Justifies it, to rule out the statement. The judge advocate has no authority to reject or suppress it, however objectionable, G. O. 31, Dlv. of the Atlantic, 1873. "In some cases officers have been brought to trial for disrespectful language, &c., contained In their addresses, and in general convicted and sometimes dismissed. G. O. 2 of 1856 ; Do. 25 of 1859 ; McNaghten, 209. And see case of summary dismissal cited from James, post. "In a case in James, (p. 461, 463,) In which the court, in connection with its judg- ment, refiects upon the address of the prosecutor, (which contained false and malicious charges against a superior officer,) the reviewing authority, concurring, proceeds to pronounce his dismissal from the service. »» G. O. 21, Middle Dept, 1865 ; Do. 28, Dept. of W. Va., 1865 ; Do. 231, Fifth MU. Dlst., 1869 ; Do. 23, Dept of the South, 1870 ; Q. C. M. O. 30, Dept. of the Bast, 1886 ; Digest, 710. " See Beait, 116. MILITABY lAW AND PRECEDENTS. 301 (accorded by the Act of March 16, 1878,) of testifying in his own behalf, 453 and so become evidence. Such an impression is erroneous ; '^ it is irregu- lar and improper to permit the statement to be sworn to, and that it is an affidavit adds nothing to its legal effect.** The statement and the testifying are disthict and independent proceedings, and the accused may, and often does, make a statement although he may previously have taken the stand as a witness.'" While the statement proper cannot be regarded as evidence, yet where, — as it is expressed in the Digest" — ^the accused "clearly and unequivocally admits therein facts material to the prosecution, such may properly be viewed by the court and revlevrlng officer as practically m the case." Such facts must of course not he inconsistent with the plea. But admissions of this sort can scarcely in any event constitute a sufficient basis for a conviction unless sup- ported by material testimony on the trial. VI. CONTEMPTS. SOTTBCE OF THE AUTHOEITY OE COXTRTS-MAETIAL TO PUNISH EOR CONTEMPT. A general power to punish for contempt — necessary as it is to protect the dignity of judicial tribunals and ensure a proper administration of public justice" — is Inherent la all superior courts of record, independently of legislation." But it " does not arise from the mere exercise of judicial func- tions," " and so is not commonly possessed by inferior courts unless the same are courts of record, or are specially empowered to exercise this authority 454 by express statute." Courts-martial, not being courts of record," nor Indeed, strictly, courts at all in the sense of being a part of the judicial department of the government, but only instrumentalities in aid of the executive arm, of temporary and limited powers, without the capacity to issue process or the means of enforcing their judgments,"" have no general inherent authority to punish for contempt, and are only authorized so to punish as they are thereto expressly empowered by the 86th Article of war.^ A-R.T 86 — ^ITS GENEUAl EFFECT'. This Article is as follows: — "A court-martial may punish, at discretion, arnif person who uses any menacing words, signs, or gestures, in itts presence, or who disturbs its proceedings, hy any riot or disorder." Its proper ori^nal may be said to be Art. 54 of the Code of James II, (Itself derived from provisions of the Arts, of 1639, 1642 and 1666,) which made punishable the use of "braving or menacing words, signs, or gestures," as also the " drawing of a sword," in the presence of the court. Its effect in our law is to authorize the punishment only of some " di- rect " contempts, or contempts committed in the presence or immediate prox- " Digest, 750. » G. C. M. O. 2, Dept. of the Mo., 1880 ; Do. 9, Id., 1886 ; Do. 42, Dept. of Texas, 1880 ; Do. 6, 13, Id., 1882. « G. C. M. O. 2, Dept. of the Mo., 1880 ; Do. 19, Id., 1881 ; Digbst, 710. »Page 710. » Bm parte Robinson, 19 Wallace, 510 ; In re Cooper, 32 Vt., 257 ; State v. Goff, Wright, 79 ; Eai parte Smith, 28 Ind., 47 ; Samuel, 630 ; O'Brien, 151-2 ; De Hart, 102. ^ 2 Hawkins, c. 1, s. 15 ; 4 Black. Com. 286 ; Samuel, 633 ; V. S. D. Hudson, 7 Cranch, 34 ; Anderson v. Dunn, 6 Wheaton, 227 ; Ea: parte Boblnson, 19 Wallace, 505 ; In re Kerri- gan, 33 N. J., 344, 347 ; In re Cooper, 32 Vt., 254. " In re Kerrigan, ante. » See In re Cooper, ante; Morrison v. McDonald, 21 Me., 556. »> See Chapter V, p. 48. " Ante, p. 48. » See 18 Oplns At. Gen., 278. 302 MILITARY LAW AND PRECEDENTS. imlty of the court when in session, as distinguished from " constructive " con- tempts, t. e. acts committed at a distance from the court, or beyond its " pre- cinct," but which operate to prevent and obstruct the due administration of Justice." Thus, such acts as a refusal or neglect by a witness to appear " when duly summoned; or a publication in a newspaper reflecting improperly upot the action of the court or its officers in a pending case, &c.,— acts which would be constructive contempts in the civil procedure,— would not be punishable by a court-martial under Art. 86." 455 Further, the Article contemplating direct contempts, its effect is to authorize the punishment of the acts which it enumerates only in such manner as direct contempts are properly punished,"' vig. sumrrmrily. CONSTRXICTION OF THE ARTICLE — " A court-martial." This general description includes inferior equally with the superior courts-martial. Some of the authorities indeed, repeating the view of Simmons," have expressed the opinion that a regimental or garrison court was not empowered to proceed for a contempt against an officer, although it could do so against an enlisted man." This opinion is founded upon the provision of the code, that such a court shall not try a commissioned officer. But here the distinction is lost sight of between a trial and a proceeding for contempt, the latter not being a trial, but a summary assertion and enforcement of executive authority. Thus an officer who by his conduct before an inferior court, as a witness or other- wise. Is guilty of a contempt, may be as legally subjected to the punishment provided by the Article as may a soldier, and as properly as he may be before a general court. The term under consideration, " a court-martial," cannot be held to include a court of inquiry." There is not indeed the same reason for investing a court of inquiry with authority to punish for contempt as exists in the case of a court-martial, the former not administering justice or being in fact a court, but only a board or commission of investigation. Moreover the Article, as conferring a summary and in a measure arbitrary power, is to be strictly con- strued, and, as it does not give this power to courts of inquiry in express terms, cannot properly be held to convey the same by Implication." 456 It may be observed in this connection that, in order to empower a court- martial to proceed as for a contempt, under Art. 86, it is not essential that it should be gicorn for the trial for which it has assembled. It cannot indeed "The two kinds of contempts at common law are sometimes also designated as crimi- nal and conetructive. The direct and constructive contempts which may be taken cog- nizance of by the U. S. courts are specified in Sec. 725, Eev. Sts. And see Ex parte Eobinson, 19 Wallace, 511. "That a failure so to appear by a military witness is not punishable as a contempt under Art. 86, but is a " neglect " cognizable under Art. 62, was noticed by MaJ. Gen. Thomas, in G. 0. 58, Dept. of the Cumberland, 1868. »A larger power is given to naval courts-martial by Art. 42 of the Articles for the Government of the Navy. " Johnston v. Com., 1 Bibb, 598 ; Crow v. State, 24 Texas, 13 ; State v. Sauvinet, 24 La. An., 121. And see Samuel, 631-633 ; Simmons § 434 ; Harcourt, 158 ; O'Brien, 311 ; De Hart, 103. " § 435. " Griffiths, 30 ; Harcourt, 157 ; De Hart, 105 ; Ben«t, 31. «A contrary view expressed by De Hart, (p. 279,) is repeated by Benfit, (p. 182.) It may be noted that the power in question is also not given to courts of inquiry by the Articles specifically relating to the same — Arts. 115-121. In the navy the power to punish for contempts is expressly given to courts of inquiry, by the naval Article 57. " " The power to punish for an alleged contem.pt is in its nature arbitrary, and its exercise Is not to be upheld except under the circumstances and In the manner pre- scribed by law," Batchelder v, Moore, 42 Cal., 414. MILITARY IiAW AND FEECEDENTS. 303 proceed to trial without the additional qualification of an oath, but, as already remarfced, the proceeding for a contempt Is not a trial. Thus, before the oath Is taken by which the organization for the trial is completed, the court is as fully empowered to pass upon and punish a contempt as it is subsequently. Such was in fact the ruling of the Judge Advocate of the Army in an early case in 1844,'" and such' was the action taken by the court in a more recent case, promulgated in General Orders," in which the proceedings were approved by the President. " May punish at discretion." These words, it Is to be remarked, are not mandatory, the court being authorized, not required to punish. Thus it is always open to the court to wai/ve the right of proceeding under the Article, and. Instead, to prefer charges against the offender, through its president, or Judge advocate, or to report the facts to the proper commander for his action." In the majority of the cases in our service this course has in fact been pursued.** Except, 457 however, where the ofCence committed is of a peculiarly grave character, demanding a severe punishment, and one not appropriate to the action under consideration, it will be the preferable course," and indeed in general the duty of the court," to proceed summarily under the Article. PUNISHMENT. As to the punishment authorized, the "discretion of the court, in the absence of any statutory provision, or defined custom of the service, on the subject, will properly be guided In the first instance by a reference to the common law, and the civil statutes and practice. From these sources it is ascertained that the appropriate and customary punishment for contempt is fine or imprisonment, or fine with imprisonment. Such was the usual punish- ment at common law," and such — i. e. fine or imprisonment — ^is the only penalty authorized by the Revised Statutes to be imposed by the courts of the United States." In the civil practice generally the punishment for direct contempts is " Private Shalon's case, referred to in note post, under "Punishment." " G. C. M. O. 36 of 1870. "Simmons, (§ 434,) referring to tliis alternative mode of proceeding, says: — "At other times charges have been preferred by the court, or by direction of the confirming or other superior authority, whose notice had been drawn to the offence either by a special report or by the circumstances appearing In the record of the proceedings." And see Samuel, 634 ; GriflSths, 30 ; Harcourt, 158 ; O'Brien, 152 ; G. O. 3 of 1853. There is a similar civil procedure. Thus the court say in Williamson's Case, 26 Pa. St., 19 : " It (contempt) Is punished sometimes by indictment, and sometimes in a summary proceeding." And to a similar effect see V. S. v. Jacob!, 1 Flippln, 108, and In re Mullee, 7 Blatchford, 24 — where it is held that a contempt offered to a D. S. court Is a crime against the United States. « See Instances in G. 0. 14 of 1855 ; Do. 1 of 1858 ; G. C. M. O. 37 of 1873 ; G. O. 63, Dept. of the Tenn., 1863 ; Do. 126, Sixteenth Army Corps, 1863 ; G. C. M. O. 9, Fourth Mil. Dist., 1867 ; G. O. 58, Dept. of the Cumberland, 1868 ; Do. 17, Dept. of the Columbia, 1871 ; Do. 79, Dept. of the South, 1874 ; Do. 39, Div. of the Atlantic, 1876 ; G. C. M. O. 7, Dept. of the Platte, 1874. And compare cases reported by Hough, 97; Id., (P.) 675. The charge should be laid under Art. 62, or, in an aggravated case of an officer, under Art 61. The trial should, obviously, be had before a new court, t. e., a court composed of ofllcers other than those who were members of the court before which the contempt was committed. See Hough, (P.) 676; Harcourt, 158. « Samuel, 638 ; Harcourt, 158 ; O'Brien, 152 ; De Hart, 106. " See In re Cooper, 32 Vt, 257, where it Is said of the power to punish for contempt : — " Its exercise is not merely personal to the court and its dignity : it is due to the authority of law and the administration of Justice." « Anciently, upon the theory that the King was present in his courts of Justice, and a contempt was a personal affront to his majesty, some contempts were punishable with death. 4 Black. Com., 124. By the Articles of War of the Earls of Northumberland and Essex, in the reign of Chas. I., contempts before military courts were made simi- larly punishable. Samuel, 630 ; 1 Clode, (M. F.,) 444. •Eev. Sts., Sec. 125. And see MO! parte Koblnson, 19 Wallace, 512. The statute is merely declaratory of the common law principle. Anderson i). Dunn, 6 Wheaton, 227. 304 MILITABY lAW AND PKECBDBNTS. commonly either a small fine which can be satisfied at the moment or presoitly, or a brief commitment Intended for the temporary restraint of the per- 458 son ; " it being evidently deemed to be of the essence of such punishment that it should be simple, light and provisional, In the same manner as the summary proceeding of which it is the result is secondary and incidental in its character. So, in military cases, the appropriate punishment under the Article would in general be either a fine, in the form of a forfeiture of pay moderate In amount and proportioned to the rank and monthly pay of the offender, or a confinement for a certain number of hours or days either in the guard-house or in quarters." The court, however, would not be precluded from substituting, or adding, some other military punishment, not Inappropriate to the 459 occasion nor excessive in quality or quantity." The extent and character of the penalty will depend mainly upon the particular circumstances which exhibit the offence as aggravated or the reverse,^ and upon the intent of the party." In imposing the punishment some regard may well be had to the relation wliich the offender bears to the trial or investigation. Thus if he be the accused, his punislmient should, if practicable, not be such as to interfere "A review of the leading cases shows that the fine adjudged (for a first offence) has generally been not less than five dollars nor more than one hundred dollars. In some cases the judgment has been that the party stand committed to jail till the fine is paid. When Imprisonment has been imposed, it has very rarely exceeded thirty days and sometimes has been limited to a few hours. In Hill v. Crandall, 52 Ills., 70, the offender, an attorney, for contemptuous and defiant language addressed to the court, was required to pay a fine of five dollars and be Imprisoned in the county jail until it was paid. In People v. Boughton, 1 Edmonds, 143-6, where the Attorney General of the State and a counsel in the case engaged in an altercation and exchanged blows, the court committed them both to the common jail for twenty-four hours. The same Imprisonment, with a fine of $100 and costs, was imposed for an assault committed by an attorney on the judge, In State v. Garland, 25 La. An., 532. In the case of In re Kerrigan, 33 N. J., 344, the punlBhment for insulting language addressed to the court by a party present, was imprisonment in the county jail for fifteen days. In Middle- brook V. State, 43 Conn., 257, the punishment adjudged, for a violent assault committed in the court-room by the plaintiff in a suit, upon the counsel for the defendant, was thirty days in the common jail, with $100 fine and costs. The imprisonment should not be for an indefinite period but for a time practically certain. King -o. James, 5 B. «1 Aid., 894; Yates v. People, 6 Johns, 339; Yates v. Lansing, 9 Johns., 419. In the larger number of cases the penalty has been fine only. "In adjudging confinement, the distinction indicated in the Army Regulations be- tween the kinds of restraint appropriate for officers and soldiers, respectively, may ordinarily well be observed. See Samuel, 634. Where, however, an officer Is already in close arrest, i. e. confined to his quarters, the court is not precluded from impos- ing, for a contempt, a stricter restraint Thus. In a case of this kind in Q. C. M. 0. 36 of 1870, the punishment adjudged was — " To be confined in charge of the officer of the guard in the post guard-house, during the pending trial, or during the pleasure of the court, and denied all communication with any one except his counsel " "In a case of a soldier published in G. C. M. O. 1, Dept. of Texas, 1875, there was added to a confinement the penalty of walking for a certain period with a loaded knaiv sack, weighing 25 pounds. To the penalties of fine and imprisonment, Samuel, (p. 634,) subjoins— for cases of officers— reprimand." If the court resort to this punishment, it may adjudge the reprimand to be administered at once by the president of the court, or by the review- ing authority in passing upon the whole case. WThe offence will be aggravated where it is repeated, (see, fop example. The King ». Davidson, 4 B. & Aid., 333, where the prisoner, who conducted his own defence, was, for repeated improper language used in his argument, fined successively £20, £40, and again £40;) or where it is a second offence though of a different nature, (see State «. Garland, 25 I^ An. 532;) or where It is committed after a warning or admonitloii from the court, (as in both these cases;) or where it is Justified by the party on the hearing, (as in State v. Garland.) See post-" Purging the Contempt" " See Sturoc's case 48 N. H., 432. As to the effect of disavowals of improper intent, and of expressions of regret, in excusing or purging the contempt, see pMt. MILITABY liAW AND PKECBDENTS. 305 either with the regular course of the trial or with the presentation of his de- fence to the same." It is quite clear that the imposition of dismissal, suspension, dishonorable discharge, prolonged forfeiture, or protracted or very severe imprisonment — penalties which have been resorted to In some cases"— would be quite 460 foreign to the purpose and province of a proceeding for contempt, and should properly be regarded as beyond the scope of the authority of a court-martial imder the 86th Article. Punishments of this Isind might indeed be appropriate where the party, instead of being proceeded against as for a contempt, was brought to trial upon a charge laid under Art. 61 or 62, for some grave military offence Involved in his conduct. Execution of the punishment. The punishment, if a fine or forfeiture to pay, may be executed through the orders of the reviewing officer, in passing upon the proceedings, In the same manner as a sentence." If the punishment consists in imprisonment or other bodily restraint, it may be executed through the order of the convening authority, upon a reference and report of the facts to him by the court, or, if the offender is a member of the command of the post commander, the court, which is incapable of executing its own mandate," may apply to such commander, who, if he has the means for the purpose, will execute the judgment with the same propriety and legality as he executes the arrest of the accused imder the charges, furnishes the court with a guard, or performs any other ministerial function in aid of its proceedings." " Any person."" This designation includes certainly any miUtary person 461 who may be before the court, whether in an official capacity or otherwise. It thus embraces the judge advocate" or the accused, a military wit- "« See The King v. Davison, 4 B. & Aid., 340, "The following were Instances of summary punishment for contempt, excessive in kind or degree : Case of Lt. Col. Backenstos, adjudged " to be cashiered," published In G. O. 14 of 1850 ; A case, cited by Hough, (C. M., 455,) of a surgeon, punished by " sus- pension from rank, pay and allowances for six months ; " A case of a soldier mentioned by Simmons, (§ 435, note,) and also Hough, (P., 676,) condemned to "transportation for life;" Case of Private Shalon, 7th U. S. Infy., (1844,) adjudged "to be conftned for six months in a dark prison — every other month on bread and water, and chained to the floor — and to forfeit all pay for the same period ; " A case published in G. C. M. O. 37, Fourth MU. Dist., 1868, of a civilian witness at a trial before a. military commission, adjudged " to be confined at hard labor for one year, and to pay a fine of five hundred dollars, and to be further confined until such fine be paid." In the first and third of these cases the punishment was formally disapproved by the reviewing authority. In Shalon's case It was materially mitigated. In the last case, the party having been In confinement for two months, the punishment was remitted by the District Commander, who remarked that confinement at hard labor, for contempt of court, was " unusual and improper." It is believed, however, that such a penalty would not necessarily be im- proper if restricted to a brief term. In a case in G. O. 79, Dept. of the South, 1874, where a soldier, for a contempt not aggravated, was adjudged tp be confined at hard labor for six months, (with a forfeiture of $5 per month,) the punishment was declared by Gen. McDowell to be " excessive " and was mitigated to " confinement at hard labor for one month." ^That an accused may have been acquitted of a charge for which he was on tritil cannot atCect the authority to execute a punishment adjudged him, pending the trial, for a contempt committed. See Hough, (Practice,) 260, note 41. » It would appear that English courts-martial have sometimes placed officers In arrest for contempt. See Samuel, 635 ; Hough, 455. Whether or not such an authority would now be conceded to them, it is clear tliat none such can be exercised by courts-martial in this country. See Chapter IX. "Where courts-martial are attended by provost-marshals, these officials might be sufficient for the execution of some minor punishments under Art. 86. " The case of the judge advocate, however, is bo assimilated to that of a member, (see text post,) that although the courts would be fully empowered to punish him summarily for a contempt, it would probably, in a case of any aggravation, prefer to adjourn, and, reporting the facts to the convening authority, (with formal charges, if thought proper,) apply at the same time for the detail of a new judge advocate. 306 MILITABY LAW AST> PEECBDENTS. ness, prosecutor, counsel, clerk, or guard, or any officer or soldier who may be present as a spectator. The rank of the person is immaterial." Though the party chargeable with the contempt may be senior in rank to all the members of the court, he is yet equaUy subject to be proceeded against under the Article as if he were the youngest officer in date in the service. To this effect was the ruling in the leading case of Major John Browne of the British army, in 1786, as reported by Samuel and other subsequent writers." Inclusion of civilians. Whether the term "any person" includes also civilians, is a question upon which the authorities have difEered.°° In the opinion of the author, a court-martial, while empowered of course to cause a disorderly civilian to be ejected from the court-room, is also empowered, under the comprehensive terms of Art. 86, to punish, for a direct contempt, by fine or imprisonment, any such civil person, whether witness, clerk, reporter, counsel, or a mere spectator at the trial, with the same legality as it may an officer or soldier of the army." The enforcing of the Article in the instance of a 462 civil person is not an exercise of military jurisdiction over him. He is not subjected to trial and punishment for a military offence, but to the legal penalties of a defiance of the authority of the United States offered to its legally-constituted representative. Any less power in the court than one of summary punishment would be imperfect and insufficient under the circum- stances. "The mere power," says Aldis J., in a case in Vermont,"" to remove disorderly persons from the court-room would be wholly inadequate to secure either the proper transaction and dispatch of business or the respect and obedi- ence due to the court and necessary for the administration of justice." In view, however, of the embarrassments likely to attend the execution through military machinery of a punishment adjudged a civilian for a contempt under the Article, it would in general be advised that a court-martial, in a case of such contempt, should confine itself to causing the party to be removed as a dis- orderly person, and, in an aggravated instance, where practicable, procuring a complaint to be lodged against him for a breach of the public peace. Where, however, the civilian is a person employed by the military authorities in con- nection with the army as a post-trader, quartermaster's employee, &c., the pref- erable course will generally be to punish him by a confinement in the post guard-house, for a brief period or till he shall purge his contempt. Members of the court not included. Though it is not a necessary impli- cation from the terms of the Article, it is yet a natural inference from its context, that it could not have been intended in the designation " any person," comprehensive though it be, to include a member of the court itself. And so it has been held in this country ; a direct ruling on the point by the Secretary of War having been made in 1850, in the case of Lt. Ool. Backenstos. This officer, as senior member and president of a general court-martial, was summarily pro- « See O'Brien, 152-3 ; also McNaghten, 165-168, where is aptly cited the ease of the commitment, for an aggravated contempt, of the Prince of Wales, afterwards Henry V, by Sir Wm. Gascoigne as Chief Justice of the King's Bench. *2 See especially Samuel, 636. »= Samuel, (p. 638-9; and see Harcourt, 158; Clode, 138,) held the negative; Mc- Naghten, (p. 168-9,) and Hough, (p. 440,) the affirmative. De Hart, (p. 106-8,) while treating the question as one involved in doubt, seems to be of opinion that a court-martial may not punish a civilian for a contempt under the Article. Ben6t. (p. 32,) expresses a contrary view. "The Attorney General, (18 Opins., 280,) similarly construes the term "all persons," m Art. 6, Sec. XIV, of the Articles of 1776, which relates also to contempts. " The terms of this Article," he says, "are broad enough to include civiUan witnesses, and it was doubtless meant to apply to them." « In re Cooper, 32 Tt., 258. MILITARY LAW AND PRECEDENTS. 307 ceeded against by the court as for a contempt, (consisting in certain arbitrary and disorderly conduct,) and was sentenced "tc be expelled from the court and to be cashiered," Upon this action the following decision was announced in General Orders : "— " The proceedings of this court having been sub- 463 mitted to the President of the United States are not approved, as the 76th " (the present 86th) "Article of war does not confer on a court- martial the power to punish its own members." In a case of this character, therefore, the proper course, in view of this rule, would in general be for the court to adjourn and at once report the facts to the convening authority, (with a formal charge preferred, if deemed desirable,) with a view to having the offending member brought to trial for conduct prejudicial to good order and military discipline." " Who uses any menacing words, signs, or gestures, in its presence." This phraseology is unsatisfactory; the employment of the single descriptive term "menacing" having the effect of excluding from the cognizance of the court, under the Article, the use, In its presence, of improper words, &c., which yet do not express or involve a threat or defiance."" Thus language, however disrespectful, if it be not of a minacious character, cannot, unless actually amounting to or creating a disorder, in the sense of the further provision of the Article,™ be made the occasion of summary proceedings and punishment as for a contempt — a defect certainly in the statute. Menacing or threatening words or acts aimed at the court or its individual memiers are no doubt especially contemplated by the Article;™ and words of this nature may either be spoken, or presented in a writing, as, for 464 instance, in the closing address or argument." Menaces, however, if directed at the accused or a witness, or at the judge advocate, or any other person in a quasi official position before the court or under its legal pro- tection, would also, it is conceived, properly fall within the designation of the Article, such conduct being equally a contempt of the court itself." As to the case of a witness, while the ordinary bullying practised sometimes toward persons on the stand would scarcely come under the description of " menacing words, gestures," &c., an attempt to Intiroidate a witness, by alarming him with the prospect of some specific danger in case he should make or not make a certain disclosure or statement, might readily be deemed to fall within the category. The term " in its presence " is taken to mean before the court in the court- room, or in, its sight or hearing, and also while it Is in session. Menacing " G. O. 14 of 1850. °' See Army Regulations, par. 1006, based on the case of Backenstos. ■* ''As to menacing words, they imply a threat." Hough, (C. M.,) 442. The manner, tone, emphasis, &c., of the speaker, with the surrounding circumstances, are to be taken into consideration in determining whether his language imports a menace. See Bm parte Robinson, 19 Wallace, 511 ; In re Cooper, 32 Vt., 256 ; Hough, 455. "Such were the character and circumstances of the language employed in the case of contempt published in G. 0. 17, Dept. of the Columbia, 1871, where the accused, when asked by the judge advocate if he had any statement to make to the court, re- plied — " I'll be God damned if I have any statement to make," and left the court- room abruptly and without proper authority. And see cases in G. C. M. O. 1, Dept. of Texas, 1875 ; G. O. 79, Dept. of the South, 1874 ; G. O. 126, Sixteenth Army Corps, 1863 — where disrespectful and insolent language was, apparently as constituting a disorder, treated as a contempt. ™ See- the instance given in James, 504, and Hough, 454, of an oflBcer, who, as prosecutor, repeatedly menaced the court " wixh the vengeance of a. superior tribunal, accompanying his expressions by the most defying attitudes." " See case cited in Hough, 456 ; also The King v. Davison, cited in note ante. « See i Black, Com., 126 ; Hough, 443. 308 MILITABY IiAW AND PRECEDENTS. language, &c., however, used toward the court or a member, during a recess,— the day's session of the court not having been adjourned, — ^mlght perhaps be regarded as within the terms of the Article." "Or who disturbs its proceedings by any riot or disorder." The word " riot " is regarded as here employed not In its strictly legal sense, but rather in the sense in which it is commonly used, as meaning — ^to cite the definition of Webster — ^"wanton or unrestrained behaviour; uproar; tumult" The term " disorder " is stUl more general, and, in a broad sense, (analogous to that in which it is employed in Art 62,) would mean, literally, any conduct in breach of the orS,€fr of the proceedings. But, in the connection in which it here occurs, it is construed as implying more than a mere irregularity, and as importing dis- order so rude and pronounced as to amount to a positive intrusion upon and interruption of the proceedings of the court. The more familiar examples of such a disorder and disturbance as are held to be contemplated by the 465 Article are — assaults committed upon members," or upon persons con- nected with the court or properly before it ;" altercations between coun- sel" or spectators;" drunken" or indecent" conduct; loud and continued conversation;" any noise or confusion which prevents the court from 466 hearing the testimony, Ac.;** any shouting, cheering, or other expres- sion of applause or disapprobation, especially if repeated after being " Compare State v. Garland, 25 La. An., 532, where an assault committed upon the Judge, during a recess oi the court, but while It remained unadjourned, was held a direct contempt, and punished as stated in note ante. "See eases reported In Hough, 97; Id., (P.,) 675; also in note ante, under "Punish- ment." " " Likewise all such as are guilty of any Injurious treatment to those who are im- mediately under the protection of a court of Justice, are punishable by fine and impris- onment." 4 Black. Com., 126. And see Hough, 442. The leading instance in our service is that published in G. O. 63, Dept. of the Tenn., 1863, where a witness assaulted and killed, by shooting with a pistol, in the court-room, the accused, for attempting to impeach his testimony. He was not proceeded against under Art. 86, but tried for murder. " See case of People ■». Boughton, cited in note under " Punishment," ante. But hasty expressions of counsel, under excitement, will ordinarily be overlooked where no contempt Is intended. St. Croix v. Piatt, Wright, 532. " See TJ. S. v. Emerson, 4 Cranch C, 188 ; State v. Woodfln, 6 Ire., 200. The latter case was one of a breach of the peace in facie curioB, consisting in a fight between two Individuals just outside of the court-room. "In G. C. M. O. 59, Dept. of the Platte, 1872, a case is referred to of a soldier ordered by the court to be confined for contempt in using profane language, in his testimony as a witness, while apparently intoxicated. In general, however, contempts by way of drunken conduct, on the part not only of members, but also of parties or witnesses, have been made the occasion of formal charges, under Art 62, (formerly Art. 99,) and regular trials before new courts. See cases of this kind in G. O. 14 of 1855 ; Do. 1 of 1858 ; G. C. M. O. 52, Dept. of Va., 1865 ; Do. 9, Fourth MU. Dist., 1867; Do. 7, Dept. of the Platte, 1874; G. O. 39, Dlv. of the Atlantic, 1876. In G. C. M. O. 39, Hdqrs. of Army, 1877, is a case of an officer charged and convicted under both Art. 61 and Art 62, for appearing in uniform drunk before the court by which he was being tried. In the case in G. O. 1 of 1858, the offender, a member, became disorderly upon teing challenged. "In G. C. M. O. 1, Dept. of Texas, 1875, it was properly held not to constitute a contempt under Art. 86 for a soldier to come before the court by which he was to be tried with his clothing in disorder. «>In the case of Acton tried for murder, 17 Howell's State Trials, 463, (1729,) the Judge said— "Crier, make proclamation to keep silence under pain of imprisonment This IS a trial for life and death, and I shall commit any one that don't hold their peace. T.,'' !o^, "Whittem V. State, 36 Ind., 212 ; State v. GofC, Wright, 78 ; State v. Coulter, Id., 4.il; Hough, 444. "It is sufficient that the noise or hindrance be such, however small, so that the court cannot distinctly hear what is addressed to it, by its members, &c., or those before the court as witnesses." Id., 452 MILITARY LAW AND PRECEDKNTS. 309 checked;" contumelious or otherwise disrespectful language, addressed to the court or a member or the judge advocate, of so intemperate a character as to de- range the proceedings, especially if persisted in after a warning from the court." ACTS NOT DISORDERS— CONTUMACY OP WITNESS. But acts not of a violent or disturbing character, though they might constitute contempts at common law and before the civil courts, would not be disorders in the sense of the present Article. Thus a quiet refusal by a witness to be sworn, or to answer a proper question on his examination, or a standing mute or simple refusal to testify at all, would not be punishable as a disorder and contempt before a court-martial. In a case indeed of a military witness, whose duty it clearly was to furnish evidence of material facts of which he was cognizant, a refusal to testify would properly subject him to a charge and trial under Art. 62. But a dviUan witness declining thus to testify would, imder our 467 existing law, do so with entire impunity." The British code, (Army Act, sec. 126,) adequately provides for such a case by authorizing the Presi- dent of the court-martial to certify the offence of such a person to a court of law, which may then proceed duly to punish the witness for his contempt as In civil cases. It is a serious defect in our system, which may, in an Im- portant case, entail a serious failure of justice, that our courts-martial (and civil courts) are wholly without power to take action in such an instance. UNINTENTIONAL CONTEMPT — PRESENCE OP THE COtTBT. It ia not essential that a disturbance of the court or interruption of its business should have been purposed by the party; that he disclaims any such purpose "'In the report of the case of Colledge, in 8 How. S. T., 714, (1681,) after the statement of the verdict of guilty, the following occurs : — "At which there was a great shout given, at which the Court being otCended, one person who was observed by the Crier to be particnlarly concerned in the shout, was committed to gaol for that night, but the next morning, having received a public reproof, was dlscliarged." In the report of the t*ial of the Dean of St Asaph, 21 How. S. T., 865, (1783,) during the recital of some remarks of Erskine as counsel for the defence,, this note is made : — " Here some of the audience clapped, and the Court fined a gentleman £20." In Stone's case, 6 Term, 530, (also reported in 25 How. S. T., 1438,) It is narrated that : — " On this, (the rendering of the verdict of not guilty,) there was considerable shout In the hall ; and a man of the name of Thompson, jumping up in the middle of the court, waving his hat and halloing, was taken into custody and find £20." But see the note to the case of the Earl of ShafteSbury, 8 Term, 821, (1681,) where, when the grand Jury " returned the bill ' Ignoramus,' the people fell a hollowing and shouting," but no one was punished for contempt. '= See case in G. C. M. O. 1, Dept. of Texas, 1875 ; also Hill v. Crandall, cited in note ante, under "Pnniahm,ent." "A ruling to this effect by the Judge Advocate General, (Digest, 99,) was followed by a slmUar opinion of the Attorney General, (IS Opins., 278,) in case of a civilian witness who, on being duly summoned and appearing before a court-martial, stood mute. The Atty. Gen., in. holding that such a witness could not be compelled to testify or punished for not testifying, notices that the power to punish in such a case was once conferred upon courts-martial of the army by Art. 6 of Sec. XIV of the Code of 1776, as also upon miUtia courts by the Act of April 18, 1814, c. 82, s. 4. Keferrlng to Art. 86, he says — "By this article Congress has given a court-martial power to punish for contempts; but the power is In terms restricted to cases of acts of menace in its presence or of disorder by which its proceedings are disturbed. In thus limit- ing the grant of power to certain cases designated in the statute, by a familiar rule of interpretation it is to be Implied that all others were meant to be excluded therefrom." The view thus expressed was approved by the Secretary of War in a communication to the Comdg. Gen., Dept. of Texas, Oct. 27, 1885, stating it as his decision that " courts- martial are powerless to punish civilians for failure to testify." But though a civilian witness cannot be compelled to testify against his will, his attendance will entitle him to his witness fees, (Circ. No. 1, H. A., 1886,)— a peculiar anomaly in our military law. 310 MILITARY lAW AND PRECEDENTS. will not afEect the offence.*^ " The question whether a contempt has or has not been committed does not depend on the intention of the party but upon the act he has done. It is a conclusion of law from the act." " Where, how- ever, the court is satisfied that the contempt was quite unintentional, it will certainly impose a less penalty," or it may, in its discretion, refrain from proceeding to punish at all.'' The words " in its presence " not being connected in the context with the clause of the Article under consideration, the same may be held to include dis- orders which, though disturbing the proceedings, are not committed in the court- room itself. Under Sec. 725, Eev. Sts., which authorizes the infliction 468 by U. S. courts of summary punishment for contempts when committed " In the presence of the court or so near thereto as to obstruct the ad- ministration of justice," it has been held that disorderly conduct at or near the entrance of the court-room, or outside but in the sight or hearing of the court, and so loud or conspicuous as to interrupt and embarrass the proceedings, was a contempt ; * and a similar rule might properly be applied to like disturbanceis of militai"y trials." FORM OF PBOCEDTJRE TJNDEE, THE ARTICLE. As to the manner and form of the exercise by the court of tJie summary power conferred by the Article, it is first to be remarked that a timely warning, call to order, or command to silence, by the president as the organ of the court, at the first symptom of any disorderly manifestation, may often have the effect of preventing the occur- rence of an act of the class which the Article is designed to correct." As to the procedure when the court finds itself called upon to avail itself of the discretion to punish, i. e. to award punishment — it is clear, as has already been indicated, that no form of trial or investigation is required. The act hav- ing transpired in the presence, (or in the sight or hearing,) of the court, no evi- dence is in general necessary to inform It of the circumstances, nor is any introduced in practice."" Opportunity is properly given the ofCender to pre- sent anything he may have to offer in excuse or explanation of his lan- 469 guage or behaviour," but beyond this no formality whatever is called for. The proceeding not being a trial, it is wholly unnecessary to swear the court for the purpose, and it is also quite unnecessary, (though this has some- «= Watson „. Savings Bk., 5 So. Ca., 159. And see State v. Garland, 25 La. An., 533. ™Wartman i', Wartman, Taney, 370. "' See Sturoc's Case, 48 N. H., 432. <" See post, under " Purging the contemot." «> U. Si;. Emerson. 4 Cranch C, 188 ; U. S. v. Carter, 3 Id., 423. And see to a TsTstatf :!''c"ltt! l^X^r'^' '''*' " ''°''"°' ' ^"■' ^''■' ^^^'^ "• «"'^' ^'■'^"'■ temnt^„T."„?,i? <^'f %*»■«'•/'' "^^'^ ^e court as to disturb their proceeding is a con- a dSurLn^P ^ IT \ 1/'°*"'' '"•'""' "" stationed, if required, to prevent such ajisturbance. Hough, 444. And see 4 Black. Com., 125; Whittem v. State. 36 Ind., '^Tht .""^^vi ^^V.f'*""'" '^^'^' "'^"^ *° "°*'^ ««*«^- State V. Goff, Wright, 78. h»,nJ P°"f"'«'t "may be adjudged without the previous form of trial- the offence SriTpTor .^tam"ei.%34" "^ ™""' ^"'^ '^^^'^ «' ^^ '-- clearirorttis! -The court proceeds to punish after such hearing as may he deemed " just and neees- Blssell 497 Waftm^n w <.' ' \^°- *^ *'^'""' ^O"- ^"^ ^«« Panshawe v. Tracy, 4 152 De Hart irVRpn.t?if' ^^"'^' "° ' ^^'""^'' ^^"^^ ' Sl'n'^ons §434 ; O'Bilen, 1888 whfre the co'nft 1; i' .. ° ^ "^'' P^mshei in G. C. M. O. 37, Fourth Mil. Dist., defenoHn the chaZ If . f application of the party to have a statement of his obsLves ---■ hSih n t T^l**"* ™ '^"""^ '""^ ^^"•'^'"g authority, (Gen. Gillem.) to thrnuestiof but shonM T^ f^™ "T ''"'"'"^ *° "'^"^ ""'' statement, it pertinent by counsef to show cause if r ?.° ^'l"^^^ " '"" opportunity to be heard himself, or oy counsel, to show cause, if he could, why he should not he punished for contempt " MILITABY lAW AND PRECEDENTS. 311 times been done,) to have a charge and specification preferred or prepared." As there is no formal accusation, so there is no arraignment, plea, prosecution, or defence. As a^jtly observed by the court in a case already cited,""—" Where the contempt is committed in the presence of the court, and the court acts upon view, * * * and inflicts the punishment, there will be no charge, no plea, no issue, no trial." All therefore that is required is, that the court should temporarily discon- tinue the investigation or other business upon which it is engaged, and pro- ceed at once, or as soon as may be convenient, to pass upon the matter of the contempt, as an interlocutory question. The question is in general initiated by the motion of a member or the judge advocate, and the court sometimes clears to consider whether it will take action. The proceeding will consist mainly in the court announcing to the party, through its president, that he is held to have committed a contempt within the description of the Article, and that it is proposed to punish him for the same unless explained away, and calling upon him to make any explanation or statement he may have to offer. This action will preferably be taken in open court, as in civil cases. Proper opportunity for a hearing being afforded, and the party's statement, if any, being made, deliberation is then had, and a punishment — a contempt being found — is adjudged. If required to be immediately or presently enforced, the punishment as declared is without delay reported to the convening authority, or to the commander of the post or station if competent to execute it. A full record of the proceeding is at once made by the judge advocate," not 470 separate from but in, and as a part of the regular record of the trial, showing the occasion and circumstances of the contempt, the words or acts which constituted it, the excuse or statement, if any, of the party, the action taken by the court, its judgment, the disposition of the offender, &c. PtTRGING THE CONTEMPT— BBMISSIOKT OF THE PUNISHMENT. At the hearing, or before the court-martial has proceeded to judgment upon the contempt, it may, in its discretion, receive an apology for his conduct from the offender, and, if the same is deemed sufficient and satisfactory, may consider him to have " purged " himself of the contempt, and so discontinue the special proceeding." But, as is observed by the court in a late case,"* " an expression of regret for the contempt committed is always held to be essential to purge the contempt ; " a mere " disavowal of an imi)roper motive " not being sufficient. Much less, where the disavowal is accompanied by a justification by tlie party "The view, as expressed by O'Brien, (p. 152,) that "the court must be sworn and a distinct charge made out," and repeated by Ben^t, (p. 31,) is clearly founded upon a misapprehension of the legal character of the proceeding. "^Whittem v. State, 36 Ind., 211. " That an immediate record should be made, see 2 Hawkins, c. 22, b. 1 ; State -i). Matthews, 3T N. H., 453. "See Simmons § 434. In Capt. Burke's case, (Samuel, 635,) the officer "apologize for his conduct," and, " after a slight admonition and reprimand, was discharged of the contempt." In State v. Coulter, Wright, 427, the court, in accepting the apology of the defendants, (officers of a militia company, marched and exercised with loud martial music in the immediate neighborhood of the court-house,) aa purging the contempt, say : — " They disclaim on oath any intention of interrupting the business of the court, or design to contemn Its authority. They assert the most perfect respect for the court and their want of knowledge that it was holding its session as they approached and passed the court-house. Singular as this state of fact appears, the character of these gentlemen forbids all suspicion that they have not uttered the truth." And see G. O. 79, Dq)t. of the South, 1874. M Watson V, Savings Bk., 5 So. Ca., 159. 312 MILITABY LA.W AND PRECEDENTS. of his conduct; for this, as held in another case," Is an aggravation of the contempt. Where, however, the offence Is one of a grave character, an expression of regret, or disclaimer of ill intent, on the part of the offender, though, when offered in good faith, it may, as has been seen, go to reduce the punishment, wUl not in gen^^al be accepted as purging the contempt, or properly relieving the party from the penalty which public policy requires should be enforced.^"" 471 But after a court-martial has passed finally upon a matter of contempt, and imposed a specific punishment therefor, it is not, in the opinion of the author, empowered to remit, in whole or in part, the penalty awarded."* The contempt, like any other military offence, is a crime against the United States ; "" a fine imposed by way of punishment accrues to the United States ; "' and, as to an Imprisonment or other punishment, the same, when once duly adjudged according to Art. 86, is, as to the matter of its execution, equally with a sentence imposed by the authority of any other article, beyond the control of the court. The power of remission, therefore, can be exerciaed only by the military commander authorized thereto by Art. 112,"* or by the President.'" »» State V. Garland, 25 La. An., 532. i"" In Sturoc'B case, 48 N. H., 428, Perley C. J., says : — " The defendant," (the pub- lisher of a newspaper which had commented improperly upon the case,) " cannot dis- charge himself by alleging that he meant no harm and did not suppose he was doing anything Illegal." In People v. Boughton, (where the contempt consisted In a personal altercation and exchange of hlows between the counsel in open court,) the Judge, not- withstanding the regrets expressed by both the offending parties, declined to al>ate the punishment — twenty-four hours in Jail — and adjourned the court in order that It might be fully executed. ™ In a case, already cited, published in Gt. C. M. 0. 36 of 1870, the court, after imposing the punishment of confinement, accepted an apology from the offender and remitted tlie punishment. Here indeed the confinement adjudged was "during the pleasure of the court," But this form of punishment, besides being objectionable as indefinite, is regarded as unauthorized, since the term of a confinement adjudged for a military offence cannot be made to depend upon the will of the court. '■^ U. S. V. Jacobi, Flippin, 108 ; In re Mullee, cited in note post. "•Fanshawe v. Tracy, 4 Bissell, 498. And see Matter of Rhodes, 65 No. Ca., 518; Morris v. Whitehead, Id., 637 ; also Opins. of At. Gen. cited in second succeeding note. ">* Art. 112 authorizes, in general terms, officers ordering courts-martial to " pardon or mitigate any punishment adjudged" by them, (certain special penalties only being excepted, which are reserved for the action of the President.) '"It is held in In re Mullee, 7 Blatchford, 24, that a. contempt of a TJ. S. court, being an offence against the United States, the court cannot relieve or discharge the offender from the punishment imposed, but the President, as the pardoning power, can alone do so. And see 3 Opins. At. Gen., 622 ; 4 Id., 458, where it is held that the pardoning power of the President extends to the remission of fines imposed for contempts by U. S. Courts. And see State •». Sauvinet, 24 La. An., 119, as to the similar authority of a State executive to pardon in cases of contempts of the State courts. The court, however, (or rather the members,) may recommend the remission of the punishment by the proper authority ; as was done In a case in 6. C. M. O. 52, Dept. of Va., 1865, where a witness, who had been punished with confinement for drunkenness In court, appeared the next day and apologized. CHAPTER XVIII. EYISENCE. 472 CotTETS-MABTiAi, wMch ate bound in general to observe the funda- mental rules of law and principles of justice observed and expounded by the civil judicature,' are also in general to be governed, upon trials, by the rules of evidence of the common law as recognized and followed by the criminal courts of the country." Thus, indeed, it is laid down and repeated by the 473 authorities on the subject ; and inasmuch as the rules of evidence are in the main the result of the best wisdom and experience of the past, ap- proved and ratified by modem Intelligence, It is clear that military tribunals cannot in general safely assume to reject or ignore them. But the essence of all military proceedings is summary and vigorous action, and moreover, courts- martial are no part of the Judiciary of the United States, are not even courts in the full sense of the term, but are, in peace as well as in war, simply bodies of military men ordered to investigate accusations, arrive at facts, and — ^where just — recommend a punishment. In the absence, therefore, of statutory direc- tion, they can scarcely be held bound to the same strict adherence to common- law rules as are the true courts of the United States ; ' and, upon trials, they may properly be allowed to pursue a more liberal course in regard to the admis- sion of testimony and the examination of witnesses than do, habitually, the civil * Tytler, 352 ; Kenned:^, xiii ; Prendergaat, 208 ; Maltby, 1 ; Macomb, 80. ^ " Courts-martial, bavln^ cognizance only of criminal offences, are bound, in gen- eral, by the rules of evidence administered In criminal cases In the courts of common law ; the only exceptions being those which are of necessity created by the nature of the service, and by the constitution of the court, and Its course of proceeding." 3 Oreenl. Bv. § 469, 476. "As no rules of evidence are specially prescribed by Congress for the observance of courts-martial, it must be deemed that such courts are contemplated to be governed, In general, by the same rules of evidence which govern the ordinary courts of criminal jurisdiction. These rules are supplied by the common law, excepting of course where otherwise provided by statute, in which case the latter prevail." Opinion of At. Gen. Brewster, in Whlttaker's Case, March 17, 1882. 17 Oplns., 311. " The rules of evidence, as established by a long line of decisions, are the only safe guides for the ascertainment of truth, and cannot safely be purposely disregarded by military courts." G. C. M. O. 6, Mv. Atlantic, 1891. And to a similar efEect, see Grant v. Gould, 2 H. Black., 69, 87 ; Lebanon v. Heath, 47 N. H., 359 ; People v. Van Allen, 55 N. T., 39 ; 2 Opins. At. Gen., 344; 1 McArthur, 47; Warren, 8, 15; Harcourt, 76; Simmons § 811, 1006 ; Pipon & Col., 138 ; HlcknMtn, 35 ; Kennedy, xiit-xvii, 120 ; Griffiths, 65 ; Prender- gast, 206 ; Maltby, 2 ; O'Brien, 109 ; De Hart, 334, 405 ; Ben6t, 224 ; G. O. 51, Middle Dept., 1865 ; Do. 36, Fifth MU. Dist., 1868 ; G. C. M. O. 60, Dept of Texas, 1879 ; Do. 3, 52, Dept. of the East, 1880 ; Digbst, 393. That the rules of evidence are substantially the same in the criminal as in the civil procedure, see 1 Greenl. Bv. § 65 ; Wills, 73 ; U. S. v. WlBijhester, 2 McLean, 135 ; Brown V. Schock, 77 Pa. St., 471 ; G. O. 4, of 1843. »As the Court of Claims, for example, which, being a court of the United States, is held to be bound, in the absence of statutory provision on the subject, by the common- law rules of evidence. Moore v. U. S., 91 U. S., 270. 313 314 MILITAKY TjAW AND PEECEDENTS. tribunals.* Their purpose is to do justice ; and if the effect of a technical rule Is found to be to exclude material facts or otherwise obstruct a full investiga- tion, the rule may and should be departed from. Proper occasions, however, for such departures will be exceptional and unfrequent. The subject of this Chapter will be presented under the separate heads of :— I. Proof in general; II. Admissibility of Evidence; III. Oral Testimony; IV. Written Testimony. I. PBOOF IN GENERAL. Under this head will be noticed :— I. What is to be proved ; II. How much is to be proved; III. What is to be presumed; IV. What is to be judicially taken notice of. I. What is to be Proved. 474 THE THBEE PACTS TO BE ESTABLISHED. Upon every criminal trial — military as well as civil — the burden is on the prosecution to es- tablish guilt, not on the accused to establish his innocence. In the establish- ing of guilt, there are to be demonstrated three principal facts, viz. — ^That the act charged as an offence was really committed ; That the accused committed it ; That he committed it with the requisite criminal intent. Proof of the Commission. The corpus delicti' so called, or the fact that the alleged criminal act was committed — ^by some one," is, as a separate fact to be proved, especially illustrated in cases of homicide and larceny, and — at military law — in cases of offences under Arts. 5, 8, 13, 14, 17, 22, 26, 45, 46, 58 and 60. Here the fact that a person has been unlawfully killed, that prop- erty has been unlawfully appropriated, that a false return or muster has been made, that arms, clothing, &c., have been sold or through neglect lost, &e., that a mutiny has occurred, that a challenge has been sent, that the enemy has been relieved, that a fraudulent claim has been advanced, &c., is a distinct fact to be established independently of the fact of the agency of the accused. Proof of the agency and identity of the accused. This, as an independent fact, is especially material to be clearly shown where the offence was com- mitted secretly or in the night time, or where the accused was a stranger to the witnesses, or was one of a number of persons associated together, or, (by reason of their similar dress or otherwise,) not readily distinguished from each other.' In the cases of some of the military offences, as desertion, 475 cowardice, drunkenness on duty, sleeping on post, &c., the agency of the accused is so connected with the act done that proof of the latter is also proof of the former. * Grant v. Gould, 2 H. Black., 104 ; Kennedy, 120 ; Tullock, 13 ; Bombay K., 19 ; Pratt, 198 ; Lieut. Col. Fremont's Trial, 239-40, 256. " Courts-martial had much better err on the side of liberality towards a prisoner than, by endeavoring to solve nice and technical refinements of the laws of evidence, assume the risk of injuriously denying him ai proper latitude for defence." G. C. M. O. 32 of 1872. And, to a similar effect, see G. 0. 104, Dept of Dakota, 1871 ; Do. 23, Dept of Texas, 1873 ; Do. 49, 60, Dept. of Cal., 1873 ; G. C. M. 0. 60, Dept. of the Mo., 1874. = Proof of this first essential is not done away with hy the fact that the accused has confessed the offence. In other words proof of a confession does not prove the corpus delicti, but the latter must be independently proved before evidence of the confession can be admitted. 1 Greenl. Bv. § 217; G. O. 234, Fifth Mil. Dist., 1869; Do. 5, 48, Dept. of the Platte, 1871. "U. S. V. Searcy, 26 Fed., 435. The term corpus delicti is sometimes referred to as including not only the criminal act but also the agency of the accused therein. See Wharton, Cr. Ev. § 325, 633. The definition of the text, (and see 3 Greenl. Bv. § 30,) is, however, preferred. ' See case in G. O. 1, Dept. of the Platte, 1871, in which the proceedings were dis- approved because the proof did not sufficiently connect the accused with the offence. MILITARY LAW AND PRECEDENTS. 315 Froof of the intent. Crime, at common law, is made up of intent and act ; the wrongfulness of the intent constituting the criminality of the act. To com- plete the legal crime, an Intent to effect the wrong and an act performed in pursuance of such intent must concur, and without this com'bination there can be no crime.* And if the wrongful intent is present, the wrongful act com- mitted is a complete crime, though it may not be the precise act had in view." Where the intent is shared in by several persons, as in conspiracy, mutiny, &c., every one who has contributed to the intent, and at the same time engaged in the act, is criminal." In respect to the element of intent, crimes are distinguished as follows: — those in which a distinct and specific intent, independent of the mere act, is essential to constitute the offence ; and those in which the act is the principal feature, the existence of the wrongful intent being simply inferable therefrom. Of the former are murder, larceny, burglary, desertion and mutiny; of the latter arson, rape, perjury, disobedience of orders, drunkenness on duty, neglect of duty." In cases of the fomer class the characteristic intent must be estab- lished affirmatively as a separate fact; in the latter class of cases it Is only necessary to prove the unlawful act, for every man is presumed in law to have intended to do what he actually does, and the burden of proof is upon him to show the contrary." " When " — as observed by a U. S. Court " — " the proof shows that an unlawful act was done, the law presumes the intent, and proof of the act being a violation of law Is proof of the intent." 476 Tacts negativing intent. Under the head of the Defence in Chap- ter XVII, we have already considered certain facts and conditions, the efCect of the proof of which is to negative the existence of the element of wrong- ful intent In alleged crime, or to show an Incapacity to entertain such Intent. These are such as Ignorance or mistake of fact, Ignorance of law. Drunkenness, Insanity, Compulsion by military orders or by hostile force, and Necessity of executing military discipline. The subject of the intent will be further illustrated in considering the specific offences which form the subjects of the different Articles of war. II. How Much is to be Pboved. REASONABLE DOUBT. In a civil action the plaintiff needs in general but to make out a prima fade case, or to offer evidence materially preponderating over that of the defendant, to give him the verdict or judgment. But the quantity of the proof required (on the part of the prosecution) is considerably greater upon criminal trials, where there exists always in favor of the accused the presumption of innocence — a presumption from which results the familiar rule of criminal evidence that, to authorize a conviction, the guilt of the accused must be established beyond a reasonable doubt. By " reasonable doubt " is intended not fanciful or Ingenious doubt or conjecture, but substantial, honest, conscientious doubt, suggested by the material evidence in the case. " It is," as expressed by the court in a recent case," " an honest, substantial misgiving, generated by Insufficiency of proof. It is not a captious doubt, not a doubt suggested by the ingenuity of counsel or jury, and unwarranted by the testi- mony ; nor Is it a doubt born of a merciful inclination to permit the defendant 8 3 Greenl. Ev. § 13 ; 1 Bishop, C. L. § 285-287 ; U. S. v. Houghton, 14 Fed., 544. » 1 Bishop, C. U § 327-329. 10 1 Bishop, C. L. § 630, 636. 11 " Neglect in the discharge of a duty, or indifference to consequences. Is In many cases equivalent to a specific crimiral intention." tJ. S. i/. Thompson, 8 Sawyer, 122. ^3 Greenl. Bv. § 13, 14. ^V. S. V. Baldrldge, 11 Fed., 552. " Woolson, J., In TJ. S. v. Newton, 52 Fed., 290. 316 MILITAKT LAW AND PRECEDENTS. to escape conviction, nor prompted by sympathy for him or those connected with him." The meaning of the rule is that the proof mtast be such as to exclude, not every hypothesis or possibility of Innocence, but any fair and rational hypothesis except that of guilt ; what is required being not an absolute or mathematical but a " moral certainty." " A' court-martial which 477 acquits because, upon the evidence; the accused may possibly be inno- cent falls as far short of appreciating the proper quantum of proof re- quired in a criminal trial, as does a court which convicts because the accused is probably guilty. However convincing the testimony, it Is nearly always pos- sible that the accused may be innocent: on the other hand, though the prob- abilities may favor his guilt, a material and sensible doubt of the same may exist, of which he is entitled to the benefit. It is to be observed that the general rule indicated applies alike to each of the three main factfe required to be made out upon a trial, in oi-der to establish guilt, viz. — ^the corpus delicti, the identity of the accused with the real offender, and the requisite criminal animus. Each must be proved beyond a reasonable doubt." The rule is equally applicable to military as to civil prosecutions." III. What is to be Pbesumed. Prestunption in General — Kinds of Presumption. It 478 is observed by Bishop "^ that the whole law of evidence rests upon pre- sumptions, and it has been said, by a distinguished English judge," of proof itself that it Is "liothing more than a presumption of the highest order." Presumptions are most simply divided into presum^ptions of law and pre- sumptions of fact.'" Presumptions of law. These are general propositions established by the law, which are accepted without evidence by the courts as being either " abso- lutely " or prima fade true, and have thus been distinguished as " conclusive " and " disputable." ^ Conclusive presumptions are inferences of the law In " 3 Greenl. Et. I 29 ; 1 Bishop, C. P. § 1093, 1094 ; Wharton, Cr. Ev. § 1 ; Wills, Cir. Ev., 157 ; U. S. v. Douglass, 2 Blatchford, 212 ; D. S. v. Gleason, Woolworth, 128 ; U. S. V. Carr, 1 Woods, 486 ; U. S. Vj Babcock, 3 Dillon, 621 ; U. S. v. King, 34 Fed., 302 ; XI. S. V. Hughes, Id., 734 ; U. S. v. Meagher, 37 Fed., 881 ; U. S. v. Means, 42 Fed., 559 ; Com; V. Webster, 5 Cash., 320; Com. v. Costley, 118 Mass., 21; Com. v. Drum, 58 Pa. St., 22 ; Meyer v. Com., 83 Id., 131 ; Com. v. Carey, 2 Brewst., 304 ; G. O. 27, Army of the Potomac, 1864 ; Do. 46, Dept of the Mo., 1864 ; G. C. M. O. 67, Dept. of Cal., 1883 ; Manual, 71 § 42. And compare Cofln v. U. S. 156 U. S., 432 ; Cochran v TJ. S., Id.. 287. In U. S. V. Babcock, (p. 621-2,) Dillon, J., well observes :— " The defendant, by the policy of our law, can neither be compelled nor permitted to testify. As a snbstltute for this deprivation, the law clothes the defendant with a presumption of innocence which attends and protects him untU it Is overcome by testimony which proves his guilt beyond a reasonable doubt" This was said in 1876. But the fact that the accused may now be permitted to testify cannot, it is believed. Impair the initial legal presumption. ' It 's incumbent on the Government to prove beyond reasonable doubt the truth of every fact m tte indictment necessary in point of law to constitute the offence." Curtis, I" J'i:,"- }^f ^^' ^ ^'^'^' ^- ^^ '^ ^- «• "• ■^'^Sl^t. 16 Fed., 112 ; TJ. S. v. New- -ourtTnotT'!.'^; -^"S; ^' f'^"*"'" '°"'^' """"^ *>" *"« ^^ "« <:'l°'l°al evidence, «Z^l Th *?. ^^^ P'""'"""' "°™ *" reasonable doubt of his guilt is removed; BvT^69 G^^rTo Ta^tr^""'- *" ''" <="^^^' *<> "P^^^ in his favor" 3 Greenl "■1 C P.I' W96' ' ^*' *'^' °'^- ^"^"tt<=' 1886. -sJt°on ttis'di's'til^cHnn n*"^"'^ f''"'^' '"'^^■" ™^«' Circumstantial Evidence, 34. oee, on tnis distinction, D. S. ■». Searcy 26 Fed 437 thrt\f4TanT;rttmnrn'"''" T""" ^^ ""* ''^^'"'^^ *"'« aistinctlon, on the ground :s:^fs"u.Tharn:rr, cT. ^xz^aC T^^r^^-T'^;^^^ - -«- MILITAKY LAW AND PRECEDENTS. 817 regard to which, as it is expressed by Greenleaf,°° " all corroborating evidence is dispensed with and all opposing evidence is forbidden." Of these one of the most familiar is, that every sane person, who is a free agent, is " conclusively presumed to contemplate the natural and probable consequences of his owq acts." " So, according to the earlier authorities, an infant tinder seven years is " conclusively presumed incapable " of committng a felony.^* There is also the conclusive presumption, in favor of judicial proceedings, that the records of courts of justice have been correctly made up.^ Among disputable presumptions, (where the inference, though more or less strong, is not absolute but may be overcome by counter evidence,") are — ^the presumption in favor of the 479 innocence of every person accused of crime ; '" the presumption in favor of the sanity of persons in general, and, on the other hand, the presump- tion that unsoundness of mind, (not accidental or temporary, as upon disease or drunkenness,) proved to have existed at a previous date, has continued;™ the presumption of ownership arising from the open possession of property ; " the presumptions as to public officers, that they are legally in office, and that they properly performr their official duties '" — ^presumptions especially applicable to the military service." » 1 Greenl. Ev. § 15. » 1 Greenl. Ev. § 18 ; 3 Id. § 14. " The law makeg a man answerable for even the unexpected consequences of his crimes; and for this purpose imputes the intention to produce the consequence as well as the original act." State v. Cooper, 1 Green, 361. But see 1 Bishop, C. P. § 1100. « 1 Greenl. Bv. § 28 ; 3 Id. § 4. S6 1 Greenl. Bv. § 19. *" "All presumptions as to matters of fact, capable of ocular or tangible proof, « * • are in their nature disputable. No conclusive character attaches to them. Presumptions are indulged to supply place of facts. When these appear, presumptions disappear." Field, J., in Lincoln v. French, 13 Fed., 48. ^Warren, (p. 19,) says of this presumption: "It alone can guard against first Im- pressions, prepossessions and prejudices." A further presumption may here be noted, that in favor of the character of a witness till impeached. Johnson v. State, 21 Ind., 329. * Greenleaf, (1 Ev. § 42,) cites these two presumptions as illustrations of the more general one, that — " The opinions of Individuals, once entertained and expressed, and the state of mind once proved to exist, are presumed to remain unchanged until the contrary appears." In Sleeper v. Van Mlddlesworth, 4 Denio, 431, the court designate this presumption as one " against any sudden change in the moral, as well as the mental and social, condition of man." *» 1 Greenl. Bv. § 34. " It is true that a presumption of ownership or title does arise from the possession of personalty; but It is the lowest form of presumption, and Is subject to be rebutted by proof and the circumstances attending and surrounding the possession." Myers v. V. S., 24 Ct. CI., 456. ™ Griffith V. U. S., 22 Ct. CI., 183. It is "a presumption that one who publicly per- forms official functions holds the office in fact ; and no record OE other like proof of his appointment is, in the first Instance, required. • • • Official persons are presumed to have done their duty." 1 Bishop, C. P. § 1130, 1131. And see 1 Greenl. Bv. § 40, 83, 92, 195, 207. There are also the presumptions, founded upon the course of official public business, that certain results will follow If certain conditions are complied with. Thus if a letter is shown to have been deposited prepaid and properly addressed in the post office, it may be presumed. In the absence of rebutting evidence, that it reached its destination and was received. In U. S. v. Babcock, 3 Dillon, 571, the court applied the same rule to telegraphic dispatches. 1 Thus, on the trial of an officer or soldier, it is not necessary to produce the commis- sion, or prove the official character or rank of the officer ; or to produce the enlistment paper, or prove the formal enlistment of the soldier. It is sufficient to show that the officer has publicly acted and been recognized as such, and that the soldier has received pay or performed service as such. 3 Greenl. Ev. i 483 ; Lebanon v. Heath, 47 N. H., 359 ; O'Brien, 171. The rule of presumption of due appointment arising from the exercise of the office " would appear to apply with even more force to military than to civil officers." Jones V. Johnson, 24 Ark., 266, 260. 318 MILITAEY LAW AND PRECEDENTS. 480 Presumptions of fact. These are simply inferences as to tlie exist- ence of a fact derived from some other fact or facts, inferences not de- duced by the law, but by the human reason. Varying with the circumstances of every case, they are not peculiar to judicial investigations, but illustrate the ordinary operations of the intellect in arriving at conclusions in general. Ap- plied to criminal cases, they are inferences as to the fact of the guilt or inno- cence of the accused, deduced from minor facts and circumstances, physical and moral. They do not constitute or exemplify fixed legal principles, but " are in truth but mere arguments of wliich the major premise is not a rule of law.'"" Inculpatory and exculpatory presumptions. Of this class are the " incul- patory" presumptions, derived from collateral clrcumstanegs and declarations indicating a motive for crime, from preparations for the commission of crime," from failure to account satisfactorily for suspicious appearances, from acts apparently exhibiting a criminal consciousness, (as concealment, disguise, or flight,) from the suppression, destruction, simulation, or fabrication of evi- dence from attempts to prevent a fair trial, (as by endeavors to suborn or bribe witnesses, &C.,'') as well as from the numerous physical circumstances — such as impressions of foot-marks, blood on garments, possession of weapons or instruments likely to have been used in the commission of the crime, posses- sion of property recently In the possession of the subject of the larceny, violence, &c. — which go to identify an accused as the guilty party. Of this class also are various presumptions similarly deduced but of an " aeculpatory " character. Such are — the absence of apparent motive to commit the crime, the presence of a strong motive not to commit it, the fact of previous exemplary character, or of conduct and deportment not apparently reconcilable with guilt, the appear- ance of malice or falsehood on the part of the prosecuting witness, iScc." 481. Presumptions and " circumstantial " evidence. The above are some of the presumptions of fact, which, in nearly every criminal case not established by direct testimony, combine, (for they rarely arise separately,) to induce the conclusion either of guilt or the reverse. And it is the various grounds of these presumptions, such as have been specified, which mainly constitute the material of Circurmtantial as opposed to Direct evidence; the latter being the evidence, (comparatively rarely attainable in criminal trials,) of witnesses who testify from personal knowledge derived from the senses, as from seeing or hearing ; the former the evidence furnished by the great variety of minor facts, circumstances and indications connected with or relating to the principal fact of the crime committed, and affording presumptions, more or less strong or weak, of the guilt or innocence of the accused.'" IV. What is to be Judicially Taken Notice of. We find further, in entering upon the subject of evidence, many facts of a conspicuous, general, or public character, which so authenticate themselves in law that the courts take judicial notice of their existence as matters of coui'se, and which are not required either to be charged or proved. These, which have already been referred to in C hapter X on the Charge, are such as— The law^ '"1 Greenl. Ev. § 44. And see Id. § 48. "Ad unsuccessful attempt to establish an alibi has sometimes been cited as affording an inculpatory presumption against an accused ; but in general probably such a failure Should no more give rise to an unfavorable presumption than a failure to make »ut any other defence. See Miller v. People, 39 Ills., 457 " See Wills, Cir. Ev., Ch. Ill, IV and V. »See 1 Greenl. Bv. § 18; Wills, Clr, Ev., 15, 16; U. S. v. Searcy, 26 Fed., 437. MILITARY lAW AND PRECEDENTS. 319 Of nations and of war, the provisions of the Constitution, public statutes and executive proclamations, the system and framevcorli of the Government, " the powers of the President and of the heads of the executive departments, matters of public history, the existence of a pending war,™ the geographical features of the country ; " and so of the ordinary meaning of words in our 482 language,°° &c. Military courts will also take notice of the existence and situation of military departments, reservations and posts, and will accept as authentic, without proof of their authority, the published " general " orders, circulars, and usually " special " orders, emanating from the War De- partment or Headquarters of the Army, or from the headquarters of the different military divisions and departments of the army.™ So, inferior courts will properly talse judicial notice of the formal^ published orders of the com- mander of the regiment or post. Facts vidthln the common observation and knowledge of mankind will also be judicially taken notice of Without proof by military equally as by civil tribunals." II. ADMISSIBILITY OF EVIDENCE. This subject will be considered under the following heads : — I. General rules governing the admission of testimony ; II. Hearsay ; III. Confessions ; IV. Evidence excluded from considerations of public policy. I. GenEKAL RimES Go^'EENING THE ADMISSION OP TESTIMONY. THE THREE PRINCIPAL RULES. These, (which are the more directly illustrated by the testimony on the part of the prosecution,) may be stated as follows : 1. The evidence must be relevant ; 2. The burden of proof of guilt is always on the government ; 3. The best evidence must be produced of which the case is susceptible. 1. The evidence must be relevant. The testimony offered by the prosecu- tion, whether oral or written, must be relevant, that is to say, must be apposite to the material averments of the indictment or charge and be such as to estab- lish or tend to establish the commission of the ofCence alleged; otherwise, it may be objected to as " irrelevant " or " immaterial," and, upon such 483 objection, will, in general, properly not be admitted by the court." The testimony, to be admissible, need not indeed directly or immediately "In Cuyler v. Terrill, 1 Abb., (D. S.,) 169, it -was held that the U. S. courts would take Judicial notice of the existence of the civil war of 1861-1865 and " also of particu- lar acts which led to it, or happened during its continuance, whenever it becomes essential to the ends of justice to do so." =" 1 Greenl. Kv. § 5, 6 ; Wharton, Cr. Ev. § 308 ; La Vengeance, 3 Dall., 297 ; Furman v. Nichol, 8 Wallace, 44 ; Armstrong v. V. S., 13 Id., 154 ; Prize Cases, 2 Black, 635 ; Turner v. U. S., 21 Ct. CI., 24. ssNlx V. Hedden, 149 U. S., 304. =» See G. O. 121, Second Mil. Dist., 1867. A civil court, however, will not take judicial notice, without proof, of the orders issued by a military department com- mander. Burke v. Miltenberger, 19 Wallace, 519. *■ It is not necessary to prove facts which the jury may be presumed to know as well as any witness, or which are " within the ordinary observation of all men." Kraus v. B. R. Co., 55 Iowa, 338-9. *' It need hardly be remarked that the exclusive authority to decide upon the relevancy of testimony, whether objected to by a party or by a member, rests with the Court. A witness, of whatever rank, on a military trial, has no authority to pass upon the rele- vancy or competency of his own evidence. In G. O. 1, Dept. of the South, 1869, Gen. Meade, in disapproving certain proceedings of a court-martial, comments as follows : — " The court, on the application of the defence, directed a witness " (an ofScer) " for the prosecution to produce a copy of a certain paper, which he refused to do on the ground that it was the business of the defence to produce the original. The witness thus assumed the functions of the court in deciding upon the relevancy of the evidence, and his refusal was disrespectful and a grave breach of discipline." 320 MILITABY lAW AND FBECBDENTS. sustain the charge, provided it merely "constitutes a link in the chain of proof; ""and evidence offered which is seemingly irrelevant and Is objected to as such may yet be admitted by the court, if persuaded by the representations of the party offering it that it will be rendered relevant by other testimony to be subsequently introduced." To be relevant, the evidence must be confined to the i«««e in the case ; evi- dence as to the commission or attempted commission by the accused, at another time, of an offence quite ind^endent of and distinct from that charged, though of the same sort, is in general irrelevant and inadmissible.** Where, however, two or more criminal acts or attempts have been committed by the accused at the same time, or as parts of the same transaction or system, evidence in regard to the one may be relevant as lUostrating the commission of the other." 484 So, evidence of collateral facts — as declarations or acts of the accused, or an accomplice, made or done before, or even after, the commission of the offence charged — ^may sometimes be relevant and admissible as tending to prove intent or guilty knowledge." But though evidence, to be admissible, must tend to prove the issue, yet, except as to matters of essential description, it is relevant and sufficient if it supports only subatantiaUi/ the allegations of the charge.*' Mere surplusage in the charge need not be noticed in the proof, and averments which are formal merely or immaterial need not be proved as laid. Thus the formal averment in an Indictment for homicide, that the killing was done with a particular weapon, need not be verified by the evidence, but it will be enough to show that any other deadly weapon was employed." So of the allegations of time, place, quantity, quality, and value — ^the rule as to relevancy does not require strict proof ; *" and this especially in military cases. In view of the authority of courts-martial to except and substitute in their findings. As to time and place in military specifications, while these may sometimes require to be more pre- cisely distinguished — as where a series of distinct offences of the same class are alleged to have been committed on separate days — ^it is in general sufS- cient if the time be shown to have been within the legal period of limitation," and the place within the jurisdiction of the court, that is to say, within the United States. The rule as to relevancy applies also to the defence. Whether testimony on the part of the accused is or not relevant must be determined by the nature of the defence in each case. In a military case, not only is such testimony relevant as goes to the gist of the particular defence, but also such as may establish good character or avail to extenuate the punishment in case of con- viction. " 1 Greenl. Bv. § 51 o ; Thompson v. Bowie, 4 Wallace, 471. " 1 Greenl. Bv. § 51 a ; D. S. v. Flowery, 1 Sprague, 109 ; G. O. 41, Dept. of the Platte, 1870. Such evidence Is sometimes admitted, " subject to the proof to he given here- after ; " that is to say, subject to be accepted and retained, or rejected, in the end, according as subsequent testimony may or may not show It to be relevant. See Kelly V. Crawford, 5 Wallace, 790. «The purpose of such testimony, as generally offered, vim. to raise an inference that the accused committed the similar act charged in the Indictment, cannot be recognized as legitimate. See People v. Jones, 31 Cal., 565. " 1 Greenl. Bv. § 52, 53 ; Wharton, Cr. Bv. § 32, 38, 49 ; Wills, CIr. Ev., 44 ; Manual, 65 § 21. The collateral offence must form " a link in the chain of circumstances or proof relied upon for conviction." Swan v. Com., 104 Pa. St., 218. "Manual, 66 | 22-25. *'l GreenL Bv. S 56, 63. "1 Greenl. Bv. § 50. "1 Greenl. Bv. $ 61. » As to the role In civil prosecutions, see McBryde v. State, 34 Ga., 203, MILITARY LAW AJSTD PRECEDENTS. 321 Where Irrelevant or immaterial testimony has been admitted in a ease, but such testimony was manifestly such as could not have affected the flnd- 485 ing or impaired the rights of the accused, the same should not be re- garded as sufficient to induce a disapproval of finding or sentence." 2. The burden of proof of guilt Is always on the prosecution. It is a general rule of evidence that "the obligation of proving any fact lies upon the party virho substantially asserts the affirmative of the Issue." " And upon a criminal trial, where there stands at the threshold the presumption of the innocence of the accused, and the affirmative of the Issue Is thus necessarily asserted by the Government, the burden Is imposed upon the prosecution of proving the existence of every material fact required to establish the offence charged. The onus probaniA is not always confined to the proof of a proposi- tion affirmative in form. The gist of the offence may be a criminal neglect," and here the prosecution is called upon to prove a negative. This more fre- quently occurs in military than in civil eases, several of the Articles of war making punishable in terms the not doing of some duty incidental to the military status, or the doing of some act without the authority of the proper superior. One or the other of these negative elements may be perceived In offences designated in Arts. 7, 15, 16, 17, 23, 31, 32, 33, 35, 35, 40, 60, 67, 69 ; but it is the general charge laid under Art. 62, of "neglect of duty, to the prejudice of good order and military discipline," that most conspicuously Illus- trates the frequency of the obligation to prove a negative which is Imposed upon the government in military cases. Yet the negative here is often but an affirmative in another form; the issue requiring the proving affirmatively of the commission of a specific act the doing of which is alleged to constitute the offence. The burden of proof of guilt never shifts from the side of the prosecution. The accused may Indeed admit the commission by him of the act charged, claiming that it did not constitute an offence on his part because of the existence of a certain fact which he sets up as a defence. Asserting this defence, the burden is upon him to maintain it. But the onus of proving gwiW remains with the State, and if the accused so far makes out his defence as to 486 involve the main issue in a reasonable doubt, the prosecution must dispel this doubt by further evidence, in order to obtain a conviction." 3. The beat evidence must be produced of which the case is susceptible. The rule that proof is to be made by the highest existing evidence is one of quality, not of qiuintity.'"' It does not require that the greatest amount of evidence should be accumulated for the proof of any fact, but only that every aUegatlon should be established by the best, that is to say most authoritative and legally satisfactory, evidence of which the case is capable. But again the rule does not mean that indirect or circumstantial evidence, or evidence of less strength, is to be rejected where direct evidence or evidence of greater strength exists and may be produced; for indirect, weak, or imperfect evidence is equally admissible in law with direct, strong, or full evidence, provided only it be relevant What is meant Is that, where the evidence actually offered Indi- cates of Itself the existence of higher evidence for which it is clearly only " See V. S. V. Jones, 32 Fed., 570. » 1 Greenl. Hv. § 74. "l Greenl. Ev. § 80. « See, in this connection, 1 Bishop, C. P. § 1050, 1061. » See Manual, 71 § 41 ; H„ 78 § 44. 440S93 O - 42 - 21 322 MILITABY LAW AND PRECEDENTS. a substitute, tlie substitutional evidence is Incompetent and not to be admitted if objected to." The familiar application of the principle is to cases in which record evi- dence or other ivritten evidence exists of a material fact which is attempted, in the course of the trial, to be established by oral testimony. Where such testimony, as offered, discloses the fact of the existence of the written proof which the law regards as of higher quality, (or where such fact has been disclosed by the pleadings or by previous testimony,) the secondary evi- 487 dence may be objected to and, upon objection, vrtll properly be excluded." Thus, in proving a charge of perjury or false swearing, committed at a miatary trial, the record of the trial is clearly the best evidence of the testi- mony given by the accused, and parol evidence of the same, unless Introduced by consent, vsrill be inadmissible." The rule excluding the oral testimony in such cases is adopted not only because the writing must necessarily afford the most satisfactory evidence of the facts which it sets forth, but also, as Greenleaf observes, " for the prevention of fraud ; " since, as he adds, " whenever it is apparent that better evidence Is withheld, it is fair to presume that the party has some sinister motive for not producing it, and that, if offered, his design will be frustrated. The rule thus becomes essential to the pure administration of justice.'"* But It may happen that oral testimony may be the original and best evidence as to a fact or facts when a statement of the same exists in writing. Thus where certain facts within the knowledge of the writer, and material to the Issue in a case on trial, have been recited in an official endorsement, certificate, communication, or other writing, the primary and best evidence of su-ch facts will be not the writing but the personal declaration of the same, under oath and subject to cross-examination, by the writer, and if he can be obtained as a wit- ness, the written statement should not be received." Exceptions. To the general rule, however, there are certain exceptions, 488 growing out of considerations of public policy and convenience, or out of the necessities or peculiar circumstances of the case. Thus pub- lic records and -documents may be proved by copw, as will be hereafter indi- cated ; though copies of writings which are not public records will be secondary " " The rule of law is that the best evidence must be given of which the nature of the thing is capable; that is, that no erldence shall be received which presupposes greater evidence behind, in the party's possession or power.'' Marshall, C. J., In Tayloe V. Riggs, 1 Peters, 596. And see Ang.-Am., &c., Co. v. Cannon, 31 Fed., 313 ; 1 Greenl. Ev. I 82, 84 ; Manual, 68 § 30. The twfl sorts of evidence thus related are sometimes termed " primary " and " secondary." Even when secondary evidence is obliged to be furnished, it must be the best the party has It in his power to produce under the circumstances. Cornett v. Williams, 20 Wallace, 226. In a case of desertion, in G. C. M. O. 25, Dept. of the Mo., 1887, the proceedings and sentence were disapproved because the best evidence to prove the offence, though accessible to the prosecution, was not introduced. "That written post orders are not properly provable by parol, if it is practicable to produce them, see G. O. 60, Third Mil. Dlst., 1867 ; Do. 11, Dept. of the South, 1869. » See recent eases in G. C. M. O. 93, Dept. of the East, 1884, and in Do. 2 Dept. of the Mo., 1888, where the above paragraph is cited by Gen. Merritt. •• 1 Evidence § 82. And see U. S. v. Eeyburn, 6 Peters, 367 ; Manual, 68 § 30. " The withholding of the better -evidence raises a presumption that, if produced, it might not operate in his favor." Tayloe v. Biggs, ante. It is the duty of the court to see that the best evidence is procured If practicable, and where a witness, having important and material papers in his possession, refuses to appear and produce them, the court will properly call upon the ]udg6 advocate to attach him if necessary. See G. C. M. O. 32, Dept. of the Columbia, 1882. •» See G. O. 28, Dept. of the South, 1864 ; Do. 39, Dept. of the Susquehanna, 1864 : Do. 45, Dept. of the East, 1872. MILITABY lAW AND PKBCKDBNTS. 323 and Inadmissible.*' A further exception has been admitted where tbe charge is to be proved out of voluminious or complicated accounts or similar documents, the introduction and inspection of which In court must be attended with great inconvenience, or entail unreasonable delay. Here an accountant or other competent person who has made the proper examination may be introduced to testify to the contents of the writings," and schedules prepared and verified by him may also be admitted." Lost or destroyed writing. An occasion for the substitution of secondary evidence is also presented where a material writing has been lost or destroyed." A party proposing to prove by secondary evidence a writing which has been lost, must properly first offer some evidence that a pai)er of the character has existed, and that a " iona fide and diligent search has been unsuc- 489 cessfuUy made for it In the place where It was most likely to be found, if the nature of the case admits of such proof." " Where the paper was lost out of the party's own custody, his affidavit as to the fact and circum- stances of the loss may be offered," or he may be allowed to be sworn to the fact in court." Where the paper has been destroyed, the fact of its previous ^Istence and of the circumstances of its destruction must be shown, — (and the affidavit, or statement on oath before the court, of the party, is admissible, if the facts rest in his knowledge alone,) — before secondary evidence of Its con- tents can become competent." " Ang.-Am., Ac, Co. v. Cannon, 31 Fed., 313. »'l Qreenl. Ev. § 93. « E. K. Co. V. Dana, 1 Gray, 83. Greenleaf, (vol. 1 § 94,) adds : — " Under this head may be mentioned the case of inscription^, on walls and fixed tatles, mural monuments, gravestones, surveyors' marks on boundary trees, &c., which, as they cannot conveniently be produced in court, may be proved by secondary evidence." Otherwise, where things of this nature can be conveniently brought into court; as a primted notice, not affixed to the freehold but merely hung up in an office. Jones v. Tarlton, 1 Dow, P. 0. (N. S.) 625. "* " Secondary evidence of the contents of written instrliments Is admlsslhle wherever It appears that the original is destroyed or lost, by accident, without any fault of the party offering the evidence." Eemer v. Bk. of Columbia, 6 Wheaton, 581. And see D. S. V. Beybum, 6 Peters, 365 ; U. S. v. lanb, 12 Peters,. 1 ; WUliams v. V. S-, J Howard, 290. In TJ. S. v. Lyon, 2 Cranch C, 309, the court refused to receive parol evidence of the contents of a written challenge, in tbe absence of evidence that tiici same had been lost or destroyed. In the recent case of Magie v. Herman, 50 Mln., 424, it has been held that a person, in transmitting a communication by telegraph, " makes the Telegraph Company bis agent, and the transcribed message actually delivered is primary evidence; and If lost or destroyed its contents may be proved by parol." That tbe written message delivered to the receiver is the original, see Brewing Asstn. v. Hutmacher, 127 Ills., 652. °* 1 Greenl. Bv. § 558. Slight evidence of the previous exletenoe of the paper Is suffi- cient. Id. § 349, 558. " It seems that ih general the party is expected to show that be has In good faith exhausted, in a reasonable degree, all the sources of lnformatloi\ and meai^s of discovery which tbe nature of the case would naturally suggest and whicb were accessible to him." Id. § 558. And see Eelsey v, Hanmer, 18 Com., 311 ; Fostei V. McKay, 7 Met., 531. "l Greenl. Bv., 349, 558; Foster v. McKay, ante; Allen v. Blunt, 2 Wood. & Minot, 121 ; Maye ■». Carberry, 2 Cranch C, 336. "" Fitch V. Bogue, 1» Conn., 285 ; Vedder v. Wllkins, 5 Denio, 64. The statement of the accused, when thus presented. Is not in the nature of the testimony of a witness to the merits of the case, but formal and preliminary merely and addressed to the discretion of the court, — as in the instance of the swearing by a party to his having given notice to produce papers, (see poet,) or to an affidavit for a continuance to procure testimony. "^ See authorities cited in the two preceding notes ; also Pillow's Case, (Court of In- quiry,) p. 30-31. Upon the waiver of the opposite party, the simple' statement of a party as to tbe fact of loss or destruction, (unaccompanied by bis oath,) may be ac- cepted by the court, in its discretion, as sufficient. 324 MILITABY LA.W AND PBECBDBNTS. Paper in adverse possession — ITotice to produce. A further instance in which secondary testimony as to a writing may be liitroduced in lieu of the writing itself Is presented where the paper or document desired to be put in evidence is in the possession or under the control 'of the adverse party." For the admission of such testimony a foundation must be laid, by the party pro- posing to avail himself of the evidence, by a showing on his part that he has done all that the law requires of him to induce the production of the original. What the law requires is, that he shall first give a notice to the adverse party, (or his attorney,) to produce the original in court, to be admitted and 490 used in evidence." The notice should generally be in writing, and should clearly describe the paper or document called for, so that it cannot be mistaken." It should ordinarily be served, if practicable, before the trial, so that there may be ample opportunity for complying with it : " if the occasion, however, for using the evidence does not arise till during the progress of the trial, the notice may be served at that time, and, unless required by the adverse party to be in writing, may be given verbally in the presence of the court." The proper time for calling for the production of writings, to produce which notice has been given. Is held to be — " not until the party who requires them has entered upon his case."" It has been held by a United States Court that books and papers produced under notice must be allowed to be used by the other side unconditionally; else parol evidence of their contents may be given." II. Heabsat. 491 BULE OF EXCLUSION. Intimately connected with the rule last considered, requiring the production of the " best evidence," is that which excludes the species of secondary evidence known as hearsay. "The term ' hearsay,' " says Greenleaf," " is used with reference to that which Is written "" " If papers are In the possession o( the opposite party, due notice for their prodac- tion should be given ; after which. If not produced, secondary evidence may be given of their contents." Simmons S 1035. ™1 Greenl. Ev. § 560, 662; U. S. v. Winchester, 2 McLean, 136; Allen v. Blunt, 2 Wood & Minot, 121 ; Maye v. Carberry, 2 Cranch C., 336 ; Underwood v. Huddlestone, Id., 76. The party must not only give notice to produce, but must prove the existence of the original, and must show that the Instrument is In the hands or power of the opposite party. That It Is so, " very slight evidence will raise a sufficient presumption," where the Instrument belongs to him, or has been or should regularly be In his posses- Blon, or In that of Ms agent or other person in privity with him. 1 Greenl. Bv i 660, note. The fact that the adverse party or his attorney actually has the paper In court does not dispense with the usual notice. See 1 Oreenl. Ev. % 561, note. "1 Greenl. Ev. § 562; Sogers v. Custance, 2 M. & Rob., 179; Jacob v. Lee, Id., 33. " See 1 Greenl. Ev. § 562 ; Choteau v. Kaltt. 20 Ohio, 132 ; Emerson v. Ksk. 6 Greenl., 200. "See Smith v. Toung, 1 Campb., 440. A voluntary offer by the adverse party to produce the paper Is a waiver of notice. DwlneU v. Larrabee, 38 Maine, 464. ^u "l^^o^es necessary to prove the fact that notice was given, this may be done by the affidavit, or statement in court under oath, of the party, or of his counsel or other person through whom it was communicated or served «"UntU which time the other party may refuse to produce them, and no cross-ex- amination as to their contents is usually permitted." 1 Greenl. Bv. § 563. It may be noted here that it ,b held that, after notice and refusal to produce a paper, and sec- ondary evldoice thereupon given of Its contents, the adverse party cannot be permitted to produce it In evidence as part of his own case. Doe v. Hodgson, 12 Ad. & Bl., 185. « Carr v. Gale, 3 Wood. & Minot, 38. s , a . « lui., ioo. " 1 Evidence § 80. And see Manual, 73 § 46, 77 | 59. MILITAlnf LAW AND PBECEDENTS. 325 as well as to that which is spoken ; and, in its legal sense, it denotes that kind of evidence which does not derive Its value solely from the credit to be given to the witness himself, but rests also, In part, on the veracity and competency of some other person." Such evidence, in the words of Chief Justice Marshall," " is Incompetent to establish any si)eclflc fact which is in its nature susceptible of being proved by witnesses who speak from their own knowledge." This kind of testimony is uniformly held Inadmissible, not only on account of Its Intrinsic uncertainty growing out of the fact that It consists of matter repeated at second hand at least, as well as because It presumes the existence of better testimony and because It may serve as a cover to fraud and perjury, but especially because it Introduces Into the case statements not made under oath, and the truth of which cannot be tested by the criterion of cross-examination." HEARSAY BISTIiarOUISHED FBOU: OBIOINAI. TESTIMONY. It is to be noticed that the statements of a third person are not always hearsay, 492 but may constitute original facts, as proi)erly admissible as any other original testimony. Thus where a question at issue in the case is whether certain words were actually spoken (or written) by a person other than the witness, or whether a certain confession or admission was made by such person, a recital by the witness of the words or terms employed Is original testimony, and an objection to Its admission should be overruled. So, in a military case, where the question is whether a certain order of a superior which the accused Is charged with disobeying was actually given, a witness other than such superior may be admitted to testify as to the facts and terms of the order " KES GESTiE. Other declarations of third persons which are admitted in evidence as being not hearsay, but original testimony, are those which fall within the class of the " res gestw," as the legal phrase is. By the res gestee is meant the circumstances and occurrences attending and contemporaneous with the principal fact at Issue, or so nearly contemporaneous with it as to constitute a part of the same general transaction, which explain and elucidate such fact by indicating Its nature, motive, purpose, &c." Such are threats of dec- larations of the accused in connection with his conmiission of the crime charged and indicating his intent or knowledge ; declarations or exclamations of the party injured, relating to the violence committed, going to indicate its nature, by whom committed, &c. ; language of accomplices; cries of bystanders In '" Qneen v. Hepburn, 7 Cranch, 295, reaffirmed in Hopt v. Utah, 110 U. S., 574. "In Merritt v. Mayor, 5 Cold., 95, It was remarked by the court that — "the declara- tions and conversations of miUtary officers are not exempted from the common rules of evidence, but are mere hearsay and excluded as those of ordinary citizens." Otherwise, of course, where they are a part of the rea geat(B. See post. The 'introduction of mere hearsay evidence by courts-martial has been repeatedly disapproved by reviewing officers. See instances in O. O. 118. Dept. of the East, 1870 ; Do. 84, Dept. of Dakota, 1874. In a recent case In G. C. M. O. 14, Dept. of the East, 1894, the proceedings are disapproved " in so far as they show remarks made by the judge advocate to the court as to the statements of witnesses who had been examined by him before the trial and who were npt called to testify. Bemarks of such a character," it is added, " are inadmissible. When Information Is desired from persons not before the court, they should be regularly called and duly sworn to set forth facts within their knowledge." " So, where the question is, whether the party acted prudently, wisely, or In good faith, the information on which he acted, whether true or false, is original evidence. 1 Greenl. Ev. g 101. The -rule. It may be noted here, "does not exclude evidence as to statements made in the presence of the prisoner," Manual, 74 § 48. *> Beaver v. Taylor, 1 Wallace, 642; U. S. v. Boudenbush, Baldwin, 514; State v. Keoie, 50 Mo., 357 ; Blount v. State, 49 Ala., 381 ; Head v. State, 44 Miss., 731 ; Whar- ton, Cr. Bv. § 263. Declarations offered in evidence as rea geata must be shown to be voluntary and spontaneous, and made so near in time to the principal transaction as to preclude the idea of deliberate design. People v. Vernon, 35 Cal., 49. 326 MILITARY LAW AND PRECEDENTS. concert with the accused or party assailed by him; declarations of agents in regard to pending transactions, &c. : — all such may be established by the testimony of persons present who heard the utterances, &c. Other circum- stances admissible in evidence as of the nature of res gestw would be the words and acts of Oiird persons — seconds for example — which go to Indl cate whether a. certain communication is a challenge to fight a duel, 493 or an acceptance of a challenge, in violation of the 26th Article of war. EXCEPTION TO BTTLE EXCLTTDING HEARSAY— Dying declarations in cases of homicide. Under indictments for murder and manslaughter, the law recognizes an exception to the rule rejecting hearsay, by allowing the dying declarations of the victim of the crime, in regard to the circumstances which have Induced his present condition, and especially as to the person by whom the violence was committed, to be detailed in evidence by one who has heard them." It is necessary, however, to the competency of testimony of this character — and it must be proved as preliminary to the proof of the declara- tion" — that the person whose words are repeated by the witness should have been in extremis and under a sense of impending death, i. e. in the belief that he is about or soon to die ; " though it is not necessary that he should himself state that he speal£S under this impression, provided the fact is otherwise shown." And if this beUef on his part sufficiently appears, it is not essential to the admissibility of his words that death should have immediately followed upon them." On the other hand if, in uttering the words, he was under the impression that he should recover, the same would be inadmissible even if in fact he presently died." But It is no objeeUon to their admissibility that they were brought out in answer to leading questions," or upon urgent solicita- 494 tions addressed to him by any person or persons ; ^ and if, instead of speaking, he answered the questions by intelligible signs, these signs may equally be testified to." But It is held that only such declarations are ad- missible as would be admitted if the party were himself a witness ; so that where the language employed is irrelevant or consists in a statement of opimim, instead of fact, it cannot be received." Nor can it be received unless com- plete In itself; as where the declaration is left incomplete and uncertain because interrupted by death." If it was put in writing at the time, the flo.T.'l'^ ""^ teBtimony of an accomplice is admissible against his fellows, the dying " KeUy II. TJ. S., 27 Fed., 616. «"The persons whose declarations are thus admitted are considered as standing 1 Greenl. Ev. | 158 ; People v. Sanchez, 24 Cal., 17 : Wills v Stat^ 74 aio oi " See Rakes v. People, 2 Neb., 157. ®' **' ^* ^'*-' ^^■ " See 1 Greenl. Ev. | 158 24 Cal., 17. ^ ^^ ^""*^ ^^ '^^^"'e questions. People v. Sanchez, »1 Greenl. Ev. § 161 a; Vass Case, 3 Leigh, 852. "1 Greenl. Ev. 8 161 5; Com. ,;. Casey, 11 Cush., 417 Cran^c! n^Tl^Zl^'t f ^^ ^"'^^ "^ ''^"''- '' ^^''^- ^^^■' ^- «• - Veitch. 1 "1 Greenl. Ev. f 161 o; Vass Case, 3 Leigh, 786. MILITAKY LAW ASTD PEECEDBNTS. 327 writing sliould be produced." Dying declarations are admissible as well in favor of the accused as against him." It is to be remarked that evidence of dying declarations, made as such usually are under circumstances of mental and physical depreciation, and without being subjected to the ordinary legal tests, is generally to be received with great caution." III. CoNrESSIONS." BIFFERBNT KINDS OF CONFESSION. Confessions are said to be judi- cial or eaitra-juAicial. The former are those made in court, as by the plea of guilty ; the latter are all those which are made elsewhere than In court. They are also express, as when made by the accused in specific terms either 495 orally or in writing ; or implied, as where they are deduced from his silent acquiescence in statements in regard to his alleged offence, made in his presence by others, when there is nothing to prevent his contradicting, qualifying, or otherwise replying to, such statements." But of course the evidence of such acquiescence nrust be very clear and positive to assign to it the efficacy of a confession" ADMISSIBILITY OF COflFESSIONS. As to the requisites to the admis- sion in evidence of extra-judicial confessions — it has been seen, in the first place, that a confession can not be admitted in evidence till the corpus delicti — ^the fact that the alleged criminal act was in fact committed, by somebody — is proved."" In the seond place, it Is helh that a confession, to be admitted, must be offered in Its entirety, so that the whole may be taken together, and the com- plete purport may fully appear. If a material part is withheld the part offered should not be admitted."" A judge advocate upon a military trial may desire to keep out of sight a portion of a confession because it implicates parties other than the accused ; but this is a reason not recognized as sufficient at law, since a confession is not evidence against any person (not an accomplice) other than the one who makes it.* So, the judge advocate may prefer not to discover " As being the " best evidence." State v. Cameron, 2 Chand., 172. «Mattox V. V. S., 146 U. S., 140. « 1 Greenl. Bv. § 162 ; Manual, 74 § 49. In Murphy li. State, 37 III., 447, the dying person was under the influence of morphine and had to be aroused to get bis statement out. In People v. Enapp, Edmonds, 177, It is noticed that the evidence Is especially unsatisfactory where it appears that the deceased was a person of bad character who might, in his declaration, have charged the accused with the crime through motives of hostility and revenge. " The subject of Admissions, as distinguished from that of Confessions, pertains rather to civil suits than to criminal proceedings. It is enough to note here that all facts admitted by either party, or obviously assumed on the trial, are to be regarded as being as much in the case as If they had been expressly proved. See Kennedy, 172 ; Paige v. Fazackerly, 36 Barb., 392. " See 1 Greenl. Ev. § 215 ; Wharton, Cr. BV. § 680 ; Kelley v. People, 55 N. T., 565 ; G. O. 48, Dept. of the Platte, 1871. "^The mere fact, for example, that the accused remains silent when guestioited as to the offence committed, Is not to be regarded as equivalent to a confession in law. See Campbell ■». State, 55 Ala., 80; Digest, 258. In Marvin v. Dntcher, 26 Min., 391, It Is held that where It Is not the dutv of a person to spealt as to the existence of an alleged fact, his silence cannot be taken as an admission against him. M. See ante — " What is to be proved ; " also G. C. M. 0. 8, Dept. of Arizona, 1892. I" 1 Greenl. Ev. I 217 ; U; S. v. Wilson, Baldwin, 78. G. O. 48, Dept. of the Platte, 1871. " If a confession is given in evidence, the whole of it must be given, and not merely the parts disadvantageous to the accused person." Manual, 81 § 80. > The mere fact that two persons are charged and tried jointly does not render a confession made by one admissible in evidence against the other. State v. Weesel, 30. La. An., 919. 328 MILITAEY lAW AND PRECEDENTS. a certain portion of the confession, on the ground tliat It is erroneous and unsatisfactory; but this also is not a sufficient reason, since he is at liberty to contradict such portion by other evidence." He must, therefore, 496 (unless objection Is waived,) introduce the entire confession or wholly withhold it. But the most familiar requisite to the admissibility of a confession is that it must have been voluntary; ' and the onus to show that it was such is upon the prosecution in offering it.* A TOnfession is, in a legal sense, " voluntary " when it Is not Induced or materially influenced by hope of release or other benefit, or fear of punishment or injury, inspired by one in authority ; or, more specifically, where it is not induced or influenced by words or acts, — such as promises, assurances, tlireats, harsh treatment, or the like, — on the part of an official or other person competent to effectuate what Is promised, threatened, &c., or at least beUeved to be thus competent by the party confessing." And the reason of the rule is that where the confession Is not thus voluntary, 497 there is always ground to believe that it may not be true.' Though con- fessions are In the majority of cases made to officials holding the party in confinement or arrest, the mere fact that he is in custody at the time of making the confession does not stamp it as involtmtary.' But the confession, though it must have been voluntary, need not have been spontaneous. It will be admissible though induced by the exhortations of a spiritual adviser, by appeals to the accused founded upon the claims of justice, the rights of other persons whose safety or interests are involved in his de- claring the truth, &c., or by any other Influence " collateral to the proceedings " "tr. S. V. Long, 30 Fed., 678. " U. S. -v. Pumphreys, 1 Cranch C. C, 74 ; IT. S. v. Hunter, Id., 317 ; U. S. v, Charles, 2 Id., 76 ; U. S. «. Pockllngton, Id., 292 ; U. S. v. Nott, 1 McLean, 499 ; Hopt v. Utah, 110 U. S., 575 ; Com. v. Myers, 160 Mass., 630 ; Leifevre v. State, 50 Ohio, 584 ; State v. Drake, H3 No. Ca., 624 ; Gallagher v. State, 24 S. W., 288 ; Collins v. Com., 25 S. W., 743 ; May v. State, 38 Neb., 211 ; Goodwin v. State, 15 So., 571 ; Regina v. Thompson, 2 Q. B., 12, (1893.) •Nicholson V. State, 38 Md., 140, and cases referred to In last note. See also the principle Illustrated in military cases published In the following Orders : G. C. M. 0. 3 of 1876; G. O. 31. Dept. of Florida, 1865; Do. 54, Dept. of Dakota, 1867; Do. 5, Fifth MU. Dist., 1868 ; Do. 48, Dept. of the Platte, 1871, G. C. M. O. 16, Div. of -the Pacific & Dept. of Cal., 1881. "The course of practice is to inquire of the witness whether the prisoner had been told that It would be better for him to confess, or worse If he did not ; or words to that effect" G. O. 48, Dept. of the Platte, 1871. " " Of course such inducement must be held out by some one who hag, or who is sup- posed by the accused to have, some power or authority to assure him the promised good, or cause or Influence the threatened injury." Shaw C: J., in Com. •». Morey, 1 Gray, 461. And see Com. -o. Taylor, 5 Cush., 610; V. S. v. Pockllngton, 2 Cranch C., 293; Cady V. State, 44 Miss., 332 ; Joy on Confessions, 5, 23 ; 1 Greenl. Bv. § 222 ; ■WhartoiJ, Or. Ev. § 650, 651 ; Manual, 80, 81 ; G. C. M. O. 16, Div. of the Pacific & Dept. of Cal., 1881. It is held that though infiuences may have been used that per se would render a con- fession incompetent, the same may be admitted In evidence if It is shown that the efCect of such influences was in fact entirely dispelled .before the confession was actually made. See 1 Greenl. Ev. 5 221 ; State v. Gfuild, 5 Halst., 180 ; People v. Jim Tl. 32 Cal 60 • Manual, 81 S 77. "1 Greenl. Ev. § 231; People v. Ah Ki, 20 Cal., 177. But where a confession In- duced by a promise, &c.. Is shown not to have been false by tbe fact that property con- fessed to have been stolen is surrendered, or its place of concealment truly disclosed, the confession, or rather the fact which accompanied it or was discovered in consequence of it, IS admissible m evidence against the accused. U. S. v. Hunter 1 Cranch C 317; V. S. r Kichard, 2 Id., 439; Frederick v. State, 3 West Va., 695*; People v. Ah "" v' . 1^'^^^ discovered In consequence of a confession improperly obtained, and nalTl confession as distinctly relates to those facts, may be proved." Man- ' Wharton, Cr Ev. § 672; Wiley v. State, 3 Cold., 362; Com. v. Hanlon, 3 Brewst, 461 ; Hopt V. Utah, 110, 575. «="=«.., MILITABT lAW AND PBECEDENTS. 329 and not such as to induce a substantial hope of favor or fear of punishment." So it will be admissible though elicited by questions addressed directly to the accused by a person in authority and assuming his guilt, or by means of mak- ing him partially intoxicated,' or by practicing upon him some deception by which he is entrapped into confessing." In military cases, in view of the authority and influence of superior rank, confessions made by inferiors, especially when ignorant or inexperienced and held in confinement or close arrest, should be regarded as incompetent unless very clearly shown not to have been unduly influencedi Statements, by way of confession, made by an inferior under charges to a commanding ofiicer, 498 judge advocate, or other superior whom the accused could reasonably believe capable of making good his words, upon even a slight assurance of relief or benefit by such superior, should not in general be admitted. Thus in a case where a confession was made to his captain by a soldier upon being told by the former that " matters would be easier for him," or " as easy as possible," if he confessed, such confession was held not to havte been voluntary and therefore Improperly admitted." And it has been similarly ruled in cases of confessions made by soldiers, upon assurances held out, or intimidation resorted to, by non-commissioned olficersi" These principles are equally applicable to a written as to a verbal confession. But it is to be remarked that where, (as is often the case when it has been drawn up by another person,) a written confession specifies that the statement is freely made, without hope of favor or advantage, or fear of injurious conse- quence, (or in words to that effect,) the inquiry as to whether it was m fact voluntary is In no manner precluded." But a confession, viTltten or verbal, may always be confirmed by evidence going to establish its truth and to prove that it has not been fabricated." COITFESSIONS OP ACCOMPLICES. Applying here the general principle attaching to conspiracies and concerted crimes, it may be remarked that, a conspiracy or combination having once been proved, a confession by one con- spirator or accomplice, provided it relate to the matter of the intended or pending criminal transaction, and be made before the purpose of the association has been accomplished, is admissible in evidence against any other conspirator or accomplice." 499 CONTESSIONS TO BE RECEIVED WITH CAITTION. In view of the peculiar conditions of mind and body under which accused persons « 1 Greenl. Ev. § 229 ; Manual, 80 S 76 ; TTrank v. State, 39 Miss., 705. ' 1 Greenl. Ev. § 229 ; Wharton, Cr. Ev. g 676 ; Manual, 81 I 79 ; People v. Ramirez, 56 Cal., 533. But the confession, of a person who Is too much intoxicated to he re- sponsible for his statements is not competent evidence. See 6. O. 234, Fifth Mil. Dist., 1869. lo ■• Provided there is no reason to suppose that the inducement held out -was cal- culated to produce any untrue confession, which is the main point to he considered." 1 Greenl. Bv. § 229. And see Manual, 81 § 79 ; also, as very full on this general branch of the subject of justifiable inducements, &c., Wharton, Cr. Ev. § 647, 648, 654, 655, 657, 659, 660, 663, 670, 675, 676. " G. C. M. O. 16, mv. of the Pacific & Dept. of Cal., 1881. "> G. C. M. O. 3 of 1876 ; G. O. 54, Dept. of Dakota, 1867. And see Instance reported in Digest, 397-8. "■ In a case in G. O. 11, Army of the Potomac, 1864, the proceedings were disapproved because the court would not allow the accused to show that he had signed a written confession without knowing its contents and upon false representations made to him as to the same. " See 1 Greenl. Ev. S 231. So a confession may be contradicted, as to any part of it, by evidence offered by the prosecution. 6. O. 48, Dept. of the Platte, 1871. « See 1 Greenl. Ev. § 233 ; U. S. v. White, 5 Cranch C, 39 ; Logan v. V. S., 144 V. S., 263, But note also citation from State v. Weesel, 30 La. An., 919, ante. 330 MILITABY LAW AND PKECEDENTS. are often placed when making confessions, of the liability to mistake on the part of the witnesses who repeat them when oral, and of the tendency of these latter to exaggerate through a zeal for conviction, — evidence of confessions, unless corroborated by other reliable evidence, is in general to be received with caution. Where, however, a confession is explicit and deliberate as well as voluntary, and, if oral, is proved by a witness or witnesses by whom it has not been misunderstood and is not misrepresented, It Is Indeed one of the strongest forms of proof known to the law." IV. Evidence Excluded fbom Considebations of Public Policy. STATE FAPEBS, PTTBLIC DOCUMENTS, &C. Under this head is to be noted — first — confidential archives and " secrets of state," pertaining to the ad- ministration of the government, the disclosure of which would be prejudicial to the public interest." Of this kind of evidence would be the papers and docu- ments belonging to the archives of the Executive Departments at Washington, containing the correspondence of public officials and agents with the Govern- ment, reports of Investigations and other official communications made, In the line of duty, by officers of the army or navy to their military or naval superiors," and records of advisory boards and courts of Inquiry." Such papers are 500 esteemed of so prvaileged a character that heads of depai-tments or others In whose legal custody they are," cannot In general be required to furnish the same, (or copies,) to be produced In court. If It be determined by them not to be for the public interest that their contents should be disclosed ; nor, if furnished, will the courts In general admit them if objected to." The courts appear to have recognized an exception to this rule only in a case of an official communication proved to have been made maliciously and without due causer' " 1 Greenl. Ev. § 214, 215 ; V. S. v. Nott, 1 McLean, 499 ; State v. Long, 1 Hayw., 524 ; Lehman v. McQueen, 65 Ala., 570 ; Whiteside V. State, 4 Cold., 175 ; G. C. M. O. 3 of 1876 ; G. O. 48, Dept. of the Platte, 1871 ; Do. 46, Dlv. of the Atlantic, 1874. " 1 Greenl. Bv. | 250 ; Digest, 543-544. " In the matter of Mason, V. S. Clrc. Ct., No. Dist. N. T., October, 1882 ; Hopper v. Field, V. S. Clrc. Ct, E. Dlst. Pa., October, 1886. '" In Home v. Bentinck, 2 Brod. & Blng., In holding that the record of a certain mili- tary court of inquiry had been properly rejected as evidence upon objection raised at the trial, the court say, (p. 163,) — " On the broad rule of public policy and convenience, these matters, secret In their natures, and involving delicate enquiry and the names of persons, stand protected." In our law, " the proceedings -of a court of inquiry may be admitted as evidence by a court-martial," in cases and under the circumstances specified In the 121st Article of war. As to the admission in evidence of records of courts-martial, see post, under " Written Testimony." »> As to the routine official papers of the War Department, not in general claimed to be privileged, of which copies for use in evidence are ordinarily furnished, see Digest, 543-4. " Home V. Ld. Bentinck, 2 Brod. & Blng., 130 ; Beatson v. Skene, 5 Hurl. & Nor., 837 ; Dawkins v. Ld. Paulet, 5 Q. B., 94 ; Dawkins v. Rokeby, 8 Id., 255 ; Dickson v. Earl of Wilton, 1 Fost. & Fin., 419 ; Gardner v. Anderson, 22 Int. Kev. Kec. 41 ; Maurice v. Worden, 54 Md., 233; 11 Opins. At. Gen., 142; 15 Id., 378, 415; Wharton, Cr. Ev. S 513 ; 1 Greenl. Bv. § 251 ; Manual, 84, § 94. Where the custodian declines to produce the paper on grounds of public policy, secondarv evidence of its contents will not in general be received by the court. Maurice v. Worden, 54 Md., 233. = See Maurice v. Worden, 54 Md., 233. This was an action for libel based upon an official endorsement made by the defendant as Superintendent of the Naval Academy, in forwarding the resignation of the plaintiff, as an assistant professor, to the Secretary of the Navy. A copy of the endorsement, furnished to the plaintiff by the Navy Depart- ment, being offered in evidence, was objected to by the defendant on the ground that the writing was a privileged communication. The Court held it " to be privileged to the extent that the occasion of making it rebuts the presumption of malice, and throws upon the plaintiff the onus of proving that it was not made from duty, but from actual malice and without reasonable and probable cause." MILITAEY LAW AND PBECEDENTS. 331 NAMES, &c., OF PERSONS EMPLOYED IN CRIMINAI, INVESTIGA- TIONS. A like consideration— that it is important to the interests of the community In connection with the due administration of penal justice, as well as to the protection of the persons themselves, that public agents or others employed in the investigation of crime should not be known— excludes testi- mony which would make public the names of such persons, or their operations or the information on which they have proceeded, except In so far as strict justice to the accused may render necessary.'" 501 Thus a military officer, directed by an authorized superior to investi- gate a case of supposed dereliction and make report, cannot properly be requiifed, as a witness before a court-martial, to disclose either the conclusions of his report, or the names of the persons from whom information was obtained by him or their statements. PBOFESSIONAX COMMUNICATIONS. Under the present head is also properly considered evidence of professional communications, that is to say declarations and statements, verbal or written, made to a legal adviser. These are protected from disclosure on grounds of public policy, and cannot be admitted in evidence if excepted to by the accused party by whom they were made." Thus if an accused, in the course of his communications to his counsel, shall have disclosed the commission of, or participation in, by him, of the criminal offence with which he is charged, the counsel cannot be interrogated or required to testify as to the same against the objection of the accused. So, a counsel, against such objection, cannot be obliged to produce or disclose the contents of papers committed to him in his official capacity by the accused.'^ It is to be remarked that the privilege of objecting to the disclosure in evidence by counsel of communications made to him professionally is personal to the client and for his benefit, and that the objection may be waived by him." 602 The rule under consideration is laid down by the authorities with reference of course to civilian legal advisers. But, in principle, it is equally applicable to the relations between the accused and military persons acting as their counsel on military trials, where professional counsel is often not attainable and resort is frequently had to the assistance of officers or soldiers in the conduct of the defence. It may be added that the privilege accorded to communications addressed to professional advisers extends only to those made by or on behalf of the client, and therefore not to such as may be made by a person other than the client or his agent." Further, it has not been attached by the common law to ^\ Oreenl. Ev. § 250; Rex v. Hardy, 24 How., S. T., 753-; Rex v. Watson, 2 Stark, 119 ; U. S. 1!. Moses, 4 Wash., C, 726 ; Manual, 85 § 97. *• In the absence of such protection, " the course of justice must stop. No man will dare to consult a professional adviser with a view to his defence or to the enforcement of his rights." • « • Without such privilege, " no person can safely come into a court either to obtain redress or to defend himself." Lord Ch. Brougham, In Bolton v. Corp. of Liverpool, 1 My. & E., 94, 95. And see Bk. of Utica v. Mersereau, 3 Barb. Ch., 528 ; Cheirae v. Reinlcker, 11 Wheaton, 280 ; Aiken v. Kilburne, 27 Maine, 252 ; 4 Opins. At. Gen., 383 ; 1 Greenl. Ev. § 237-246. " But this protection does not extend to any such communications if made in furtherance of any oriminal purpose." Manual, 85 § 99. "But he may be examined as to the fact of the existence of such papers, in order to let in secondary evidence as to their contents. So he may be called upon to prove the identity of his client, or hts handwriting. 1 Greenl. Ev. § 245 ; 4 Opins. At. Gen., 384. '•It is an implied waiver of the privilege for the party to examine his own attorney, as a witness, in regard to communlcationg professionally made to him by the party, and where he does so, the witness is bound to answer generally, on cross-examination. Crittenden ■». Strother, 2 Cranch C, 464. That the counsel may be willing to be examined does not affect the privilege of the client to object. Aiken v. Kilburne, 27 Maine, 252. " Randolph v. Qnldnick Co., 23 Fed., 278. 332 MILITABT lAW AND PBECEDENTS. comnmnleatlons made either to clergym&n or physicians. " Such, indeed, espe- daUy those made to spiritual advisers, are, in many of the States, protected from disclosure in evidence by express statutes., But there is no statute of the United States on the subject, and those of the States cannot of course affect the practice of courts-martial in this particular. III. ORAL TESTIMONY. Evidence, upon judicial investigations. Is communicated either orally or in writing. Oral testimony Is that of Witnesses testifying viva voce in court, or by Deposition out of court. The subject of Oral Testimony will be considered under the titles of : I. The Attendance of Witnesses; II. The Competency of Witnesses; III. The Examina- tion of Witnesses; IV. Testimony by Deposition; V. The Credibility and Weight of Oral Testimony. I. The Attendance of Witnesses. As has been seen in Chapter V, a Court-Martial is not authorized, either by Inherent judicial power or by express statute, to issue writs, and cannot therefore issue a writ, either of subpoena or attachment, to compel the 503 attendance of vntnesses. The authority for this purpose has been vested by law in the Judge Advocate, as follows: (1) The Army Regulations, par. 1008, provide that — "The judge advocate shall summon the necessary witnesses for the trial." (2) Sec. 1202 of the Revised Statutes enacts — "Every judge advocate of a court-martial shall have power to issue the like process to compel vntnesses to appear and testify, which courts of criminal jurisdic- tion within the State, Territory, or District where such military courts «ftoW 6e ordered to sit, ituiy lawfully issue." The whole matter, therefore, of the summoning of witnesses before courts-martial, including the service and return of the summons, as also of the Issuing, servic'e and return of process of attach- ment, belongs properly to the subject of the authority and province of the Judge Advocate, and has accordingly been considered In Chapter XIII, relating to the duties and powers of that official. II. The Competency or Witnesses. A BASE ISSUE AT MILITABT LAW. The question of the competency of a witness, or his legal capacity to be sworn and to testify, is one rarely raised in the military practice. There is no statute law which In terms makes parties Incompetent for any cause to testify as witnesses before courts^martlal. The only public statute by which a person Is made Incompetent as a witness before courts of the United States— Sec. 5392, Rev. Sts., rendering thus In- competent a party convicted of perjury under its provisions— has no applica- tion to military tribunals. In many of the States, facts which, under the old common law, were grounds of Incompetency, are now allowed to go only to the question of credibility." In case, however, of an objection to a witness as incompetent being preferred to a court-martial, the common-law rules are, in the absence of statute on the subject, to be recurred to, to see if they are » 1 Greenl. Ev. S 247, 248 ; Manual, 85 § 100. "That "mere interest" no longer atEects the competency of a witness, see Eeagan v. TI. S., 1.57 U. S., 306. MILITABY LAW AND PRECEDEBTTS. 333 applicable to the case. The principal of these rules will therefore be noticed here. INSENSIBILITY TO THE OBLIGATION OF AN OATH. This is one of the common-law grounds of incompetency," but in recent times a much more liberal view has been taken than formerly as to the quality of the Insensibility, or want of religious belief, which should be deemed to render a witness 504 incompetent to be sworn in the usual manner. To render a witness compe- tent, " it is enough," says Greenleaf," " if he has the religious sense of accountability to the Omniscient Being who is Invoked by an oath." The form of oath for witnesses prescribed by Art. 92 of our military code, concludes with the usual appeal to the Diety; and a witness who takes this oath, though he may have no positive faith, should at least have some such sense of account- ability to gualify him for taking It. But that a person Is not competent to take a judicial oath is never to be presumed," and, in view of the multiplicity of religious creeds and the freedom of religious belief recognized in this coun- try and impliedly sanctioned by the Constitution, the objection to a mature per- son offered as a witness, that he was insensible to the obligation of an oath, would have to be most clearly established to be accepted as excluding him from the stand on a military trlaL" If indeed he " objects to take an oath, or is objected to as incompetent to take an oath," " he may always be affirmed, and the objection be thus wholly avoided. In the case of a very young child, the question as to its sense of religious obligation is a more serious one, though here the proper objection would be that of deficiency of intelligence rather than of religious sensibility. Where indeed a young child, who is to be a mate- rial witness, is quite ignorant of the obUgationg of an oath, it should be in- structed beforehand, by some competent person — ^as a clergyman, as to the nature of the oath and the moral consequences of false swearing. A 505 momentary instruction at the time of the trial is not snfflcient.°° The court, in a case of doubt, wiU, by questioning the cMld, satisfy Itself whether he or she. has the requisite appreciation of the significance of an oath to make proper its administration. Where there is £in apparent lack of knowl- edge, and no opportunity for instruction has been had, the court may grant a continuance to enable such instruction to be given. These considerations are especially important on a trial for the rape of a young female child. It is to be noted that the exception under consideration, where it exists in w See 1 Starkie, Ev., 22 ; 1 Greenl. Bt. § 306. »>1 Bt. § 372. " " The law, on grounds of policy, presumes that all witnesses tendered in a court of justice are not only competent but credible." Wharton, Cr. Ev. I 358. "The weight of authority seems to be in favor of the view that the objection must be sustained by the testimony of persons other than the witness — persons who have heard his declarations, &c. ; and that the witness himself cannot be personally ques- tioned as to his religious opinions. 1 Greenl. Ev. S 370 and note; Wharton, Cr. Ev. ! 368, 362. On Gen. Swaim's Trial, a witness, objected to as Incompetent for want of religious belief, stated that he neither believed nor disbelieved in the existence of a Supreme Being was an "Agnostic." No other testimony was offered. The Court sustained the objection. In a case in G. O. 10, Dept. of the Columbia, 1871, In which an Indian witness was rejected as incompetent because insensible to the sanctity of an oath, the proceeding was disapproved for the reason that no proof of such insensibility appeared to have been offered. "Manual, 93-1. »6. C. M. 0. 10 of 1886. 334 MILITABY LAW AND PRBCBDEKTS. any degree to a witness, may in general be avoided by his making an afflrtnation in lieu of an oath "—as all witnesses are.authorized to do by our law." INFAMY. At the common law, "infamy," or the status of having been convicted of an " infamous " crime, renders a person incompetent as a witness. The term infamous crime comprehended "treason, felony, and the crimen falsi; " the latter term having reference to such offences as perjury, forgery and conspiracy and to certain frauds. An objection on the ground of infamy can be sustained only by the production of the record of conviction and judg- ment ; proof merely that the party has been subjected to the punishment is not sufficient.'" It is apparently held by the weight of authority that a record of a "foreign " judgment— as a judgment of a court of a different State— will not sustain this objection."" Whether, therefore, a conviction of a felony by any civil coutt — or any such court other than a court of the United States — could be accepted as establishing such objection before a court-martial is 506 certainly doubtful. At military law, in the absence of any statute attach- ing such a disability, the fact that an officer or soldier has been convicted of desertion or other military offence can affect In no manner his competency as a witness before a court-martial." A military case to which the common-law rule would appear most aptly to apply would be one of an officer or soldier convicted by a court-martial, in time of war, of one of the higher crimes specified in Art 58. DEFICIENCY OP XJNDEBSTANDING. The persons "held incompetent for this cause are chiefly idiots, insane persons, persons in a state of intoxication and very young children. In the words of the Manual" — "A witness is In- competent if, in the opinion of the court, he Is prevented by extreme youth, disease affecting his mind, or any other cause of the same kind, from recollecting the matter on which he Is to testify, from understanding the questions put to him, from giving rational answers to those questions, or from knowing that he ought to speak the truth." That a person is deaf and dumb does not render him incompetent, provided he has average intelligence and can communicate what he knows either In writing or by signs through an interpreter. Unless there is something in the appearance of the witness when he comes to the stand clearly indicating that he has not at the time the requisite intelligence, the onus of showing that he is incompetent from want of uilderstandlng will be upon the party objecting. The court also, especially in the case of children, may Itself properly interrogate the witness, with a view to more fully satisfying Itself as to his competency." »» Wharton, Cr. Bv. § 361. " "A requirement of an ' oath ' shall be deemed complied with by making affirmation in judicial form." Bev. Sts., Sec. 1. And see Article 92. " Persons who entertain conscientious scruples against the form of a judicial oath are allowed, when summoned as witnesses, to use the form — ' I solemnly and truly declare and affirm,' or words to like eflEect, but without importing any relaxation of the punish- ment of perjury if they give false testimony." Abbott's Law Dictionary — ^Affirm. In an affirmation, tlie invocation — " Bo help me &od / " is of course omitted. « 1 GreenL Bv. § 372, 375. " 1 Greenl. Bv. § 376 ; Wharton, Cr. Bv. § 363, note. " G. O. 48, Dept of the Platte, 1867 ; Do. 2, Dept of Dakota, 1875 ; G. C. M. O. 103, Dept of the Blast, 1870 ; Do. 44, Dept. of the Columbia, 1881 ; Do. 45, Dept. of Cal., 1883. A person is not rendered incompetent to testify as a witness before a military court by the fact that he is an enemy in arms. See Digest, 397. Officers of the Confederate army were admitted to testify upon the trials, by military commission, of the Assassins of President Lincoln, and of Capt. Henry Wirz, In 1865, whUe the etatua belli was still pending. Tage 83 | 86. " See 1 Greenl. Ev. § 367. MILITABY LAW AND PRECEDENTS. 335. The law has fixed no age at which a child may be presumed to have the requisite understanding to qualify it to be a witness : the competency of children depends more upon intelligence than age. 307 As to insane persons, the fact that they are subject to fits of derange- ment does not affect their competency, provided they are sane at the time of being called upon to testify." So a person Insane upon some particular sub- ject or subjects will not be incompetent as a witness if his delusions do not materially Impair his general intelligence." Intoxication should in general render a person only temporarily incompetent as a witness. "Witnesses put aside when drunk may be examined when sober." « WIVES OF ACCTTSED FEBSONS. The familiar general rule of the law of evidence, founded on public policy, that neither the husband nor the wife is competent aa a witness either for or against the other, though departed from in some of the States, is strictly held in the criminal courts of the United States and in courts-martial." The rule excludes all communications, whether oral or In writing." And the application of the principle extends "to all cases in which the interests of the other party are involved." " Thus the testimony of the wife of an accused will not be admissible for or against a party jointly charged with him where her testimony will be material to the merits of the question of the guilt or innocence of her husband." The general rule, however, is subject to exception in cases "where the trial is for bodily injury or violence inflicted by the husband on the wife or vice versa." " Thus, in a military case, a wife would in general properly be held com- 508 petent to testify against her husband when charged with a violation of the 61st or 62d Article of war in maltreating her under circumstances rendering his act a military ofEence." ACCTTSED FEBSOITS THEMSELVES. By the Act of Congress of March 16, 1878, c. 37, it is provided that upon criminal trials and proceedings before not only "United States courts" and " Territorial courts," but also "courts- martial and courts of inquiry," the accused " shall, at his own request, hut not otherwise,'' he a competent tvitness. And " — it is added — " his failure to make such request shall not create any presumption against him." An accused per- son thus may, at his option, take the stand as a witness, but in so doing he occupies no exceptional status,™ and becomes subject to cross-examination like « Bvans v. Hettich, 7 Wheaton, 470 ; 1 Greenl. Ev. § 365 ; Simmons § 921. « R^ina v. Hill, 5 Eng. L. & B., 547. *' Simmons § 921. "G. 0. 6, DiT. Pacific, 1887; G. C. M. O. 84, Dept. of the Platte, 1890. See the reasons for this rule as set forth by McLean, J., in Stein •». Bowman, 13 Peter.-!, 223 ; also in 1 Greenl. Ev. § 254, 334, 337. And see the more recent case of U. S. i). Jones, 32 Fed., 569. The statute of 1878 authorizing accused persons to testify, (see post,) does not affect the application of the rnle. See Digest, 750. " State V. Mathers, 64 Vt., 101. « 1 Greenl. Bv. § 335. " 1 Greenl. Ev. § 335, 407 ; Simmons § 925 ; Territory v. Paul, 2 Mont, 314. "Manual, 82 § 85. " See cases In G. C. M. O. 17 of 1871 ; G. O. 1, Dept. of Miss., 1866. M These words — "at his own request but not otherwise," ludicate the distinction be- tween our law and that of Europe, where, at courts-martial, the inquisitorial form of examination is pursued as to the accused. In G. C. M. 0. 11, Navy Dept., 1895, the Secretary of the Navy, in citing this Work, observes — " the accused should not bo obliged to testify In his own behalf, and should not be made a witness except at hia own request." " McKeone V. People, 6 Col., 346 ; G. C. M. O. 179, Dept. of Dakota, 1882. 336 MILITAIIY lAW AND PRECEDENTS. any other witness." As a witness, he cannot be permitted to state only circum- stances favorable to himself and maintain silence. as to the other facts in the case ; " nor, as it has been repeatedly held," can he read or put in an em parte " statement," sworn to, as his testimony. The same rules as to the admissibility of evidence, privilege of the witness, impeaching of his credit, &c., will apply to him as to any other witness, and the only noticeable difference between his attitude and that of other witnesses will be that he will in general 509 naturally and properly enough be exposed to a more searching cross- examination." Inasmucb as the Act of 1878 provides that the "failure" of an accused to make the request to be a witness "shall not create any presumption against him," it has been held by the U. S. Supreme Court that it was not allowable to make " comment, especially hostile comment, upon such failure " to the jury. " The minds of the jurors," it was said, " can only remain unaffected from this circumstance by excluding all reference to it." CO-ACCTJSED AND ACCOUFLICES. Except when testifying at his own Instance under the Act of 1878, above cited, a defendant in a crinrinal case is not regularly competent as a witness for or against a co-defendant unless he has been discharged from the record, — as by the entry of a notte prosequi, — or unless, having beeen accorded a separate trial, (a proceeding of rare occur- rence in the military practice,) he has been duly acquitted or convicted. In military cases where the prosecution proposes to call upon a co-accused as a witness, the entry of a nolle prosequi, though the more usual course, is not invariable: where this course is not pursued, and the witness has testified in good faith on the trial, it is in general announced In the Order in which the proceedings in the case are passed upon that he is released from arrest, and further proceedings against him are discontinued." But the mere fact that a person was an accomplice of the accused does not so identify him with the latter as to render him incompetent to testify fo;* or against him. Nor is his competency affected by the fact that he has himself been charged — separately — with the same offence. The objection is not to his competency but to his crediMUty — as will be noticed under another head." 510 OTHEK PERSONS. Neither a member of a court-martial, the judge advocate, nor the officer who is to review and pass upon the proceedings, is Incompetent to testify before. the court." It Is not desirable, however, that any of these officials should appear as witnesses, except perhaps to give evidence as to the military character or record of the accused. As has been remarked in «Wheelden v. Wilson, 44 Maine, 11 ;• Marx v. People, 63 Barb., 618; Fralich v People, 65 Id., 48 ; Clark v. State, 50 Ind., 514 ; People v. McGungill, 41 Gal., 429 ; Rea v. Missouri, 17 Wallace, 542; G. O. 8, 16, Dept. of the Platte, 1879; Do. 6, Id., 1880; G. C. M. O. 34, Dept. of Texas, 1879 ; Do. 13, Id., 1882 ; Do. 179, Dept of Dakota, 1882. "= G. C. M. O. 18, 32, Dept. of the East, 1886. "G. C. M. O. 30, Dept. of the East, 1886; Do. 9, Dept. of the Mo., 1886; Do. 49, Dept. of California, 1886 ; Do. 3, Dept. of Dakota, 1886 ; Do. 76,' Id'., 1892 ; Do. 5, Id., 1893; Do. 3, Dept. of Texas, 1886; Do. 5, Id., 1890; Do. 39, Id., 1893; Do. 6, Dept. of Arizona, 1887 ; Do. 21, 25, Id., 1888 ; Do. 4, Dept. of the Columbia, 1888. ■"See Rea v. Missouri, 17 Wallace, 542. But the cross-examination should not be extended beyond the limit observed for other witnesses. Thus where the accused took the stand to testify, and did testify, only as to the date of his confinement in arrest, it was held that it would be inquisitorial and illegitimate to cross-examine him as to other facts of the merits of the case. G. C. M. O. 29, Dept. of Dakota, 1893. " Wilson V. V. S., 149 V. S., 60, 65. And see U. S. v. Pendergast, 32 Fed., 198. " See Instances In G. O. 13, Dept. of the South, 1866 ; Do. 30, Dept. of Cal., 1865. " See " The Credibility and Weight of Oral Testimony," post ""Digest, 750-1. MILITARY LAW AND PRECEDENTS. 337 a previous Chapter," a resort to a member as a witness on the merits Is especially to be avoided." III. The Examination of Witnesses, This subject will be considered under the heads of: — 1. Direct Examination; 2. Cross-Examinatlon, 3. Re-examination, &c. ; 4. Rebuttal ; 5. The privilege of the witness as to not answering criminating, &c., questions; 6. Impeaching testimony; T. Testimony as to good character. I. DIBECT EXAMINATION. This, which is also called the " Examination-in-chief," Is the original examina- tion, by the party producing them, of the witnesses by whose testimony he seeks to maintain his side of the case. It refers mainly to that examination by which, (subject to cross-examination by the adverse party,) the prosecution or defence is opened and displayed. Jt embraces also, however, the examination of witnesses offered w rebuttal of direct testimony from the other side, — as where witnesses are introduced to meet new matter brought out in the defence, or to show that impeaching testimony is itself unworthy of credit. Premising that the direct examination of every witness properly begins in general wlHi asking his name, and, In military cases, his office, rank, corps, regiment, &c., and whether he knows or identifies the accused, — ^we proceed to ilotice certain general principles which, though in part applicable to all stages of the examination of a witness, are best Illustrated as governing the Examlna- tion-ln-chlef — as follows : SU THE EXAIVriNATIOlT SHOTTLD CONSIST OF QTTESTIONS BELE- VAJIT TO THE ISSUE. This rule, the application of which is one of the features which distinguish the direct from the cross examination, has been specifically considered under an earlier title." ALL THE TESTIMONY IS TO BE VIVA VOCE, AND TO CONSIST OF FACTS DEBIVED FBOU THE FEBSONAL KNOWLEDGE AND MEUOBT OF THE WITNESS. This principle Is Indeed one of general application, but is here nMiced because of two apparent qualifications which affect its opera- tion in the course especially of the direct examination. Memoranduxa to refresh memory. Thus, the general rule is compatible with allowing a witness to " refresh and assist " his memory by a reference to some icritmg, whicH may be either an official document or other written instrument, (original or cc^y,) a formal entry in a book, or any mere note or memorandum, written or in print. Where the writing consists of a memorandum or paper made by the witness himself, it should appear, from his testimony, to have been made at the time of the fact or transaction to which it refers, or so soon after as to afford the presumption that the memory of the witness as to such fact, &c., was fresh in making It. Where the paper is not one made by the witness, It must appear that, on inspecting It, he can speak to the facts from his own recollection; otherwise he cannot be permitted to make use of it. Nor indeed can he use it in any case, or by whomever made, unless "Chapter XII. " It may be noted here that persons of alien races, Including Indians, are competent as witnesses, equally with white persons, nativeB, or citizens, In the courts of the United States. See G. C. M. O. 54, Dlv. of the Pacific & Dept. of Cal., 1879 ; Sec. 1977 Rev. BtB. » See " Admissibility of Evidence," ante. 440593 0-42-22 338 MILITARY LAW AND PRECEDENTS. it enables or assists him to testify as of his own memory or knowledge. If, instead of serving as a refresher of memory, it is relied upon to supply facts not otherwise known to the witness, it is of course not a legitimate means 512 of reference.* It is usual and desirable, (though not essential,) that the writing be brought into court and produced by (or exhibited to) the witness upon the stand, since thus its nature and effect can be fully made to appear on the direct or cross examination." Statement of opinion or belief. The general rule, in requiring the witness to state facts within his personal knowledge, does not require that he should speak with entire certainty, but only to the best of his recollection. If his testimony, though not of an assured character, be based upon some memory of the facts, it will be admissible for what it is worth. But the rule, (except as presently to be noted,) does exclude all matters resting in the individual opinion of the witness. His opinion upon the merits of the issue, or as to the motives, intention, or conduct of the accused or others, or the effect of their acts or as to what would have been his own conduct in a particular case, or upon any general question of moral or legal obligation, is wholly inadmis- sible and should be ruled out on objection made."' 513 For a witness, however, to declare the existence or occurrence of a fact which is a matter of comTnon observation, and ip general palpable and scarcely mistakable — as the fact of drunkenness, or that the accused or other person was drunk on a certain occasion — is not properly a stat^nent of "■ U. S. V. Wood, 3 WashiEgton, 440 ; Patriotic Bk. v. Frye, 2 Cranch C, 684 ; State «. Eawls, 2 Nott & McC, 331 ; Elston v. Kennlcott, 46 Ills., 187 ; Hill ■». State, 17 Wise, 675 ; 1 Greenl. Ev. § 436-438 ; Manual, 86. It is not sufficient for the witness to swear that he made a memorandum which he believes to be true, and that he relies ilpon It without any present recollection of the facts. Lawrence v. Baiter, 5 Wend., 305. The privilege of using a paper as a memorandum to refresh the memory, does not authorize the witness to read his evidence from notes previously prepared. Maltby, 44-5. It has been held that a witness may malse use, as a refresher, of a copy of an original memorandum, provided It satisfactorily appears that the copy is a true one. Chicago, Ac., B. B. Co. r. Adler, 66 Ills., 344. In a case in G. C. M. O. 22, Dept. of the Bast, 1882, It was held that a guard booij, containing an entry of a charge of absence-withont- Icave against a soldier, not being evidence of the commission of the offence, could be used as a memorandum to refresh the memory of a witness as to the occurrence. « 1 Greenl. Bv. § 437, and notes. "See 1 Greenl. Ev. | 441; Manual, 86; O'Dowd, 7; Witnesses are not to testify as to their opinion or what they tftteft, but what they fcnow or have »een, G. C. M. 0. 64, Dept. of the East, 1872. Opinions of witnesses, who are not experts, are not ad- mUsible. G. O. 4 of 1843 ; Do. 32, Dept. of the East, 1869 ; G. C. M. O. 121, Id., 1871; G. O. 42, Dept. of the Platte, 1871 ; G. C. M. O. 17, Dept of Texas, 1873. Opinions of officers on points upon which the court is the proper judge are inadmissible. G. C. M. O. 41, Dept. of the East, 1872; Com. Willses' Trial, pp. 39, 85, 94. A witness can- not be asked his opinion of the prisoner's guilt. G. C. M. O. 21, Dept. of the Bast, 1871. Nor whether he thinks that the accused intended to desert, this being a ques- T„°° ,cL *""'*• °- ^- ^- **• '^^' ^P*- °* *-^^ E^^t- 1871; Do. 5, Id., 1891; Do. 11, In G. C. M. O. 42, (H. A.,) 1890, it was held that the court improperly admitted, against the objection of the judge advocate, certain Indorsements of commanders ex- pressing the opinion that the accused was not guilty of negligence justifying his trial. np™;»ln AfV' ^^- "l ^'''°""' ^^^2' ^^^ "■^^^'"S- ^y """"^el 'O' the accused, by frT«T IT.hf "°°'*; "t "■aorsements upon the charges referred to the court for ZL\ L^ /T °i«*«'^'"« *»« opinion of the commanding officer of the post as omprtent '" ofeence"-was held to be "irregular," buf was reaUy whX in- IiOLITABY LAW AND FEECEDENTS. 339 an opinion, but of a fact so far within the personal knowledge of the witness as to render It admissible in evidence." Exceptions — ^Facts at Issue resting on belief. There are to be noticed two excepted classes of cases, however, in which witnesses are allowed to declare their opinion or belief. The first Is where a certain matter of fact resting whoUy on belief is directly in Issue, as the fact, for example, of the identity of a person. So of the fact that a writing Is or not in the lumAwritmg of a party: here a witness familiar with the handwriting may be asked and may state his belief as to the fact in issue, without being an expert." Opinions of experts. The second class is the familiar one of cases 514 involving questions of science or questions requiring for their solution a peculiar sklU or knowledge of a specialty, in which is admitted the testimony of experts™ Thus, military officers may give evidence as experts upon issues requiring, for their proper solution, technical military knowledge ; " " People V. Eastwood, 14 N. T., 662 ; Stacy v. Portland Pub. Co., 68 Maine, 279 ; Sydleman v. Beckwith, 43 Conn., 12 ; State v. Huxford, 47 Iowa, 16 ; Digest, 395 ; O. O. 42, Dept. of the Platte, 1871 ; G. C. M. O. 2, Dept. of Texas, 1890. Witnesses, however, who testify that the accused was drunk should in general be "required to state in detail the specific facts upon which their Judgement of his condition was based." G. C. M. O. 59, DlT. Atlantic, 1888. As to drunkenness, the views of officers and non-commis- sioned oflcers are in general more reliable than those of private soldiers. G, O. 27, Dept. of the Arkansas, 1866. But the witness could not properly be asked whether the accused was so drunk as to be incapable of forming a criminal intent. Armor v. State, 63 Ala., 173. " Opinions of witnesses derived from observation are admissible when, from the nature of the subject under Investigation, no better evidence can be obtained." Brown v. Com., 14 Bush., 405. And see Hardy v, Morrill, 56 N. H., 232. In Ins'. Co. v. Lathrop, 111 V. S., 612, it is held that a non-expert may give his opinion aa to the sanity of another person, in connection with a statement of the facts and circumstances within his knowledge upon which such opinion is based. "As to proof of Handwriting by experts, &c., see " Private Writings," post. In Smith v. tr. S., 24 Ct. CI., 209, it was held that the Secretary of War was empowered to employ (and authorize a paymaster to pay) special experts to elucidate a, question of hand- writing at Issue before a court-martial. A» to the payment of extra fees to expert witnesses, see Circ. No. 13, (H. A.,) 1891. ™ See 1 Greenl. Bv. § 440. The qualifications of the expert to give evidence, as such, may be tested not only By Interrogating the witness himself as to his experience, but also, (though this means is not often resorted to,) by the testimony of other witnesses. TuUis V. Eldd, 12 Ala., 648. And not only should the character of experts, as such, be " satis- factorily established," but their testimony, to be reliable, " must be free from suspicion of interest, bias, or prejudice;" Schultz ■». TJ. S., 2 Ct. of CI., 380. In Johnson v. Root, 1 Fisher, 361, Sprague J. charges the Jury to consider. In weighing the testimony of an expert, " his ability, his knowledge of the art or profession in which he Is engaged, the fairness with which he expresses an opinion, the impartiality of that opinion, and all those considerations which go to create a confidence or a distrust of the opinion which is given. You will," he adds, " take into consideration also the reasons that may be assigned by the experts for their opinions." In Tullis v. Kidd, it was held, In regard to a medical expert, that It was not necessary that he should be in the practice of his profession, if it appeared that he had studied it as a science, and " felt confident to express a medical opinion upon a particular disease ; " the fact that he was not at the time a practicing physician going to his credibility only. But of course the weight and value of the testimony will depend mainly upon the amount of the practical experience of the witness. See Allen v. Hunter, 6 McLean, 303. 71 They cannot, however, be resorted to as experts in general upon military trials — as, for example, as experts upon questions of military law. See 6. C. M. 0. 41, Dept. of the East, 1872. In Do. 113, Id., 1871, the action of a- court-martial in calling upon the Judge Advocate of the Department to testify as an expert upon a question of law raised in the case — ^whether a member absent at the organization could subsequently come in, qualify and act — ^was properly disapproved by the Dept Commander. 340 MTLITAKY LAW AJTD PBECEDENTS. and In the military practice, as in the civil, medical men, whether or not officers of the Army, are frequently and properly called to testis as to the cause of death or disease, the effects of wounds or injuries, or the question of the sanity of an accused person, witness, &c.. Such experts, in expressing their opinions, need not found them upon any personal observation ; ™ it is sufficient if they are based upon the facts of the case as narrated by other witnesses whose testimony they have listened to, or, where they have not heard the facts detailed in 515 evidence, upon a statement of similar facts presented hypothetically by the exanrining party or counseL" But the expert cannot state his opinion " as to the general merits of the cause," but only his opinion " upon the facts proved ; " nor can he state it as to any other question in the case not Involving expert knowledge for its solution." A PABTY HAY NOT IMPEACH THE CKEDIBII.ITY Oi" HIS OWN WITNESS. This is also a general rule peculiar to the direct examination. A party, in offering a vritness, is presumed to be acquainted with his character and Is viewed as representing him as entitled to credit. He is therefore in general bound by the statements of the witness, and If such statements prove contrary to what he expected, he will not be permitted to impugn the credibility of the witness, either directly by attacking his general reputation for veracity, or indirectly by "general evidence tending to show him unworthy of 516 belief."" The party Is not Indeed precluded from putting in other testimony, as to a particular fact, which Is directly contradictory to the testimony of such witness ; " but such other testimony cannot properly be introduced in the form of a personal reflection upon the witness. Where, however, a party has been innocently misled by the witness whose statement on the stand turns out to be materially different from the one previously made, and which induced the party to introduce him, " the weight of authority," says Greenletlf, " seems in favor of admitting the party to show, that the evidence has taken him by surprise, and Is contrary to the examination of the witness prepara- " See 3 Greenl. Bv. I 5. "The following appear to Tk approved forms of interrogating the expert In this class of cases : 1. Where the expert has heard all the testimony/ in regard to the actions, indications, ia., of the accused, (or witness,) alleged to have been insd/ne. Here he may properly be asked — " Supposing the testimony which you have beard to be true, la It your opinion thereon that such person is, (or was, at the time of the offence,) insane?" It may be also asked — "What state of mind do such symptoms, Ac., Indicate?" — or " What would, in the belief of the witness, be the conduct of such a person In certain supposed circumstances." (See Com. v. Rogers, 7 Met., 506.) 2. Where the empert has not heard the testimony or has heard it only in part. Here it is the practice for the examining party or counsel to state to the witness the substance of the testimony, and then to ask, whether, supposing such testimony to te true, the person In qaestion was, (or is,) not, in the opinion of the witness, Insane, &c., as above. The hypothetical question must be based upon previous evidence in the case tending to prove the matters stated in the question. Bomgardner ». Andrews, 55 Iowa, 638. « See 1 Greenl. Ev. f 440 ; U. S. v. McGlue, 1 Curtis, 1. " Even where the medical or other professional witnesses have attended the whole trial and heard the testimony of the. other witnesses as to the facts and circumstances of the case, they are not to judge "of the credit of such witnesses or of the truth of the facts' testified by them." Com. V. Rogers, 7 Met, 505. "Greenl. Ev. § 442; Lawrence v. Baker, 5 Wend., 305; Cobker v. The Tolacca, 7 Phllad., 199. In G. O.. 4 of 1843, where thfr accused was allowed by the court to call a witness to contradict a previous witness introduced by him, and show that the latter had made a different statement from that given in his testimony, the proceedings were In this respect disapproved by the Secretary of War. And see G. C M O 71 Dent of the Platte, 1890. • • . v<- "1 Greenl. Ev. § 443; U. S. v. Watklns, 3 Cranch C, 442; Lawrence v. Baker 5 Wend., 305 ; Clapp v. Peck, 55 Iowa, 270. ' MILITAKY LAW AND PRECEDENTS. 341 tory to the trial, or to what the party had reason to believe he would testify ; or, that the witness has recently been brought under the influence of the other party, and has deceived the party calling him." LEADING QUESTIONS ABE NOT TO BE ASKED, It is a further general rule governing the direct as distinguished from the cross examination," that a " leading " form of questioning a witness may not be pursued in regard to the material facts at Issue in the case on trial." The 90th Article of war recog- nizes this rule in making it the duty of the judge advocate to " object to any leading questions to any of the witnesses," as a measure of protection to the accused. Leading questions may be said to consist mainly of three sorts, closely connected however in. their nature, as follows :— 1. Those " which 517 suggest to the witness the answer desired ; " 2. Those " which, embodying a material fact, admit of an answer by a simple negative or affirmative ; " 3. Those which, in their form, " assume facts to have been proved which have not been proved," or assume " that particular answers have been given which have not been given." " The proper and legitimate province of direct examina- tion is to elicit the precise matters of fact within the knowledge or recollection of the witness and no more, and to induce him to communicate them naturally and In his own language, without either prompting or restraint. Any direction, therefore, given to his thoughts, on the part of the Interrogator ; any suggestion as to the form or substance of his answer ; any repression of a full statement of what he has to say that is material; any deceit or dlsingenuousness concealed in the question that may tehd to shape the reply of the witness, divert" It from its intended form, or, in short, prevent or embarrass a true and honest re- sponse, — these and all similar Influences and expedients are, as a general rule. Irregular and unauthorized." Exceptions. There are recognized, however, certain excepted cases In which leading questions may not only be proper but necessary for the eliciting of the truth. 1st. 4s where the witness Is manifestly Iwstile to the party by whom he has been called, or is in the interest of the opposite party, or exhibits, for some cause, a -decided urvwillmgness or reVuotanoe to testify, or a disposi- tion to prevaricate, or is stupid, or is very young." 2d. A further exception " 1 Greenl. Bv. § 444. That a party may discredit his witness where he has been entrapped, see McDanlel v. State, 63 6a., 263. ""To allow leading questions is to give direct the character of a cross-examination." People v. Mather, 4 Wend., 247. As to the use of leading questions on the cross- examination, see po»t, " " Such a question cannot be put on main examination even to contradict another witness." D. S. v. Angell, 11 Fed., 34. But the rule does not apply to questions put in regard to prelimlnarj/ matter, not tending to prove or disprove the Issue. Gannon v. Stevens, 13 Kans., 447; 1 Greenl. Bv. § 434. "It would be mere waste of time to enforce the rule where the questions asked are simply introductory, and form no part of the real substance of the inquiry, jir where they relate to matters which though ma- terial, are not disputed. But where a qu^tion relates to a contested point, which Is either directly conclusive of the matter in Issue, or directly and proximately connected with it, the rule should nearly always be strictly enforced." Manual, 87 § 106. *> 1 Greenl. Ht. § 434 ; Manual, 87 % 106. " It Is a mistake to suppose that such only Is a leading question to which yea or no would be a conclusive answer. A question is also leading which puts into a witness' mouth the words that are to be echoed back, or plainly suggests the answer which the party wishes to get from him." Marcy, J„ in People V. Mather, 4 Wend., 247. , ^^ ^ ,' » " If It were not for this rule, a favorable and dishonest witness might be made to give any evidence that is desired." Manual, 87 § 106. „,„„.,..„„ »>1 Greenl Ev % 436; People v. Mather, ante; Moody v. Howell, 17 Pick., 498; Coon V. People, 99 Ills., 368; G. C. M. O. 18 of 1874— remarks of Gen. Teriy; Do. 14 of 1864 ; G. O. 36, Dept. of La., 1869 ; Manual, 88-9. 342 MELITAKY LAW AND PRECEDENTS. Is where the testimony of the witness is defective in that he cannot recollect or specify a certain material fact: here it may be permitted to men- 518 tlon or suggest the particular matter in regard to whicb an answer is desired." But in such a case the most approved course is first to ex- haust the recollection of the witness in asking him what was said or done, &c., in general, at the time In question. If, when he has made his statement in answer, some material circumstance is omitted, the best practice is to ask him if he has stated all that he remembers, and, upon his replying that he has, to then call his attention, by specifying it, to the particular fact, thing, or language, and inquire if it existed, wasi done, said, &a Among the more familiar occasions for pursuing this course are those where a name, a date, or an item such as an article of property— perhaps one out of many— has been forgotten; or where disrespectful or other material words spoken, the phraseology of a verbal order, &c., cannot be recalled or accurately testified to without being so specified. toiscretion of the court as to the admission of leading questions — Mili- tary cases. Whether, in any civil case, the circumstances presented consti- tute so far an exception to the general rule as properly to allow leading ques- tions to be put on the direct examination of a witness, is a matter which rests entirely in the discretion of the court, and no"t one which can be " assigned for error." " So, in a miUtary case, the Improper admission of a leading question or questions would not affect the legal validity of the proceedings, though, in an extreme instance, it might well Induce a disapproval of the same." A special form of leading interrogation, sometimes pursued in military cases but irregular and improper, may here be noticed. This consists In reading the charge and specification, or stating their substance to the witness, and 519 then asking him what he knows on the subject. This form is objection- able in that it leads the witness as to the details of the offence as charged, and suggests them to him as a given basis for his testimony, instead of leaving the same to rest solely on his personal knowledge and recollection. It has been repeatedly condemned by the authorities and in Orders." 2. CBOSS-EXAMINATION. ITS SCOPE IN GENEBAL. The direct examination of a witness being concluded, the opposite party, though he may waive it, proceeds ordinarily to avail himself of the right of cross-examination. So essential is cross-examina- tion, or the opportunity to cross-examine, to the acceptance of facts as legal »'l GreenL Ev. § 435; Manual, 88; People u. Mather, ante; Moody v. Bowell, ante. "1 Greenl. Ev. § 435; Moodj' v. Bowell, ante; Donnell v. Jones, 13 Ala., 490; Shufflin V. People, 4 Hun., 16 ; King v. Mittalberger, 50 Mo., 182. »' In 6. O. 36, nfth Mil. Dlst., 1868, it Is remarked by the reviewing officer, (Gen. Neill,) in regard to the action of the court Id admitting questions of this character, as follows : — " There appears to have been no limit to the number of leading ques- tions Improperly allowed. Thus arbitrarily to set aside the rules of evidence is unprecedented and Ulegal. A Court possesses no power to authorize the examination of a witness to be conducted in any other manner than that sanctioned by the well- established rules of law. The proceedings are disapproved." And see G O 71 Dent, of Dakota, 1870. . . , r «See McNaghten, 185; Bombay E., 28; QUchrist, 20; Q. O. 12, Dept. of the Mo 1862; Do. 36, Id., 1863; Do. 77, Dept of the East, 1870; Do. 29, Dept of Cal 1865- G. C. M. O. 54, 120, Div. of the Pacific & Dept. of Cal., 1880 ; Diqbst, 394. A sail more objectionable form is to recite the charge In terms or substance, and ask the witness directly whether the accused actually committed the specific act alleged As " Did he desert?" "Did he sell or through neglect lose his clothing, &c.r See'o O 67 Dent of the South, 1874 ; Diqbst, 394-6. ws «. u. o(, uepi. MnjTABY LAW AND PRECEDENTS. 343 testimony, Qiat all ex parte statements whatever, whether or not sworn to, are radically incompetent as evidence on the merits, and should be absolutely ex- cluded by the court, even though the party entitled to object may be willing to consent to their introduction. An ece parte statement or declaration, whether or. not in the form of an affidavit, is essentially illegitimate material upon which to base, wholly or in part, a finding by a court or an approval by a reviewing officer." The exercise of the right of cross-examination, as a test of the perception, observation, recollection and veracity of the witness, — always important to the due investigation of truth and administration of justice, — ^has become even more so than formerly ; certain classes of persons who once were excluded from the stand— including the accused himself **— being now admitted, and facts which once went to the competency now going to the credibility of the witness. In view of its purpose and significance, a much greater latitude is properly 520 allowed in the cross-examination than in the direct ; " leading questions, for example, being freely permitted ; " and matters otherwise irrelevant and collateral being allowed to be gone into to a reasonable extent, (and subject to the limitations yet to be noticed,) where properly apposite to the testing of the knowledge, memory, or animus of the witness, or to discrediting him in general." Upon the liberty, however, of cross-examination there are certain restrictions, as follows : — 1. To be confined to the matter of the direct examination. The rule is established in the U. S. courts," and commonly observed in the military 521 practice," of restricting in general the cross-examination to the subject and scope of the direct examination. Such rule tends to simplify and " See G. C. M. O. 5, Dept. of Texas, 1890 ; Do. 5, 11, Dept. of Dakota, 1893 ; Do. 50, Navy Department, 1893. " See "Aecused Persons Themselves," and notes, ante. " It is however always within the discretion of the court to confine a. cross-examina- tion within reasonable limits — to stop it when unreasonably protracted. Beed v, Clark, 47 Cal., 194. Under the license of cross-examination a party cannot be permitted to bully or insult a witness, i)articularly when the latter Is an official superior to whom he owes deference and respect. See remarks of Qen. Terry in G. C. M. O. 134, Dept of Dakota, 1884. •"The right to employ leading questions on the cross-examination is subject to a pos- sible limitation, in the discretion of the court, " where the witness shows a strong interest or bias in favor of the cross-examining party, and needs only an intimation to say whatever Is most favorable to that party." Moody v. Bowell, 17 Pick., 498. And see G. C. M. O. 18 of 1874 — ^remarks of Gen. Terry. M " Everything which goes to affect the credit of a witness as to the particular facts to which he is called to testify Is material and admissible." Com. v. Hunt, 4 Gray, 423. See the point, that questions as to the motives or animus of the witness are permissible on the cross-examination, recognized in G. C. M; O. 7 of 1873 ; Do. 8, Fourth Mil. Dist., 1867; Do. 23, Dept. of Texas, 1873; G. O. 11, Dept. of Cal., 1865; Do. 8, Dlv. of the Atlantic, 1875. That the question, whether the witness has not previously expressed hostility toward the accused, is not ah irrelevant one on cross-examination, see post. In G. C. M. O. 24 of 1872, It was held that a witness, who had testified that the accused was drunk^ might be asked, to test his powers of perception at the time, whether he was then himself sober. And see a similar case in G. O. 48, Dept. of the South, 1869, cited post. In G. C. M. O. Dlv. Atlantic, 1889, it was held admissible for the accused, on cross-examination, to interrogate a witness as to his sobriety at the time of the offence charged, the question directly affecting his credibility. MR. E. Co. V. Stimpson, 14 Peters, 461; Houghton v. Jones, 1 Wallace, 702; Rea v. Missouri, 17 Id., 542. "Simmons § 604; G. O. 85, Dept. of the Cumberland, 1867; G. C. M. O. 18, Dept. of the Columbia, 1880. But a party has the same right to cross-examine a witness as to matter brought out, on the direct examination, by questions addressed ly the court, as be has in regard to matter brought out by the opposite party. G. C. M. O. 48, Dlv. of the Pacific & Dept. of Cal., 1880. 344 MILITAKY LAW AND PRBCBDBNTS. confine within reasonable limits the investigation of a criminal trial, and is peculiarly adapted to the purposes of a court-martial as an instrument of prompt and efficient justice. In consequence of tills rule, if the adverse party wishes to examine the witness as to matters not embraced within the scope of the direct examination, he should, as observed by Judge Story, " do so by making the witness his own, and calling him as such, in the subsequent progress of the cause." " This rule indeed may be allowed to be departed from in the discretion of the court ; " and it is to be understood that it has referwice mainly to facts pertaining to the issue and material to the prosecution or defence, and does not apply to questions outside of the main subject at Issue and aisked for the purpose of testing the motives, prejudice, or credit of the witness. 2. Not to be extended to collateral matters with a view to contradict tbe witness — ^Previous statements and expressions. It is an established rule of the law of evidence, repeatedly recognized in military cases," that a party cannot be permitted to cross-examine a witness as to any " collateral, inde- pendent fact, irrelevant to the main Issue," for the purpose of laying a founda- tion for subsequently contradicting him by other evidence and thus discrediting him; but that the answers of the witness to all such collateral interrogation are to be taken as conclusive against the cross-examining party. 522 But a question whether the witness has not at some previous time told a different story, or given a different account of the matter testified to on his direct examination, is not collateral or Irrelevant; nor Is a question whether the witness has not previously expressed hostility toward the accused." And questions of either kind, being relevant, may be asked the witness on cross-examination, with a view of contradicting him by other evidence, in the event of his returning a negative answer." The form of the cross-examination In such cases will be further referred to under the head of " Impeaching Testi- mony." 3. BE-EXAMINATION, &C. ITS SCOPS. Where the witness, in the course of the cross-examination to which he has been subjected, has made statements not in harmony with those made upon the examination in chief, or statements of a doubtful or equivocal "E. E. Co. V. StlmpBon, ante. Matters of defence are not in general properly proved by cross-examination. Dennis v. Van Voy, 2 Vroom, 38. A party who has not yet opened his own case cannot in general properly do so by a cross-examination of his adversary's witnesses. Thornton .i;. Hook, 38 Cal., 223. " See Eea i>. Missouri, 17 Wallace, 542. "> Simmons § 975 ; Lieut Hyder's Trial, 157 ; Lieut. CoL Fremont's Trial, 256. And see the case of 1st Sgt. Clerc, In G. C. M. O. 45, Dept of Cal., 1883, in which It la remarked by the reviewing authority, (Gen. Schofleld.) as follows :— " The defence was permitted to ask a witness for the prosecution, on cross-examination, collateral and Irrelevant questions, viz. : whether he had ever been tried or sentenced for desertion, with a view to contradicting him, (on his answering in the negative,) by subsequent testimony in chief, which also was allowed to be introduced against the objection of the Judge advocate. In permitting this to be done, the Court disregarded one of the funda- mental rules of the taw of evidence, and its action is disapproved " rZ^ ^f't^f'J/' * ^*®'^^"^ ,T^"* *''^* questions may be asked notwithstanding the rank of the witness, see G. C. M. O. 66, (H. A.,) 1879 ; G. O. 11. Dept of Cal 1865 • G C. M. O 31. Dept of Dakota. 1869; Do. 8. Fourth MU. Dist. ^86^ In iS. 18 mV Atlantic, 1886 the court was held to have been in error in refusing to the defence^n opportunity of showi.^ that a certain witness had expressed feelings of hostUity against the accused, after such witness, on cross examination, had denied it "Samsi «See the principle recognized in military cases, as to the expr^sing of hostility by the witness, in G. C. M. 0. 8, Fourth Mil. Dist., 1867; G. O. 11 Dent of Cal 1865^ ^tnl'^I-G^C^'MT^O^f^llr^ 'V """^'"^ °* S«ert??.^temeSs'brth; Cri8V%fG%''3i°D'eVo/rk'tri8'69.'^""''*' ^"- ^'^'- '"''-' ""• ''• ^^*- "^ MTLITARY LAW ANt) PRECEDENTS. 345 character, an occasion is presented for Ms re-examination, (or as It Is some- times called, "examination in reply,") by the party who originally called him, for the purpose of eliciting from him an expUmation of such statements, as also (If desired) of his moti/oes In making the same. But this is, strictly, the full scope of a re-examlnatlon, which cannot in general extend to the bring- ing out of new matter," and hence the desirableness of exhausting a witness as far as possible on the original examination."" 523 Where, however, upon the cross-examination, the opposite party has been allowed to go into matters not testified to upon the direct examina- tion, the other party will become entitled to re-examine as to the subjects of the testimony thus Introduced. 4. EEBtJTTAL. New evidence introduced on the defence, or otherwise, may always be re- butted by the opposite party. Rebutting evidence is direct evidence, and the same rules apply to it as to the direct examination. It should be noted that mere cumulative evidence, or evidence repeating facts already introduced at a pre- vious stage, is not, in general, properly admitted by way of rebuttal. Exceptions to course of examination. As to the authority of the court, in its discretion, to allow a party to recaU a witness, once dismissed, for fur- ther examination as to a material point inadvertently omitted to be Inquired into, or a pOint since brought to the attention of the party, or for further cross- examination where the regular cross-examination has been closed ; or to allow a witness to be further examined, or new witnesses to be introduced by a party, after he has rested his side of the case, or both sides of the case have been closed,— remark has been made in Chapter XVII, in considering the course of proceeding on the trial.* Examination by the court. In the same chapter is also noticed the sub- ject of the extent of the authority of the qowt to examine the witnesses, and of the practice as to the form and occasion of such examination.' 6. THE PBIVILEGE OF THE WITNESS AS TO NOT ANSWERING CRIMINATING, &C., (JTTESTtONS. With the subject X)f cross-examination is connected that of the privilege 524 of the witness to decline to answer certain classes of questions which more usually come to be asked at that stage of the examination. QUESTIONS THE ANSWER TO WHICH MAT CRIMINATE. It is an established principle of the common law, recognized indeed and affirmed In the U S. Constitution," that a witness— whether the accused on the stand, or other witness— may refuse a nd cannot be required to answer a question the » Spp 1 Greenl Bv i 467. " On the re-examlnatlon no questlona can be put which do not rdaLTmatters ingulred into on the cross^mination." Button .. Woodman, ® ^""O'n^th; examination in chief,- the party calling a witness is bound at his peril to mterro^te hta as to all material matters in the first Instance; and if any material to '"^"""P'^® "™ "° ™ . ^ t upon the examination in reply." Sartorlous v. S!°24 MiX":^. VurTile^MsVt^ strict rule, the court may, in its discretion, make exceptions in the interests of Justice. ' See ante. pp. 285-286. l^T^!:^^Lli be compelled in any criminal case to he a witness against him- self." Art. V of the Amendments. 346 MILITARY LAW AND FRECEDENTS answer to which may tend to criminate •blm ; or, as it is expressed by Green- leaf,* " have a tendency to expose him to a penal liability, or to any kind of punishment, or to a criminal charge ;" or even. In the language of Chief Justice Marshall," form a link in the "chain of testimony which is necessary to con- vict an individual of a crime." The privilege is held to be one personal to the witness, which "le may avail himself of or not as he sees fit,' and 525 it is furtaier held that It ia the duty of the court, if the witness decUnes or hesitates to answer, to determine whether the question has the sup- posed drift and instruct him as to the exercise of the privilege.' Where Indeed he positively refuses to answer, such refusal is conclusive and the question cannot be put. In Burr's Trial' it isi observed by the court — "If in such case he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact." Where, however, in a military case, the answer will clearly not be criminating, the court will properly so advise the witness, and he will then properly answer, though he cannot be required to do so.* In the exercise of this privilege the law protects the witness from unfavor- able presumptions; for if it be exercised, no legal inference as to the truth of the matter which was the subject of the Inquiry is permitted to be drawn." The privilege cannot, of course, be claimed where the criminal liability has ceased ; — as where the witness has been finally tried for the offence referred to in the question ; " or prosecution for the same has been barred by the statute of limitations." Nor can It be claimed on the cross examination where the • 1 Bvidence § 451. And see Manual, 84 ; also Counselman o. Hltcbcock, 142 U. S., B97, wbere It Is held that Sec. 860, K. S., (applicable Indeed only to civil, not to military, courts of the United States,) does not abridge this privilege. • 1 Burr's Trial, 244. • In a ease in G. O. 48, Dept. of the South, 1869, where the question — " Were you under the influence of liquor at this time?" addressed to a witness, was objected to by a member on the ground that the answer might criminate, and ruled out by the court, the Reviewing OflBcer, (Qen. Terry,) In disapproving this action, remarks : — " The ques- tion was one of undoubted propriety and competency, as tending to show the weight or degree of credibility to bfe attached to the testimony of the witness. It in no wise tended to implicate him in the commission of any otFence, military or civil, nor could the answer in any manner, direct or indirect, tend to degrade his character. Moreover, ques- tions of the character indicated, are not subject to objection by a member of the court, the Judge advocate, or by the accused. The right to answer or not as he pleases, te the prwilege of the witness, and concerns neither the court nor any of its members. This privilege may be waived or asserted in the witness' discretion ; and the duty of the court is fulfilled when it Informs him of his right and leaves him free to exercise his dis- cretion iu the premises." In a later case it was ruled — "The privilege belongs ex- clusively to the witness, who may take advantage of it or not at his pleasure ;" • » • he " may waive it and testify in spite of any objection coming from " a party to the proceeding. * • * "If ordered to testify In a case where he is privileged, it is a matter exclusively between the court and the witness. The latter may stand out and be committed for contempt, or he may submit ; but a party has no right to interfere or complain of the error." So held that the fact that a court-martial erroneously required a witness, who claimed the privilege, to answer, did not prejudice the legal rights of the accused, or call for a disapproval of the proceedings as invalid. Pplnion of Attorney General, of Oct 27, 1883, in case of Cadet Hackett. (17 Opins., 616.) ' 1 Greenl. Ev. § 451 ; Com. v. Shaw, 4 Gush., 594. « Vol. 1, p. 244. •See Hackett's Case, 17 Opins. At. Gen., 616, ante. It need hardly be remarked thac a court-martial would not be empowered to commit or punish for contempt a witness re- fusing to answer under these circumstances. See Chapter XVII — " Contempts." " 1 .Greenl. Bv. § 451, and cases cited in note. " See G. 0. 29, Army of the Potomac, 1864. ^ Roberts v. Allatt, 1 Mood. & Malk., 192 ; U. S. -. Smith, 4 Day, 123 : People V Mather, 4 Wend., 255. MILITAKY LAW AND PRECEDENTS. 347 Witness has voluntarily testified witliout objection as to the subject of the question on the examination-ln-chief." 526 In military cases the principle has, properly, been recognized where the answer to the question might subject the witness either to a miUtary or a civil prosecution." OTHEB QXTESTIONS. The privilege under consideration cannot be asserted where the question is such that the answer will merely subject the witness to a civil action or a pecuniary liability;" nor can it be asserted though the answer, (while not criminating,) will tend directly to degrade or disgrace the witness," unless indeed the question relate to some matter wholly collateral and Irrelevant to the issue." If Indeed the question, (having the tendency to disgrace the witness,) refer to a fact which can properly be proved only by documentary evidence, — as the fact of a criminal conviction, or of an Im- prlsonmait or other ignominious punishment as the result of a conviction,— it is not competent, for the special reason that such fact can legally be estab- lished only by the record." There is also another Important limitation to the asking of questions that may disgrace the witness— viz. that they must be questions which, relating to comparatively recent transactions, go to bis-present credit as a veracious and reliable person: if they do not directly affect his credit as a witness, they are not properly admissible." 6. IMFBACHINO TBSTEMONT. The credit of a witness who has been examined In chief is subject to be Impeached, not only by counter evidence from the other side as well as by facts brought out In his cross-examination, but also by testimony bearing directly upon his personal veradty. This, which is that commonly intended by the term " impeaching testimony," is either particular or general, being 527 (1) testimony that the witness has made specific statements, (oral or written,) out of court contrary to what he has testified on the stand; or (2) testimony attacking his general reputation as a truthful person. TESTIMONY AS TO CONTBADICJTORY STATEMENTS OF THE WIT- NESS. Such testimony is competent only in respect to matters which are relevant and material to the charge. To properly prepare the way for such testimony, the established procedure is, first to ask the witness, on the cross- examination, not In general terms whether he has not made a different state- ment, or different statements, but whether he did not on a certain occasion make a certain diverse statement, (specifying it,) to a certain person named: this, in order that he may better remember what he has said on the subject out "People 1). Freshour, 55 Cal., 375. Nor does the protection extend to the case of an occonipJice voluntarily testifying for the prosecution. That the accused, when on the stand as a witness, cannot claim the privUsge aa to the offence for wMoh he is on trial— see Wharton, Cr. Bv. § 432. „„„ „ » Lieut. Kennon's Trial, p. 29, 41, 43 ; G. O. 48, Dept. of the South, 1869. See also Capt Barron's Trial, p. 84, 98, where the rule was applied to a case of a witness who was actually under charges growing out of the same transaction, (as that which had given rise to the charge against the accused,) and was soon to be tried. « 1 Oreenl. Bv. § 452 ; Manual, 95 ; Story, 71. "1 Greenl. Bv. § 454. " 1 Greenl. Ev. § 455 ; U. S. v. White, 5 Cranch C, 73. ^ 1 Greenl Bv § 457 "l Greenl'. Bv. § 458, 459; TJ. S. v. Van Sickle, 2 McLean, 219; Davis v. Forrest, 2 Cranch C, 23 ; U. S. v. Masters, 4 Id., 479. 348 MILITABY LAW AND PBECEDENTS. of court, and be afforded an opportunity to correct or explain his testimony as given — a practice clearly in the Interest of truth and Justice* This rule has been recognized in military cases.** Where the previous statement of the 528 witness was in writing, and contained in a letter or other paper, it is not considered competent to ask him whether he has written a certain thing, stating its substance or character ; the proper practice is to put the paper into bis hands, or at least to exhibit to him the material portion of it, and to then ask him whether or not he wrote it."* That the party calling the witness cannot confirm his original statement, (after it has been Impeached by evidence of his having made a different one,) by showing that he has at other times made statements to the same effect as that originally given under oath — appears to be established by the weight of authority.'' TESTIMONY IMFEACHINO THE OENEKAIi BEPTTTATION X'OB TSTTTH OF THE WITNESS. This is the most familiar form of atta,cklng the credit of witnesses; a party being always permitted to Impeach the testimony of a witness to the merits, introduced by the adverse party, by evidence im- pugning his character for veracity." But this evidence must be general — must relate to the general reputation of the witness as a truthful person, at the time of his testlfyhig ; " for, as it is well settled, evidence of par- ticular deceits, falsehoods, false conduct, &c., of the witness is wholly inad- »Thla "Is an elementary principle of the law of evidence. • • • In no other way can a foundation be laid for putting in the impea'ching testimony." R. R. Co. v. Artery, 137 U. S., 519. And see Marks v. Fox, 18 Fed., 713 ; The Queen's Case, 2 Brod. A Bing., 318; 1 Greenl. Bv. § 462. In Conrad v. Griffey, 16 Howard, 46, McLean, J., says :: — " This rule Is founded upon common sense, and is essential to protect the chai'acter of a witness. His memory Is refreshed by the necessary Inquiries, which enable him to explain the statements referred to, and show they were made under a mistake, or that there was no discrepancy between them and his testimony." And see McKlnney v. Nell, 1 McLean, 540 ; U. S. Dickinson, 2 Id.,. 325. In the latter case it was held that It 18 not proper to call. In the first Instance^ (mother witness, and ask Mm If the witness Intended to be Impeached has not made a contradictory statement. The latter must first be asked on the cross-examination, whether he has not made such prerlous statement, and If he replies In the negative, the impeaching witness may sub- sequently be called and interrogated as to the fact. And see G. C. M. O. 8, Dept of Cal., 1891. It is to be noticed that the species of evidence under consideration is admitted for purposes of Impeachment purely, not for proof of the previous statements. Thus in The Elvira, Gilpin, 60, the Court hold that— "A previous and contradictory statement of a witness may be given in evidence to Impeach his credit, but not as proof of the facts formerly stated." Or, in other words, (p. 61,)—" You cannot substitute the other account In place of that which you have discredited, making it thus the evidence of the cause." •i See 6. O. 31, Dept. of Dakota, 1869 ; G. C. M. O. 18, Div. Atlantic, 1886 : Do 8 Dept. of Cal., 1891; Do. l,^Dept. of Texas, 1891. "» See 1 Greenl. Er. § 463, 465 ; Murphy v. May, 9 Bush, 33. In G C M O 40 of 1880, the credibility of a witness was held properly impeached by the production of the record of a court of Inquiry containing a different statement made by him as a witness under oath. «— »,. « «See Elllcott v. Pearl, 10 Peters, 439, remarks of Story J.; Ware v. Ware 8 Greenl NLfs^rMiTekisr- '''■' "^-'^ "• °--»- *« ^'' ^- ^--- - ^^ - wirntrs.Thfrtor Cr.T'^S *'33.^''"' "" " "'^""^ ""^^ "^ '•""^"'^'^ "''^ -^ <•*"« -People t,. Hajrnes, 88 How. Pr., 869. The object of the testimony is to ascertain the reputation for veracity of the witness at the time of the trial, but it may extend over a reasonable time previous, and to different pla^s when the domfcU of tSt witness has been changed. Hamilton v. People, 29 Mich 178 MILITABY LAW AND PRECEDENTS. 349 529 mlssible." The impeaching witnesses are not called to communicate their personal knowledge in regard to his speaking or not speaking the truth," or their own estimate or opinion of him as a veracious person or the reverse," or knowledge of his general personal character, but his reputation or character for truth among his acquaintance or those conversant with him." And thisr— what his reputation is — they must know of their own knowledge ; " it is not sufficient for* them to state what they have heard others say as to such reputation.*' And ordinarily the impeaching witnesses should properly themselves come from the neighborhood, place of residence, military station, &c., of the witness, though it is not necessary that they should have a personal acquaintance^ with him.**. 530 Procedure. The most approved form of the direct examination of an impeaching witness is simply to ask him if he knows the general reputa- tion of the adverse witness for veracity," and, if he answers in the affirmative, to ask him further to state what that reputation is.** In the English and in some of the American courts the practice has been to allow the further question, whether, knovTlng such reputation, he would believe the adverse witness under oath. But this question, though sometimes permitted to be asked upon military trials, is one which .seems not to be encouraged by the weight of authority in « « rj^g examination must be confined to his general reputation, and not be permitted as to particular facts ; for every man is supposed to be capable of supporting tbe one, but it is not likely that he should be prepared to answer the other without notice." 1 Greenl. Ev. § 461. And see Teese v. Huntingdon, 23 Howard, 2 ; Wike «. Lightner, 11 Sergt. & Rawle, 198 ; Wilson v. State, 16 Ind., 392 ; Taylor v. Com., 3 Bush., 508 ; Lieut. Hyder's Trial ; 157 ; G. C. M. 0. 25, Dept. of the Colorado, 1894. Nor — according to the weight of authority in this country — is it admissible to inquire, either as to the moral character of the witness generally, or as to particular immoral or criminal acts on his part. Teese v. Huntingdon, cmte; V. S. v. Vansickle, 2 McLean, 219. Thus it has been held that it cannot be asked, for the purpose of impeaching a female witness, whether she was not a prostitute. Spears v. Forrest, 15 Vf., 435; Com. c. Churchill, 11 Met., 538; TJ. S. v. Dickinson, 2 McLean, 329. So, evidence that he was a deserter from the army has been held not to be admissible to impeach the character for veracity of a witness in a criminal court. Foley i). People, 22 Mich., 227. That " proof of a conviction or sentence for desertion, or other military crime," does not " affect the credibility of a witness by Impeaching his veracity " — see G. C. M. O. 45, Dept. of Cal., 1883. " People V. Methvin, 53 Cal., 68. »Eimmel v. Kimmel, 3 Sergt. & Bawle, 886. "The court erred in admitting" im- peaching testimony "based upon the individual opinion of the witness derived from speciflc acts of the accused, and not upon his general reputation for truth and veracity." Gen. McCook, G. C. M. O. 28, Dept. of Arizona, 1892. "Douglass V. Tousey, 2 Wend., 354; Teese v. Huntingdon, ante; Kimmel v. Kimmel, ante; Wike v. Lightner, OMte; G. C. M. O. 128, Dept. of Dakota, 1882. » " That knowledge of character which Is gained from report cannot be considered as aeconaary, for report constitutes character." Gibson J. In Kimmel v. Kimmel, ante. And see G. C. M. O. 44, Dept. of the Platte, 1892. » Kimmel ■». Kimmel, ante; Vernon v. Tuoker, 30 Md., 456. Such evidence would be mere hearsay. Douglass v. tousey, ante. "Kimmel v. Kimmel, ante. "There is danger from the proneness so often observ- able in witnesses to substitute their own opinion for that of the public, whose judgment cannot be so readily warped by prejudice or feeling as that of an individual ; and hence the policy of not requiring any intimate degree of knowledge respecting the person himself, or of bringing thfe witness too close to the scene." Id. (Gibson J.) ""General reputation for veradtv," (or "truth." or "truth and veracity ;") not " general reputation "—without qualification. Wilson v. Young, 31 Wise, 574. " Eepu- tation " Is a better word than " character." Knode v. Williamson, 17 Wallace, 586. « Or the two questions may be consolidated—" Do you know his general reputation for veracity, and If so what is It?" 350 MILITAEY LAW AND PRECEDENTS. this country," inasmuch as it calls for the individual estimate of the witness— a thing to be avoided in this proceeding— and invites an answer liable to be in- fluenced by personal hostility or prejudice." The impeaching witness having given unfavorable testimony, remains subjeSt to be cross-examined by the other party as to the means and sources of his knowledge. He is generally called upon to specify the particular individuals whom he has heard speak unfavorably of the truthfulness of the witness at- tempted to be impeached, and may be interrogated as to the grounds upon which they based their opinions." The adverse party may in turn impeach the Im- peaching witnesses, or— as is of tener done— he may support the general character for veracity of his own original witness by testimony showing it to be good." 531 7. TESTIMONT AS TO GOOD CHABACTEE. ADMISSIBILITY OF IN DEFENCE, ON CBIMINAL PROSEOUTIONS. It may be regarded as settled law that evidence of good general character, as possessed prior to the commission of the alleged offence," may be introduced by the accused as part of his defence, provided the character shown is of such a nature that it may properly weight with the jury in determining the issue in- volved in the case. Whether the evidence be deemed admissible as pertinent to the question of criminal intent," or as sustaining the original presumption of innocence," or as a fact going to show that it is unlikely that the accused could have committed the crime and thus contributing to a reasonable doubt upon the whole case," — it is in general admitted if it be in any degree apposite to the species of criminality charged. Thus while a general reputation as a moral well-conducted person and law-abiding citizen would be admissible in evidence upon criminal trials in general, a character for peaceableness would not be apposite to the defence in a case of larceny, though it might be en- tirely apposite under an indictment for violent homicide." Evidence as to character is sometimes referred to as especially significant in doubtful cases ; " but, where otherwise admissible, neither the nature of the "■See 1 Greenl. Bv. S 461 ; Teese v. Huntingdon, antej Phillips v. Kingsfleld, 19 Maine, 375 ; People v. Methvln, 53 Cal., 68 ; People v. Ramirez, 56 Cal., 533. " See Phillips v. Kingsfleld, ante. " " On the cross-examination, the inquiry may extend to the witness' opportunity lor knowing tBe character of the other witness, lor how long a time and how generally the unfavorable reports have prevailed and from what persons he has heard them." Phillips ■u. Kingsfleld, ante. The impeaching witness may be asked, on cross-examination, not only the names of the persons whose statements have made up the general reputation to which he has testified, but wTiat they said. Annis v. People, 13 Mich., 11. And see Bates V. Barber, 4 Cush., 107 ; 1 Greenl. Ev. § 461. M See 1 Greenl. Ev. § 461 ; Manual, 90. In Bunnell v. Butler, 23 Conn., 65, It is held that the court " may, in its discretion, limit the number of impeaching witnesses," and that " the proper exercise of such discretion is no ground of error." And In this case the number was limited to «i.T on each side. In People v. Murray, 41 Cal., 66, it was held not error to have limited the Impeaching witnesses to eight. =• Evidence of good character sustained after the commission of the offence Is of course not admissible. Graham v. State, 29 Texas, Ap. 31. «.l Greenl. Ev. § 54, note ; 3 Id. § 26. « 1 Bishop, C. P. S 1112 ; Manual, 64. " See Wharton, Cr. Ev. § 57. It is deemed to have more force where the proof is cir- cumstantial than where It is direct and positive. U. S. v. Babcock, 3 Dillon, 620. « See 2 Russell, 784 ; 1 Greenl. Ev. 8 55 ; 3 Id. § 25 ; Wharton, Cr. Ev. § 60 ; 1 Bishop, C. P. 8 1113 ; Cathcart v. Com., 37 Pa. St., 108. In People v. Garbutt, 17 Mich., 9, a case of homicide, evidence that the accused, when In the army, was reputed a good and brave soldier was held inadmissible. " See U. S. V. Means, 42 Fed., 599. MDLITABY lAW AND PRECEDENTS. 351 offence nor of the proof on the merits can properly affect Its compe- 532 tency." It wlU possess Uttle or no weight, however, when the guilt of the accused is plainly shown by the testimony." Where offered, It must be evidence of general character or reputation:" particular acts of good conduct are not admissible." This testimony is admitted, subject, like any other, to cross-examination." It may also be rebutted by evidence of bad character; but such evidence can- not Include particular acts or conduct, but must be aa general as that to which Jt replies." It is settled law, however, that the general character of the accused cannot be attacked until he has himself first introduced evidence to sustain it, or— In the language of Wharton "—" unless the defendant puts his character in issue, the prosecution cannot call witnesses to impeach It." It is also well settled that the fact that the accused offers, in his defence, no evidence in support of his general character, can furnish in law no un- favorable influence or Impression against him — can afford no presumption, however weak, either "that he is guilty of the offence charged, or that his character is bad." " 533 In military cases. At military law, evidence of character, which is always admissible," is comparatively seldom offered strictly or exclusively in defence; but, when introduced, is usually Intended partly or principally, as in mitigation of the punishment which may follow upon conviction. With this view it is presented not only in connection with £^ plea of "guilty," but as a precautionary measure where the plea is " not guilty," and both where the sentence is discretionary and where it is mandatory. Thus offered, it is not subject to the rules which restrain the scope and quality of such testimony when defensive merely. It need have no reference to the nature of the charge, but may exhibit the reputation or record of the accused In the service, for efficiency, fidelity, subordination, temperance, courage, or any of the traits or habits that go to make the good officer or soldier. It also need not be limited to general character, but may include particular acts of good conduct, bravery, &c. It « Wharton, Cr. Bt. 8 66; 1 Bishop, C. P. § 1115. " U. S. V. Jackson, 29 Fed., 503 ; U. S. v. Jones, 31 Fed., 718. " " In view of the fact that ' the best character Is generally that which is the least talked ahout,' the courts have found it necessary to permit witnesses to give negative evidence on the subject, and to state that they ' never heard anything against ' the character of the person on whose behalf they have been called." Wharton, Cr. Ev. | 58. "Wharton, Cr. Bv. 8 60; 1 Bishop, C. P. § 1117. " In a case in G. C. M. O. 66 of 1875, a witness for the defence, having testified that the character of the accused was good, was asked, on cross-examination, by the Judge advocate — " Whom have you heard give the accused a good character? " To this question an objection was made, and was sustained by the court. Ueli by the Secretary of War that the objection " should have been overruled." " " Particular good or bad acts • • • • cannot be shown in proof or rebuttal of good character." 1 Bishop, C. P. I 1117. « Cr. Bv. 8 64. And see this principle recognized in G. 0. 112, Dept. of the Mo., 1863 ; Do. 11, Dept. of the Susquehanna, 1864 ; Do. 65, Div. of the Atlantic, 1864 ; Do. 29, Ist Mil. Dist., 1867 ; Do. 40, Dept. of the South, 1870 ; Do. 52, Dept. of the Platte, 1871 ; G. C. M. O. 58, Dept. of Texas, 1872 ; Do. 10, Id., 1882 ; Do. 20, Dept. of the Mo., 1890. «■ Wharton, Cr. Ev. 8 62. And see 1 Bishop, C. P. 8 1119; People v. Bodlne, 1 Denlo, 282. "While In the American and the British military practice evidence of character and record is introduced by the accused, in the French the Government puts in the military history, (Uat dea eervieea,) of the accused at the beginning of every trial. See, for example, Le ProcSs Bazaine, Moniteur edition, Paris, 1873, page 3. 352 ivrrTJTABY law and precedents. may also be either oral or written ; consistUtg, If the latter, of testimonials from superior officers, recommendations for promotion, honorable mention in orders, awards of medals of honor, certificates of merit, warrants as non-commissioned officers, honorable discharges, &c., of which the originals or copies should be appended to the record of triaL Such evidence, in the event of conviction, may avail to lessen the measure of punishment if the same be discretionary with the court ; if mandatory it may form the basis of a recommendation by the members and a mitigation or pardon by the reviewing officer. So much a matter of course is the admissibility of evidence of good character on a military trial, that, where the same exists, the accused should be allowed all reasonable facili- ties for obtaining it : where it can not be procured without too considerable a delay or other embarrassment to the service, the fact of its existence and its substance will in general properly be formally admitted of record, by the prose- cuUon. Rebutting evidence of bad character, in military cases, may be of similar form and nature to the evidence introduced of good character." 534 IV. Testimony bt Deposition. ABTICLE 91. The written military law in regard to Depositions Is com- prised in the present 91st Article of war — originally s. 27, c. 75, Act of March 3, 1863 — as follows : " The depositions of witnesses residing beyond the limits of the State, Territory, or district in which any military court may 6e ordered to sit, if taken on reasonable notice to the opposite party and duVy authenticated, may be read in evidence before such court in cases not capital." The effect of this statute Is deemed to be, not merely to indicate when depositions shall be admissible as evidence, but to entitle parties, In cases within the Article, to have depositions "read in evidence." If, therefore, the deposition be In proper form, and material as testimony, the court cannot refuse to receive and consider It. In all cases except where a question of Identity Is at Issue, depositions of distant witnesses may In general well be substituted for personal testimony. COBrSTBTXCTION OF THE AUTICLE. — " The depositions of Witnesses." In the earlier provision on this subject— Art. 74 of the code of 1806— the term "witnesses" was qualified by the words, "not in the line or staff of the army," and practically included civiUans only." The present Article, con- taining no such qualification, is held to authorize the admission in evidence of depositions of military as well as dvll persons, and such has been Its con- struction In practice. When officers or soldiers are stationed at remote points where their services cannot well be dispensed vrith, their evidence is com- monly obtained by deposition; and this course is also in general pursued where the testimony of officials at Washington, (as chiefs of the staff corps ) is required at distant trials. 535 "Besiding beyond the limits of the State," &c. The Article in providing for the admission of depositions t aken under certain specified "See G. C. M. O. 88, (H. A.,) 1886. " It Is remarked on Gen. Pillow's Court of Inaulrv n 17S thot ^-i.. „ „ . • , It mlv L r^tJf th ^7" !?••' *" *"^"^ "' ^"°«sse8 before courts-martial. such restriction, the statute providing in general tSml^" Thit in' »1 ' ! V, in trials by court-martial, depositions Ly be'give^'ln^^^ce^&c'^'jTr. Cong?3«1! MILITABY LAW AND PRECEDENTS, 353 cuch Cross- Interrogatories as the party notified may present ; and desiring him to serve a copy of the latter upon the party giving the notice within a reasonable time. The party notified transmits in due time to the other party a draft of his Cross-Interrogatories, if he vrtshesi to propose any, (with his objections, if he desires to note any at this stage, to the Interrogatories,) and the original party, similarly, if he sees fit, may note his objectidns to the Cross-Interroga- tories. The judge advocate tiiereupon duly forwards the whole to the person who Is to take the deposition, or, if no such person has been designated, to the proper military authority, (Department Commander, General Commanding the Army, or, through the Adjutant General, to the Secretary of War,) for such "s See Pelamourges v. Clark, 9 Iowa, 2 ; Wheeler v. Smith, 13 Id., 564 ; Nash ■». State, 2 Greene, 287 ; Digest, 104, 105. •• See G. C. M. O. 92, Div. Atlantic, 1889. ™ See Imperial Dictionary — " Capital." This is the sense uniformly ascribed, in this treatise, to the word as used In the Articles generally, and this Is the sense attributed to It in the practice of the service. " 2 Oplns. At Gen., 344. n See Bev. Sts., Sees. 863-870. »• An officer of the army is In general to be preferred, since, If a oMl commissioner is employed, an indebtedness for fees will ordinarily be Incnrred. 356 MILITABY LAW AND PRECEDENTS. designation or orders. Objections need not be thus noted on the sets of Interrogatories, but may, and generally are, left to be raised at the trial. The original party, before forwarding, may add re-direct Interrogatories, (serv- ing a. copy on the opposite party,) if he thinks it desirable. 2. Or, as is by far the preferable mode where practicable to adopt it, 540 the parties — the accused and judge advocate — enter into and subscribe a written SiiPtrLATioN," by which it is agreed that the deposition of the witness shall be made and forwarded by him directly, or shall be taken by a particular oflScer mentioned or an officer to be designated for the purpose by the proper superior, — ^upon certain annexed Interrogatories agreed upon by the parties jointly, (or Interrogatories and Cross-Interrogatories contributed by them respectively where they cannot thus agree,) subject to such objections either to questions or answers as either party may properly raise before the court The Stipulation is itself evidence of "reasonable notice" given, and is a waiver of any irre^larities that may have attended the proceeding. It may well include an agreement that the deposition when returned shall first be opened by the president of the court In the presence of the court and of the IjarUes." The stipulation, with the appended Interrogatories, should be for- warded by the judge advocate, either to the vrttness directly, or to the officer named, or to the Commander for Ms action — according to the agreement of the parties. In forwarding the Interrogatories, the judge advocate should include a proper subpoena or subpcenas for the witness or witnesses, according to the regulation on the subject prescribed in General Orders." Where the Interrogatories have been forwarded to the witness directly, he will proceed to make in vrriting under oath" his answers thereto, and will thereupon return the whole to the president of the .court, or other officer or person as stipulated or requested. Where the witness is an offlcer of the army, the forwarding of the Interrogatories thus directly, with a view to his making up and returning the deposition similarly directly, may often be the preferable course of proceeding. The usual practice, however, is both to forward and return through the proper military headquarters. 541 Where the Interrogatories have been forwarded directly, or through military channels, to an officer or other person, as a commissioner or agent to take or cause to be made the deposition, such officer will proceed to meet or communicate with the Witness as soon as practicable, and to take or procure in writing his sworn answers seriatim to the interrogatories as propounded by the parties or party. These, being signed and duly certified as sworn to, are, with such documents or other writings as may have been called for from the witness or referred to in his answers, appended to the Interrogatories, and the Deposition thus made up, being authenticated by the certificate of the officer, &c., as duly taken, is, together with the order or orders, if any, exhibiting the authority of the officer, forwarded by mail or otherwise to the headquarters of the proper commander for transmission to the court, or directly to the president of the same, as may have been stipulated or directed. " See form In Appendix, "See post. ™ Circ. No. 3, (H. A.,) 1888. "Witnesses, In making their depositions, have sometimes sworn to the same at the !u^'J"J" f ^^^ *".?* '"i^"^ ^'"^ ^^" «*''*°- "^^^ "SUlar course Is to be sworn at the heginnlng, as other witnesses are sworn under Art. 92. MILITAKY LAW AND PRECEDENTS. 357 The deposition, it may be remarked, whether returned directly or through military channels, is properly transmitted or delivered to the president of the court rather than to the judge advocate, the latter being commonly a party to the proceeding. The deposition, to whomever forwarded, should properly be first opened in court and in the presence of hath parties.'" When opened it should be delivered to the party at whose instance it was taken— accused or judge advocate — ^to be " read in evidence." It is directed in Circular, No. 9, (H. A.,) of 1888, tiia.t—"When the deposi- tion has been returned to the court, together with the subpoena, then the judge advocate should prepare and sign the usual certificates of attendance amd transmit them to the witness, with duplicate copies of the order convening the court. The fact of the attendance and the length of the same is to be ascer- tained from the deposition." The subpoena, copy of the convening order, and judge advocate's certificate, constitute the evidence upon which the witness will be enabled to receive his fees, &c., from the Pay department of the Army, which will pay the same out of Oie annual appropriation "for compensation of witnesses attending upon courts-martial." A civilian witness who attends to give his deposition is entitled to the same "fees and expenses," 542 (authorized by the Army Regulations, Art. LXXVI,) as if he had at- tended personally before the court." V. The CBEDiBrLiTT and Weight of Obal Testimony. In addition to what has been remarked on this subject under the foregoing Titles, there may further be noted certain legal rulings and practical considera- tions, as of value to the court in estimating the abstract importance and rela- tive force of testimony in connection with its Finding. THE TESTIMONY OE ACCOMPLICES. While the testimony of an ac- complice, if believed, may be suflScient, though unsupported, to warrant a con- viction, it is agreed by the authorities that, as a general rule, such testimony cannot safely be accepted as adequate for such purpose unless corroborated by reliable evidence." It need not indeed be confirmed as to all its parts : if sus- tained aa to some material and important points, it may in general be credited as to others." It Is held, however, that the corroboration must certainly ex- tend to the identity, (where that is in question,) of the person of the accused." TESTIMONY AS APFECTED BY IMPERFECT VERACITY OR BY DIS- CREPANCY. Even where the character for veracity of a witness is shown to be bad, his testimony is not necessarily to be altogether disregarded, but is to be considered in connection with the rest of the evidence, and such credit given to it as it may be found justly entitled to." ™It has been held a fatal objection to a deposition that It was opened out of court. Beale v. Thompson, 8 Cranch, 70. Such objection, however, may be waived- by the interested party, and the deposition admitted in eTidence .In the discretion of the court. '• Clre. No. 9, (H. A.,) 1883. "I Greenl. Br. § 380; Wharton, Cr. Bv. § 441 ; 1 Bishop, C. P. § 1169; V. & v. Kessler, Baldwin, 22 ; U. S. v. Lancaster, 2 McLean, 431 ; U. S. v. Troax, 3 Id., 224 : Stelnham v. tJ. S., 2 Paine, 168 ; U. S. v. Harries and Smith, 2 Bond, 311, 323 ; U. S. v. Babcoclc, 3 Dillon, 619; G. O. 14, Dept. of Daltota, 1868. That the rule in regard to accomplices does not apply to informera, see 1 Greenl. Ev. S 382 ; TJ. S. v. Patterson, 3 McLean, 63, 299. , » D. S. v. Kessler, ante; V. S. v. Keeves, 38 Fed., 404 ; V. S. v. Lancaster, 44 Fed., 896 ; U. S. V. Tbanez, 53 Fed., 536. » See Wharton, Cr. Ev. S 442. " State V, UiUer, 63 Iowa, 208. 358 MILITAET LAW AND PRECEDBNXS. So where a witness Is shown to have testified falsely to a certain particular, the maxim falsug in uno falstis in omnibus is not necessarily to be ap- 543 plied, nor is all his testimony necessarily to be disregarded. The pre- sumption against his general veracity will indeed be strong where the false statement relates to some matter as to which he can scarcely be liable to mistalce ; still, though the falsity may be such as to discredit him in general, it does not follow that some portions of his testimony may not be true." Falsehood and disingenuousness in witnesses are, as has been remarked, in practice not imfrequently indicated by their avoidance of particularization in their testimony. " Fabricators," writes Wharton," " deal usually with generali- ties, avoiding circumstantial references which may be Ukely to bring their state- ments into coUi'Sion with other evidence; and hence it is properly held that a studied avoidance of details, by witnesses, throws suspicion on their statements. This, however," it is added, " depends uiwn the object to be recalled ; " it being not to " events of remote date," but to " matters which the witness, under ordi- nary circumstances, would remember," that the test most " f&irly applies." The testimony of a witness should not be regarded as Impeached by the fact that his statement differs from those of other witnesses as to the secondary details of an occurrence, nor by the fact that others who were present did not hear or see what he states to have been said or done." Discrepancies as to minor matters rather tend to sustain the credit of witnesses, as indicating the absence of concert." And the perceptive powers, as well as the capacities and opportunities for observation, of witnesses, are so diverse that it is quite pos- sible and natural that acts or words sworn to by one witness should have escaped the notice of another present at the same time and place." So, the positive testimony of a witness as to a particular fact In a case, which was certainly within his knowledge, should not be regarded as necessarily dis- 544 credited by his failure to recall other facts in the case or by his contra- dictory or confused statements in regard to the same." APriBMATIVE AND NEGATIVE TESTIMONY. As remarked by the U. S. Supreme Court in an adjudged case : "— " It is a rule of evidence that, ordinarily, a witness who testifies to an affirmative Is entitled to credit in preference to one who testifies to a negative, because the latter may have forgotten what actually occurred, whereas it is impossible to remember what never existed." Again the negative witness may not have "forgotten," but may simply have failed to perceive what has really occurred in his presence or near him. Of two equally honest witnesses, the one, from a superior faculty of discernment, or a superior opportunity for informing himself, or both, may have become cognizant of facts to which he can testify affirmatively! while the other, when interrogated as to the same matter, can only reply that « Wharton, Cr. Ev. § 380; The Santlssima Trinidad, 7 Wheaton, 339; Hall v Renfro S Met. IKy.,) 51 ; State v. Brantley, 63 No. Ca., 518 ; Shellabarger v. Nafus, 15 Kans.' 547. »Cr. Ev. § 389. On the other hand, an over-minute specification of details, especially as to remote events or unimportant matters, does not add to the credit of a witness but rather the reverse. Id. ; O Brien, 219. * Bogle V. Hammons, 2 Tenn., 137. "See Simmons § 986; O'Brien, 221. r.7:!VugheT3f Jedt 7ll-r°' "' ''^'°™'^'' '■' "" '""^ "^"'"""^ °* *-«— ^^ '» ™McClaskey v. Barr, 54 Fed., 781. •"Stitt V. Hnidekopers, 17 Wallace, 384. And see Au » R R Co 29 F»rt 79. ' Wharton. Cr. Ev. S 382. "The testimony of a series of witness^', for' Instance ' tlat they never savr a party drunk, does not outweigh the testimony of otherrto tt; faot of his drunkenness on particular occasions, unless those speaking to the ne^tivP n^!f^ the same point of time as those speaking to the afflrmatlvl" Wharton Cr bI s^II citing Murphy v. People, 90 Ills., 59. """"ve. wnarton, Cr. Ev. § 382, MILITABY lAW AND PBEOEDENTS. 359 he did not see or hear, or does not know, &c.; yet each will be a truthful witness. A witness may also have been mentally preoccupied at the time of the occurrence in question; or, for fear of involving himself or otherwise, he may have been unwilling to take notice of what was passing: in such cases also his testimoLy may be true, though of a negative character and of inferior relative weight. TESTIMONY OP THE ACCTTSED. In a case of importance in which the accused takes the stand as a witness in his own behalf, it may be embarrassing to determine exactly how far he is to be believed. His credibility will be sub- ject to question oftener perhaps for the reason that it is not natural to expect an uncolored statement from a person charged with crime, than for the reason that he is to be supposed to have wilfully stated what is false. His interegt in the case is " greater than that of any other witness " and therefore " may seriously affect the credence that shall be given to his testimony."" Such testimony will always be fair material for a rigid cross-examination, and, 545 as it has been observed by the U. S. Supreme Court, " a greater latitude is undoubtedly allowable in the cross-examination of a party who places himself on the stand than in that of other witnesses."" How successfully he may endure this test is a circumstance which will be most material In measuring his credibility ; " but probably the safest general rule to apply to his evidence as a whole— at least where a prima fade case has already been made out against him by the prosecution — will be that entire credit should not be given to his statements except in so far as he is corroborated by un- prejudiced witnesses or reliable written testimony." NXnUtBEB OE WITNESSES. The relative number of the witnesses for the prosecution and the defence, though a material factor where the number on one Side very considerably exceeds that on ihe other, is by no means decisive in general. The relative weight of testimony depends much less iipon the number of the witnesses than upon the quality of their statements. Evidence is valuable according as it is the expression of such concomitants as superior intelligence, capacity of appreciation, habit of observation, and opportunity for acquiring knowledge, and a single witness in whose case these incidents concur will properly outweigh several less well qualified and Informed witnesses." UANNEB OE THE WITNESS. That the manner of the witness 546 on the stand — ^his appearance, demeanor, style of expressing himself, &c. — ^is proper to be considered in connection with his testimony as " Reagan v. V. S., 15T V. S., 301, 310. "Rea V. Missouri, 17 Wallace, 542. *■ Some Inference may perhaps also be drawn from the manner In which his direct examination is conducted. Thus where a party " was examined as a, witness In his own behalf, yet his counsel forbore to lnt»rogate him " -as to certain conduct charged against him and especially material in the case, It was held that " the natural and irresistible Inference from this omission was that the party was consdons of the truth of the charge and was too honest to deny it if he had been examined concernlne it." McCall V. McDowell, Deady, 243. •• See Reagan v. U. S., ante. « See Sibley v. Ins. Co., 9 Blssell, 31 ; Taylor v. Harwood, Taney's Dec, 437 ; Randolph V. Lane, 57 Ind., 115 ; McCrum v. Corby, 15 Kans., 117 ; G. C. M. O. 3, Dept. of the Mo., 1884. "Witnesses cannot be treated as units, to be divested of their own dis- tinctive claims to credit. It may well happen that one intelligent and honest witness may outweigh several who are Ignorant or unreliable. Nor should It be forgotten that one witness, corroborated by facts or documents, may outweigh a multitude whose testimony may have been the result of imperfect observation or have been Influenced by prejudice." So it may happen that the evidence of a witness who Is entirely unsup- ported may be such as properly to outweigh that of another whose statements are corroborated. Canada v. Curry, 73 Ind., 246, 360 MILITARY LAW AND PRECEDENTS. adding to or detracting from his credibility and relative weight, Is a point frequently noticed by the authorities." Where for example, the bearing of a witness is such as to indicate that he is simply making a statement of the facta within his knowledge and observation, uninfluenced by interest or i)ersonaI feeling, his testimony will carry very considerably more weight than where It is apparently colored by resentment or prejudice, or where, unconsciously perhaps to himself, he speaks as a partisan of the side on which he is caUed. So a reluctant and overcautious witness, or a " willing " or " fast " one, Is in general less to be credited than one whose evidence is neither calculated nor impulsive, who is frank without being florid or dlttuse. So too a clear and self-possessed witness will ordinarily make a better impression than an agitated or confused one. At the same time it is unquestionable that a perfectly reliable and truthful witness will not unfreguently fall to do himself justice from natural embarrassment or a lack of fluency, and. that diffidence and hesitation on the stand are as often characteristics of an honest as of a dishonest witness." A court-martial, by reason of the superior education and intelligence of Its members, is a species of jury which should be peculiarly qualified for the dis- criminations and comparisons necessary to be made in estimating the relative weight and credibility of oral testimonies." 547 IV. WRITTEN TESTIMONY. This subject will be considered under the Titles of — I. Public Writings ; II. Private Writings. I. Ptjbuc Wbitinos. These may be divided into— -1. Judicial Records ; 2, Other Public Documents. 1. JTIDICLAIi SECOBSS — Records of civil tribunals. Records of courts of the United States or of the States will rarely be required to be offered in evi- dence on military trials. Occasion, however, may occur for such evidence; — as where a soldier, to disprove a charge of desertion, has to show that he has been detained in arrest by the civil authorities for some crime or disorder, or sentenced therefor by a civil court to a term of Imprisonment ; or the prosecu- tion In a case of desertion has to prove such a sentence and confinement, as evidence of the existence of a " manifest Impediment " excepting the case from the operation of the 103d Article of war ; " or where an officer or soldier charged before a court-martial, in time of war, with one of the offences specified in Art. 58, has to offer in support of a plea of former trial, (under Art. 102,) the record ••U. S. tJ. Cole, 5 McLean, 614; Johnson v. V. S., 157 U. S., 675; DickenBon v. Gore, Newberry. 415 ; Callaaan v. Shaw, 24 lowa, 441 ; Stokes j>. Mowatt, 1 V. S. Law Jour 325; Tytler, 262; Simmons 8.673; Kennedy, 173-5; Napier, 103; De Hart 150- IS Oplns. At Gen., 119. ' ""EquaUy truthM men often speak In very different ways about the same transaction, one with perfect confidence and the other with doubt and hesitaUon. One will sav— • It T^M^^L"^" ".^^T".' '^r " """'■ -^ ^"'y '« ^""'^ "y "^"l'^ Btatement. ^t may ^.^™^\hl, .. .. x." ^°'' "°* '"""^ *'"''* " J""^ ""«* "««t the former In preference to the latter." Muscott v. Stubbs, 24 Kansas, 520 522 J^.'^^^^J^L^''^^^*' "' *•"* «'««Mllty of witnesses Dillon' J., in V 8 v Babcock 3 Dillon. 61ft-820, expresses himself as follows :-" The degree of credit dn» V„ . ^^^ Should be determined by his character and conduct; by hU maLer "he sta^ Tls relation to the controversy and to the parties; his hopes and fe^rs-Z btas or tana^ tlaUty; the reasonableness or otherwise of thp st«t<.m.„t= v. V "~ ™* " unpar- weakness of his recollection vleweT^rthe i ght of aU the oth^^^^^^ ^'T^ "' clrcumBtances in the case." And see Huchberler °. Ins Co 4 IL^U ^65 "' ""^ '°^ » See /» re Davison, 4 Fed. Eep., 607. ' ^"^"' 265. MILITARY lAW AND PRECEDENTS, 361 of , his acquittal or conviction by a civil tribunal having concurrent jurisdiction of the crime; "" or where It may be material, (as In rare cases It has been,) to put in evidence a judgment of divorce, or a decree of a probate court granting letters of administration. When thus required, the records of judgments, &c., of courts of the United States, (in the absence of the originals, vchlch will rarely be attainable,) may be proved by copies under the seal of the court attested by the clerk. Judgments and judicial proceedings of State courts of general jurisdiction are proved by copies attested by the clerk and certified by the judge, as prescribed in 548 Sec. 905, Rev. Sts.' Judgments, &c., of municipal courts, or courts of limited judicial authority such as those of justices of the peace, of whose proceedings a formal record is required by law to be kept, may be proved by copies authenticated, so far as may be practicable, in the manner prescribed by the same statute. In the absence of a formal record, such judgments, &c., are proved by the book containing the minutes, produced and verified by the justice or other proper custodian as a witness, or by a copy of the minutes authenti- cated according to the local law or usage, or, if there has been no minute or written entry made of the proceedings, by the testimony of the justice or other " competent person." * These forms of proof, adopted in civil proceedings, should also be observed in military cases, unless the parties, by stipulating to admit the existence and substance of the record desired to be shown, may dispense with the usual for- malities. Secords of military tribTinals. These, not being possessed or held in the office of any court or by any judicial authority, but being simply preserved In the War Department, or at the headquarters of military commands, are, as respects the form of proving the same by authenticated copies, not judicial records but executive documents. They wlU therefore be included under the following head. 2. OTHER PtTBLIC DOCUMENTS. This second species of public writings consists, mainly, of the acts of the legislative and executive departments of government in their collective capacities, and of the official acts of the sepa- rate public functionaries, as contained in official books and papers form- 549 ing the records of public transactions. These may therefore be divided into: (1) Legislative acts and acts of State; such as Acts and Resolu- tions of Congress, and Congressional debates and proceedings ; Executive procla^ mations, orders, communications to Congress, &c.; and Treaties; (2) Official books and papers. »» See Chapter XVI — " Plea of Former Trial." » As to judgments of courts of foreign countries, these, says Marshall, C. J., In Church V. Hubbart, 2 Cranch, 238, are to be authenticated — " 1. By an exemplification under the great seal ; 2. By a copy proved to be a true copy," (by a witness who has compare^ It with the original. 1 Greenl. Er. § 514 ;) " 3. By the certificate of an officer authorized by law, which certificate must Itself be properly authenticated. These," he adds, " are the usual, and appear to be the most proper, If not the only, modes of verifying foreign Judgments. If they be all beyond the reach of the party, other testimony inferior in its nature might be received." And see 1 Greenl. Bv. § 514; Butterlck v. Allen, 8 Mass 273 ; Lincoln v. Battelle, 6 Wend., 475. If a foreign Judgment were proposed to be offered In evidence before a military court. It would be desirable to procure to be appended to the record a certificate of the American consul, attesting the genuineness of the signature of the certifying Judge or clerk, and stating that the authentication was In the usual form adopted for copies of records of the particular court The copy might then properly be admitted without further evidence. See Packard v. Hill, 7 Cow., 434. • 1 Greenl. Ev, § 513. 362 MELITAEY lAW AND PEECEDENTS. 1. Legislative acts and acts of State. The public Statutes— Acts and Reso- lutions"— of Congress are proved as follows: If enacted prior to December 1, 1873, they are proved by the Revised Statutes, which comprise a single Act of Congress of June 22, 1874, (originally published in one volume in 1875, and of which a Second Edition, that now in use, was published in 1878,) and constitute a revision and consolidation of all the existing public laws, (as contained in the previous seventeen volumes of " Statutes at Large,") in force on said December 1, 1873,* with a very few designated exceptions." If enacted since December 1, 1873, public statutesi are proved, either by the single volume designated as the " Supplement to the Revised Statutes," • made, by the Joint Resolution of June 7, 1880, "prima facie evidence of the laws therein contained;" or by the separate publications or volumes issued from year to year under the direction of the Secretary of State,' according 550 to the provisions of the Act of June 20, 1874, and made by said Act " legal evidence of the laws and treaties therein contained." Private statutes are proved by the printed copies of the Private Acts and Resolutions as first collected in Vol. 6 of the Statutes at Large, and further contained in each volume of those Statutes from the 9th to the volume last published. The public treaties are proved from the Volume containing treaties in force, required to be compiled and published by sec. 3 of the Act of June 20, 1874 ; and, as to those of later date, by the printed copies of the same pub- lished at the end of the volumes of Statutes at Large from Vol. 18 to the last volume. Publications of statutes in Orders. As already indicated, military courts may properly take judicial notice, without further evidence, (in the absence of proof that they are incorrectly printed,) of the Acts arid Resolutions of Congress relating chiefly to the Army, which are published for its Information In printed General Orders issued from the War Department or Headquarters of the Army. A statute of Congress, not yet published, can only be proved by a copy from the State Department, (where the original Is deposited,) authenticated under the seal of the department. ■ " Resolutions " are no less statutes than " Acts." Originally — in the Continental Congress — all enactments were designated as Resolutions. Under the Constitution, Resolutions were first resorted to mainly for the requesting, authorizing, or directing of things to be done by executive officials of the government, the regulation of minor details of public expenditure, &c. Later, they have not unfrequefitly contained legisla- tion on subjects of general importance capable of being briefly disposed of. They are now designated In their titles as "Joint Resolutions," and in their publication are classed as " Public " and " Private " Resolutions ; the latter, with the " Private Acts," comprising the legislation for the relief or benefit of Individuals. Pub. Stats., p. 588 8 42. «" Pub. Gen. Laws, vol. 1, p. 689. " Gen. Stats., p. 548. « Act, Feb. 26, 1889, c. 22. "Code S 3840. "Code § 4905. " Code, Civil Procedure § 1944. '• Hill's Annotated Laws § 765. »• Compiled Stats., p. 783. "Code, Civil Procedure § 2072. 372 MrLITAKY liAW AND PRECEDENTS. the courts in sundry of the other States ; — as in Massachusetts," Maine," 565 New Hampshire," Vermont," Connecticut," Ohio," Pennsylvania," Indi- ana," South Carolina," Mississippi," Minnesota," Kansas," and in Utah." The common-law rule, however, denies the admission of such writings, and this rule has been recognized in the decisions of the U. S. Supreme Court," and favored in other of the federal courts." In the leading military case of Cadet Whlttaker," tried by general court-martial at West Point, New York, In 1881, the court, against the objection of the accused, admitted writings of his, not previously In the case but testified to be genuine, as standards of comparison with a disputed writing which was the basis of one of the charges. In an opinion of March 17, 1882," this ruling was held by Atty. Gen. Brewster to be erroneous, as being opposed to the common-law doctrine, and the sentence ad- vised to be " set aside." " This opinion having been concurred in by. the Prert- dent," the proceedings and sentence were disapproved accordingly, on the ground of this objection alone, and one of the most extended and laborious In- 566 vestigations by court-martial ever held In this country thus came to naught. There were^ however, special circumstances in this case which doubtless availed to induce the authorities to give to the accused, (a colored person, ) the full benefit of any question as to the application of the law to his defence. In the opinion of the author the common-law rule on this subject is not a satisfactory one. The main objections which have been urged to using, as standards of comparison, writings not already in the case as evidence are, that there is danger that the same may be deliberately selected from the mass of the correspondence, &c., of the party as the specimens most favorable for the pur- pose, and may not therefore fairly represent his average handwriting; and further that their Introduction may open the door to collateral Issues. The modern tendency, however, is — as has been seen — to reject the earlier rule as rigid and opposed to sound reason, and to admit any " standards " clearly proved to be genuine writings of the party. Otherwise, it would appear, there must sometimes be danger of a failure of justice. " Moody V. Ilowell, 17 Pick., 490. " Chandler v. Le Barron, 45 Maine, 534. " State V. Hastings, 53 N. H., 452. " Adams v. Field, 21 Tt., 256 ; State v. Ward, 39 Id., 226 ; Bowell v. Fuller, 69 Id., 688. "Lyon V. Lyman, 9 Conn., 55. " Calkins v. State, 14 Ohio St., 222 ; Bragg v. Colwell, 19 Id., 40T ; Bell v. Brewster, 44 Id., 690. " Travis v. Brown, 43 Pa. St., 9. '» Chance v. E. R. Co., 32 Ind., 472. " Robertson ii. Millar, 1 McMuU, 120. *> Wilson V. Beauchamp, 50 Miss., 24. "Morrison v. Potter, 35 Minn., 425. ■" Macomber v. Scott, 10 Kans., 335 ; State v. Zimmerman, 47 Id., 247. "Tucker v. Kellogg, 28 P., 870. And see further. In this connection, 2 Bishop, C. P. § 432 6; Wharton, Cr. Ev. § 557. « Moore v. V. S., 91 U. S., 270 ; Williams v. Conger, 125 U. S., 397. "= See U. S. V. Craig, 4 Wash., 729 ; TJ. S. d. Chamberlain, 12 Blatch., 390 ; TJ. S. v. Jones, 10 Fed., 469 ; Medway v. V. S., 6 Ct. CI., 429. In TJ. S. ■». Craig, however, the court, though recognizing the common-law rule, adds that it "never was well satisfied with the reason " of the same. "The proceedings are published in G. C. M. O. 18, (H. A.,) of March 12, 1882 And see Do. 31, Dept. of Texas, 1892 ; Do. 37, Dept. of the Platte, 1892 "17 Opins. At Gen., 300. "An incorrect term as applied to action In a miUtary case. Disapproved would have been the proper one, and Js that used In the Order «" See G. C. M. 0. 18 of 1882, above noted. MILITABY LAW AND PRECEDENTS. 373 A court-martial composed of educated and inteUigent officers of the army, representing the functions of both jury and judge, may, it is beUeved, safely be trusted, where other sufficient means are wanting, to depart from the strict common-law rule and avail itself, in its discretion, of the method authorized by the modem and enlightened English statute and sanctioned by the Jaws and rulings in not a few of our States. In view of the diversity of authority on the subject, such a court, in allowing itself to be so assisted, cannot— it Is submit- ted—properly be viewed as taking " illegal " ■" action, when the course pursued will apparently work no Injustice while conducing to a more complete investi- gation of the truth." Conclusion. In concluding, (as In beginning,) this Chapter, it may be 567 stated, as the view of the author, that while a military court should, in general, as the wisest, safest and fairest proceeding, observe the well- established rules of evidence, yet where the rule pertaining to a particular subject is unsettled, or where it is so technical or antiquated as to restrict or embarrass a thorough investigation, the court may and should, in its discretion, adopt such course in regard to the reception find employment of testimony as justice — justice to the United States as well as to the accused — may appear to dictate. *> The Attorney Generalt In his opinion, refers to the conviction in Whittaker's Case as " illegally obtained." The term is not a correct one, since the error of the Court, If It was an error, while It might proi)erly have Induced a disapproval of the proceedings and sentence, was not such as to have affected their legal validity. u The view of the author, in regard to the proof of handwriting by comparison, is con- curred In by Gen. Merrltt In a recent General Order — G. C. M. O. 30, Dept. of Dakota, 1894. CHAPTER XIX. THE EENDnrG. 568 The Trial having been completed, and the arguments or statements, if any are made, being concluded, the court proceeds — in general without any adjournment if the legal hours of session have not elapsed — at once to its Judgment, which consists of the Finding and Sentence.' If indeed the ease Is one in which considerable evidence has been taken and the judge advocate has not been enabled to bring up his record, the court may in. its discretion adjourn to aflford him time for the purpose. So in any case of importance, it may properly takie an adjournment before entering upon the responsible duty of the Finding. The subject of the Finding will be considered under the heads of-^I. Mode and Rules of Procedure ; II. Forms of Findings ; III, Additions to the Flndlug. I. MODE AND RULES OF PROCEDURE. CLEAMNG. The presiding officer forthwith announces that the court will be cleared for deliberation upon its findings ; whereupon accused, counsel, clerks, reporters, guards, witnesses, spectators, &c., and now also the judge advocate, (as required by the Act of July 27, 1892,) withdraw; and the doors are then closed. BEIilBEBATION. Before voting, the court, if deemed desirable, may have the entire evidence read over to it by a member from the record. Com- 569 monly, however, it is found sufficient to refer to the different portions of the testimony from time to time, as the members may desire to refresh their recollection as to particular facts. Prior to the voting, discussion as to the merits of the case Is sometimes en- gaged in by the members; but as such discussion, at this point, may perhaps exert an undesirable influence upon the views of the junior members, it is in general the preferable course, in order that all opinions may be as independent as possible, to reserve debate till the taking of a vote shall disclose differences necessary to be harmonized before a legal finding can be arrived at.' When disGjnssion is had, it may be informal, but should be free, frank and open." Here, as in all other deliberations of the court, the principle of the perfect equality of the members should be observed, and a junior officer in rank or age be conceded the same right to declare his views as a senior.* So, what- ^ If, after the evidence, or the evidence of the prosecution, Is all In, the accused escapes from military custody and absconds, the court may proceed to judgment In the usual manner notwithstanding. See Trial by Military ' Commission of H. H. Dodd, Indiana, 1864 ; and compare Fight v. State, 7 Ohio, 180 ; McCorkle v. State, 14 Ind , 39 ; State v Wamlre, 16 Id., 357. 'See McNaghten, 115, and post under " Provision of Art. 95." » See Tytler, 311 ; Kennedy, 182 ; Macomb, 58 ; De Hart, 174. * " In all deliberations the law secures the equality of members." Par. 1005 A K 374 MILITAEY LAW AND PRECEDENTS. 375 ever opinions or views are expressed should be expressed to all— laid before the court. As is remarked by Bishop" with regard to jurors — "If they do not spontaneously agree, they should confer together, each speaking in the hearing of all, not in clusters of two or three privately. Bach should give due weight to the opinions of the others, but not concur In that to which he cannot bring his own judgment to consent." ADJOURNMENT PENDING DELIBERATION. In case of a pointed dif- ference of opinion — as where, there being an even number of members, the vote upon a charge or specification is found to be a tie — a more extended delibera- tion may be considered desirable, and in such a case the court may adjourn and separate, to allow an interval for rest and reflection, or to enable the judge advocate or members to consult legal authorities or military precedents. Upon such an adjournment the members should not of course allow themselves to converse with or receive communications from other officers or persons in reference to the case under investigation. Making a personal communi- 570 cation to a juryman "is an indictable offence when such communication touches the subject matter of the trial, or it may be treated as a con- tempt of court." ° So, " it is a misdemeanor in a juryman knowiiigly to permit such communications." ' RECALLING WITNESSES. It is held by Simmons' thai the court, dur- ing its final deliberation, may, to assist its conclusions, " recall a^ witness for the purpose of putting any particular question deemed essential." He adds — " The parties must necessarily be present, and cannot be refused permission to cross- examine or re-examine the witness to the extent at the question proposed by the court. The prisoner moreover must have the fullest opportunity of meeting the evidence." This view is repeated by some subsequent writers.' Such course, however, has been most rarely pursued, and is now quite unknown, in our practice, and would, if resorted to, be regarded as an exceptional irregu- larity. It need Jiardly be remarked that the material evidence in the case should, properly, be so fully and clearly set forth in the record of that part of the trial in which it was introduced as to render such a proceeding quite un- necessary. THE VOTING. This may be vvva voce, but is commonly and preferably conducted by vn-itten, unsigned ballots. The votes— usually collected by the judge advocate— are taken, first upon the specification and then upon the charge, or, when there are several specifications, upon the same in order beginning with the first, and lastly upon the charge. Where there are several charges, the same proceeding is had as to each of the charges and its specification or specifi- cations, separately, in the order of their number. THE FINDING TO BE COMPLETE. In military law a general verdict, (on all the charges, &c., together,) cannot properly be rendered ; there must be, in fact and of- record, a separate and independent formal finding upon each specification and each charge." And where exceptions and substitutions 571 are made,"* the accused must be acquitted or convicted on every part— every averment and particular— of each specification and charge." " The M C. P. i 998 a. •Wharton, C. P. & P. § 729. And see 1 Bishop, C. P. § 996. ' Wharton, C. P. & P. § 721. •Courts-Martial § 613. • O'Brien, 264 ; De Hart, 174. "Simmons § 620; Kennedy, 185. llZr^rLZTZTZLus." the s^eiflcations and char.es. see McXa.hten. 195 ; O'Brien, 264 ; De Hart, 180. 376 MILITAKY LAW AKD PEBCEDBSTTS. verdict," says Bishop," " should be a complete finding in due form upon the whole issue and all the issues." Such a finding indeed is necessary not only to perfect the judgment, but to protect the accused against a second trial for any of the offences set forth in the pleadings. Where the charge is a joint one, there must similarly be separate and distinct votings and findings as to each of the joint accused. PBOVISION OF ABT. 95. It is provided by the 95th Article of war that — "Members of a, court-martial, in giving their votes, shall begin vMth the youngest in commission." Accordingly the judge advocate, in taking a vote, calls first upon the junior member, then upon the next senior, and so on to the president. This provision — one of the oldest in our military law " — ^was enacted no doubt upon the theory that the voting would be viva voce and open, and the reason which has been assigned for it is that the junior members, if required to vote first, will be less liable to be influenced by the opinions of their seniors. Where however the voting, as it more usually is at this stage, is by written ballot, the reason of the statute scarcely applies : it is rather, as to the voting upon interlocutory questions that the rule is important to be observed. EVERY MEMBER MUST VOTE. All the members must join in the finding upon every charge and specification. A failure to vote would be a neglect of the duty impliedly enjoined by the order detailing the member upon the court, and also a violation in substance of his oath in which he swore ".well and truly to try and determine ; " and would thus constitute a military offence within the description of Art. 62." THE FINDING MUST BE ACCORDING TO THE EVIDENCE. The 572 votes of the members must be based upon and governed by the testimony in the case considered in connection with the pZea." The member swears to " well and truly try and determine according to the evidence," and if he allows his vote to be controlled by facts known to himself or communicated to him by another member, but not in evidence," or by his personal notions, prejudices or feelings, he is chargeable with a dereliction of duty. He should also take into consideration all the testimony, for he is not at liberty to disregard the statements of any witness not .seriously impeached or shown to have per- jured himself." And, in so doing, he may measure the relative weight and credibility of the witnesses not only by the substance and quality of their evidence but by their appearance and manner on the stand under the direct and the cross-examination." While all matter of legal excuse will justly affect the findings, it is quite otherwise with matter of extenuation.'^ Such matter can legitimately be con- " 1 C. P. § 1004. "It appears In the Code of Articles of James II, (168S.) «Clode, M. L., 150. Further, the occused Is entitles, to have each member vote Griffiths, 167-8. >« Simmons § 625 ; Kennedy, 184 ; O'Brien, 241, 263 ; G. C. M„0. 37, Div. Atiantic, 1890. >» " Statements by one Jnror to the rest of what he knows of the case should not be made or received, and If acted on they will furnish ground for a new trial." 1 Bishop, C. P. § 998 a. " The juror may use that general Itnowledge which any man may bring to the subject, but if he has a particular knowledge," (as of an expert or quoH expert character,) he ought to be sworn and examined as a witness." Eex v. Rosser 7 C & P 648 That a court martial may not allow its finding to be Influenced by facts within ^oL °^ ^^ *^ individual members, but not In evidence, see G. O. 21, Dept. of the Ohio 1866; Do 20, Dept of the South, 1866; G. C. M. O. 41, Dept. of Texas, 1874; Do. 8. Dept. of Arizona, 1874 ; Digest, 97. ~i , -^ , " Evans v. George, 80 Ills,, 61. theTS,.' and'noter "' "^''^^ ^Vni-" Number of Witnesses."-" Manner of "° G. O. 4 of 1843— remarks of Hon. J. C. Spencor, Secretary of War. MILITAIIY LAW AND PRECEDKSrTS. 37Y siaered only in connection with the sentence, (where the punishment is discre- tionary,) or as a basis for a recommendation to clemency; or more properly by the reviewing authority in taking action upon the proceedings. The court cannot in general properly base its andlng, in the absence of testimony, upon admissions of the accused in his statement; the same not being evidence." 573 CHANCE OB COMPROMISE VEBDICT. The voting must consist in an expression of the individual opinions of the members. A resort to casting lots, or other expedient by which the judgment is determined by chance, is grossly irregular, and, where known to have occurred, would properely induce a disapproval of the flnding."" So, a "compromise verdict" is objectionable and improper, except where the result of an honest modification of Individual views, and the expression of a matured opinion.^ The effect of compromise however is a point more apposite to the subject of the sentence than to that of the finding. MAJOBITY BTTLE. TJpon the finding, as elsewhere in the proceedings, the result— in ail cases, whether grave or slight, and whether capital or other — is determined by a majority of the votes. If, for example, three members of a court of five vote Guilty on any charge or specification, the accused is legally convicted thereon. If — there being an even number of members — the vote is a tie, the accused is strictiy neither convicted nor acquitted ; but as he is cer- tainly not convicted, the vote Inures to his benefit and Is equivalent to an acquittal, and the finding is entered on the record as Not Guilty." In capital cases. It has sometimes been supposed that a finding of Guilty of an offence for which the death penalty was prescribed must, to be valid, be made by a two-thirds vote, but this is a misconception. The 96th Article of war — the only law on the subject — simply requires a concurrence of two- thirds of the members to sustain a death sentence. In the case of the finding a majority governs whatever be the character of the sentence, a bare majority being equally sufficient to sustain a capital sentence as a sentence imposing a slight penalty. MODIFICATION OF FINDING. A finding once made may be modi- 574 fled at a subsequent session of the court before the final conclusion of the proceedings in the case. For example, where the court, after a finding of conviction, has adjourned before taking up the matter of the sen- tence, it may, on reassembling, decide first to reconsider its finding and may thereupon change it entirely, (substituting an acquittal for a conviction or vice versa,") or modify it in any part. THE FINDING AN ACT OF THE COUBT — PBOTEST. In the findings as finally made and recorded, whatever they may be and however small may be the majority by which they were arrived at, the court acts as a unit. In law the finding is its act, not the act of certain members." So, neither the » See G. C. M. 0. 179, Dept. of Dakota, 1883. == See Delafons, 148. In the cItU procedure, " any device by which the verdict Is In any degree detei'mined by chance Is Illegal and renders it void." 1 Bishop, C P., 998 a. Such a finding is in general ground for ordering a new trial. Wharton, C. P. & P. §t32, 842. =« Compare Wharton, C. P. & P. I 842. « Simmons S 616; Hughes, 85; Prendergast, 210; De Hart, 180; Coppfie, 83; G. C. M. O, 17 of 1871; Do. 1 of 1872; Do. 38, Dept. of the Platte, 1868; Digkst, 747. To the same effect was the maxim of the Boman law. — "Paribus sententiis reus abeolvUur.'' "' See a case of a substitution of a conviction for an acquittal cited in Griffiths, 92. "Kennedy, 205; De Hart, 187. 378 MILITARY LAW AKD PEECEDENTS. majority nor any members or member ' can protest against a finding after it lias been reached by a majority vote. No protest can be permitted to be en- tered in the record ; nor can a member or members address a personal protest to the commanding general or other superior authority, .without being chargeable with a grave irregularity." In a case, in 1875, where the president of a court-martial added to the record a declaration to the efEect that he disagreed with the majority in the finding of Guilty, stating his reasons, — ^his action was properly disapproved by the reviewing commander." PBESEBVUra THE VOTES. There existed at one time some difference of opinion among the authorities as to whether or not the paper ballots cast by the members of the court, in voting upon the finding, (or sentence,) should be preserved or some permanent minute of the same retained." The better conclusion has prevailed that, in view of the provisions of Arts. 84 and 85 against the disclosure of the votes and opinions of the members, it is preferable to de- stroy the ballots, ^nce otherwise they might fall Into the hands of im- 575 proper persons." A further and sufiiaient reason for this course is that they are no part of the record of the court. It is therefore no part of the duty of the court to retain them, and the almost universal practice now is to destroy them at the conclusion of the proceedings with the other waste paper made on the trial. THE riMDINGS MTJST BE CERTAIN. That is to say they must have no uncertain meaning, but must be intelligible and exact." This will be illustrated in treating presently of the various allowable forms of finding. THE FINDINGS MTTST BE CONSISTENT AND HARMONIOtTS. That Is to say the finding on the charge must be responsive to that on the specifica- tion or specifications,'* and the findings on both must be consistent and In harmony with each other ; else they will be legally defective and will not sup- port a sentence. Incongruous findings In general defeat each other — as will also be illustrated under the next head. II. FORMS OF FINDING. FINDING OF GUILTY OR NOT GUILTY. The simplest and most usual form of military verdict is where the accused is found " Guilty " " or " Not Guilty " of both the charge and the specification. Here the findings are con- sistent and harmonious, and the finding on the charge is supported by that on the specification. And this is also the case where there are several specifica- tions under the charge, and the accused is found Guilty or Not Guilty of one " Simmons S 469 ; Hough, (P.) 703 ; G. O. 19, Dept. of the CaroUnaa, 1866 ; Digbst, 619. » G. C. M. O. 24, Dept. of the Platte, 1875. " See, as favoring the preserving of the votes, (or an abstract of the same,)— Adye, 224; 1 McArthnr, 323; Delafons, 274; De Hart, 177: Cofl.t.a— Simmons § 614; Ken- nedy, 237 ; Griffiths, 176 ; Ben«t, 127. »» Simmons § 614 ; Kennedy, who was Judge Advocate General of the Bombay Army, writes, (p. 237,)— "For. my own part, from the first to the last general court-martial at which I officiated as Judge advocate, I made it a point, as soon as the proceedings were confirmed, to destroy carefully the votes and opinions of the members " "Compare 1 Bishop, C. P. § 1005. " 1 Bishop, C. P. § 1005. "In the naval practice, a common form of convicting is to find "Proved;" and of acquitting- -Not Proved/' Note, for example, the ease of Medical Director Wales. lu G C. M. O. 21, Navy Dept., 1885. and now pa^aim in the Q. C. M. O. of that Department. Where the plea has been-" guilty." a usual form of finding, upon a specification. Is — " Proved by plea." uuumis, uyuu a MHilTABY LAW AND PBECEDENTS. 379 Of the speciflcationa and similarly of the charge. For, however many specifica- tions there may be to a charge, such a finding u^n any one, (which is properly pleaded and apposite to the charge,) Is sufficient to support a similar flnd- 576 Ing on the charge, and— like a conviction on one good count of an in- dictment — to support a sentence. But to And Not Guilty, (or Guilty without criminality,) of the speciflca- tlon, or of all the specifications where there are several, and then Guilty of the charge, Is an inconsistent and Incongruous verdict, since the finding on the specification or specifications deprives the charge of support,— leaves It wholly without substance,— and a finding of Guilty upon It is a nulUty In law." On the other hand, to find Guilty of the specification, but Not Guilty of the charge, may be a good and legal verdict. It is such where the facts set forth in the specification do not as stated, or under the circumstances as de- veloped by the evidence, constitute the military oflEence indicated by the charge. But where the specification is properly drawn, and the facts as averred therein must, if found, constitute sudi offence,- to find Guilty of the specification but Not Guilty of the charge is erroneous and contradictory, and such a find- ing will not support a sentence. Conflnning the plea. A familiar form of finding, (or rather of recording the finding,) upon a charge or specification, where the finding Is the same as the plea, is by confirming, as it Is Expressed, the plea. But this form has no further or other effect than a simple finding of Guilty or Not Guilty as the case may be." Eacpression of acquittal. Where the accused is found Not Guilty on the charge or charges, it is usual to add In terms that he is acquitted. This Is In- deed unnecessary, since the findings as made fully acquit the party in law ; " but the form is now so well recognized that to omit it in any case would be exceptional and invidious. GUILTY WITHOUT CMMINALITY. Usage has given sanction to a form of finding on a spedflcation, of "Guilty but without criml- 577 nality," or " attaching no criminality ; " or In terms to such effect." It Is principally resorted to where the accused is found to have com- mitted the acts or done the things alleged in the specification, but without the guilty Intent or knowledge essential to constitute the military offence charged. Such finding will of course properly be accompanied by a finding of Not Guilty of the charge, unless Indeed there be in the case some other specification upon which an unqualified finding of Guilty has been arrived at. This finding, how- ever, is not one to be encouraged. It is virtually a form of acquittal,"* being a determination that the accused is not guilty in law. It will therefore be 2* Digest, 408. 6. O. 60, 107, Army of the Potomac, 1861; Do. 95, Id., 1862; Do. 53, Dept. of the East, 1865 ; Do. 6, Dept. of Cal., 1865 ; Do. 9, r>ept. of the Gulf, 1873. '" The form, that the court "confirm the plea of the prisoner," (without adding specifically that they find Mm Guilty or Not Guilty,) Is expressly condemned by the reviewing authority in a case in G. O. 43, Dept. of tlie South, 1871. " See McNaghten, 159. " A more exact form would be that they " find the facts set forth but attach no crimi- nality thereto." G. O. 11 of 1851 ; G. CM. O. 30 of 1886 ; Do. 69, Dept. of the Mo., 1869. So in the Navy — " Proved without criminality." =" Clrc, No. 4, Dept. of Pa., 1865. This form of finding has sometimes been resorted to where the accused has been found to have been insane or mentally deficient at the time of the offence. See Instances In G. O. 13, Northern Dept, 1864 ; Do. 52, Dept. of the Gulf, 1862 ; Do. 49, Dept. of the Susquehanna, 1864. Properly, In such cases, the accused should be acquitted — the ground of the acquittal being specified ; or the pro- ceedings should be suspended, without making any finding, as Indicated in Chapter XX — " Where the accused Is Insane." 380 MHUTABY LAW AMTJ PEECEDENTS. more legally accurate, as weU as more military and more just to the accused, to express and record the finding simply as " Not Guilty." " NOT PBOVEN. This refinement, derived from the Scotch law, though at one time somewhat resorted to, is no longer sanctioned in either the English or American military practice." While, as a substitute for " Not Guilty," this form may in some cases express more nearly than the latter the actual opinion of the court, it yet lacks the directness and conclusiveness desirable to be attached to the judgments of a court-martial, and, because of its ambiguity, can hardly fail to have a sinister and Injurious effect upon the reputation of the accused. It is also objectionable as countervailing the legal principle that a man is to be held to be innocent till he is duly proved, i. e. proved beyond a reasonable doubt, to be guilty. This finding Is, however, in conimon use in the naval practice." 578 PABTIAL FINDING. This term implies a much more considerable authority than does the term " partial verdict " in the civil procedure." The different kinds of partial findings recognized at military law are as follows : — I. Finding with Exceptions — ^In Speciflcations. Where a court-martial determines that the accused is guilty of a speciflaation but not precisely as- laid, that is to say is guilty of a part but not of the remainder, or ia guilty of the substance of the entire specification but not of certain details. It may, and it Is its duty, in convicting him thereon, to. except specifically from the finding of Guilty such portions as are not proved, and thus declare the exact measure of the criminality deemed to be established." Thus, it may find him Guilty of the facts set forth in certain of the averments, and Not Guilty of those set forth In certain other averments ; or It may find him Guilty of the specification as a whole except only as to certain designated words, amounts, articles, quantities, or other matters of description set forth therein." Having thus shaped its finding on the specification according to the proof, it may find the accused Guilty of the charge, provided of course there is enough left in the specification to support the charge. If so much has been excepted as not to leave enough to constitute the specific offence alleged, (or a minor offence legally included in It,) or if the effect of the exception has been to cause the specification to describe another and quite distinct offence from that designated by the charge, — a finding of guilty upon the charge can not be sustained, unless indeed there be in the case some other specification or specifications apposite to the charge upon which a substantial conviction has been arrived at. The most 579 simple and familiar Illustration of an exception detracting from the legal virtue of a specification is the excepting by the court of the word =• G. C. M. O. 30 of 1886 ; Do. 9, Dept. of the Mo., 1890. *> Kennedy, 195 ; Simmons § 625 ; Griffiths, 76 ; Bombay R., 31 ; O'Brien, 267 ; De Hart, 182 ; Benft, 133 ; Copp^e, 83. « See Commander Mackenzie's Trial, also current G. C. M. O., Navy Dept., passim. A -rariation of this form, often occurring. Is — " Not proved in part," (specifying what part ;) or " ProTed except " certain words or allegations, (specifying or Indicating the same,) "which words are not proved." As to SuteHtutiona, see post. " See 1 Bishop, C. P. § 1009. " See Digest, 409 ; De Hart, 181 ; O'Brien, 264 ; G. O. 69, Army of the Potomac, 1861 ; Do. 34, Dept. of the Cumberland, 1867 ; Do. 2, Id., 1870 ; G. C. M. O. 59, Dept. of Texas, 1872. This form of finding is now adopted in the British law. See Rules of Pro- cedure, 43. " Cases of extended exceptions may he noted in G. O. 43, 159, 282, of 1863 ; Q. C. M. O. 160, 170, 191, of 1864 ; Do. 303, 565, 607, of 1865 ; Do. 19 of 1885. MILITAEY LAW AND PRECEDENTS. 381 or words which express the gravamen of the offence in law. As where the charge Is Violation of the eoth Article of war, and the specification alleges the "knowingly" presenting of a fraudulent claim upon the United States: here, if the court, in convicting upon the specification, excepts the word "knowingly," it acquits the accused of the gist of the offence, and cannot, (upon such finding alone,) legally convict him under the charge."' Such instances, however, are now rare, while exceptions which yet leave the substance of the specification unafCected are frequently and judiciously resorted to in the practice of our courts-martial. In charges. What has last been remarked has reference only to the sped- ficatwn, occasions for making exceptions in charges being seldom presented. It is only indeed where the charge is inartificially and faultily drawn, or is " double," or expresses more than the offence found, that an exception therein would be Ijkely to be made. Thus in a case published in Orders of the War Department where one of the charges was " Embezzling and misapplying mili- tary stores," the finding of. the court thereon was " Guilty, excepting the words ' embezzling and.' " *" Where the charge is duly worded according to the terms of the Article of war upon which it is based, it is properly indivisible, and an exception of any part made in the finding will not be legitimate. Thus where the charge is " Conduct unbecoming an officer and a gentleman," to except from the conviction thereon — ^as was done in some early cases " — the words " and a gentleman," and find the accused guilty of conduct unbecoming an officer only, (or of "unofficerlike conduct,") would be irregular and unauthorized." 580 The latter is not an offence specifically known to the military law, and if, in such a case, the court do not consider the conduct to be unbecoming a gentleman as well as an officer, they should either acquit the accused alto- gether, or find him guilty of " Conduct to the prejudice of good order and mili- tary discipline." 2. Finding with exceptions and substitutions. The authority of a court- martial to make a partial finding is not limited to the mere making of excep- tions.- Where, while the allegations in a specification are substantially made out, certain items therein are not precisely proved as averred, the court, in excepting the same, may substitute the true facts or details as established by the evidence. As, for example, where sums of money, numbers of things, kinds of quantities of articles, species of military stores, &c., words spoken, names of persons, dates, or places, have been incorrectly set forth in the specification, and the true particulars have been disclosed in the course of the testimony on the trial; in such cases the court, in its finding of Guilty, may and properly will except the erroneous and substitute for them the correct statements or « See the point illustratefl In G. 0. 28 of 1859 ; Do. 34, Dept. of the Mo., 1863 ; Do. 20, 54, Northern Dept., 1864; Do. 28, Dept. of the N. West, 1865; Do. 11, Dept. of the Cumberland, 1867 ; Do. 41, Dept. of the Platte, 1870 ; also Digest, 409. " G. O. 341 of 1863. As to the loose joining of embezzlement, misappropriation and misapplication in charges under Art. 60, see post. Chapter XXV. "As in the case of Captain S. T. Dyson, where this finding was approved without comment. Am. S. P., Mil. Af., vol. 1, p. 588. "This finding, which had been previously sometimes made by courts-martial, (as In Capt Dyson's case, G. O., Tenth Mil. Dlst., Nov. 17, 1814, where it waS approved without remark by Maj. Gen. Scott,) was finally condemned and discontinued, as a finding neither of a lesser Included offence nor of any offence known to military law, hy Q. O. 8 of 1856. And see G. O. 48, Dept. of Dakota, 1871 ; De Hart, 373 ; O'Brien, 161. 382 MILITARY LAW AND PBECEDBNTS. words of description.*" The authority to make substitutions is subject to the same conditions as the authority to make exertions, viz., that the specification shall not he rendered legaUy defective, or the nature of the offence so modified that the finding upon the specification will not support a conviction upon the charge. In regard to the authority to except and substitute in findings, it may be remarked that it is certainly one of no little practical value and convenience. By its exercise defects in the pleadings may to a considerable extent be 581 remedied, and variances between the pleadings and the proof be in the main cured. Moreover, the finding is thus made to correspond with the precise facts of the case, justice to both sides is more nearly done, and the accused is the more effectually protected against a second prosecution based upon the same transaction. It is of course always desirable in military cases that, where practicable, the charges and specifications should be so drawn, and the case so prepared, that the averments wiU accurately represent the facts, and the testimony will verify in detail the averments : where this can be done, It will rarely be necessary to qualify the findings In the manner Indicated. CONVICTION OF A LESSER KINDRED OFFENCE. This is a species of partial finding familiar to the civil procedure, and which at military law Illus- trates also the practice of exception and substitution. It Is properly resorted to where the ofCence charged is one which includes, as a necessary constituent, another offence of lesser gravity, and where the evidence — the accused hav- ing pleaded Not Guilty — falls short of fixing upon the accused the superior but shows him to have committed the Inferior offence. In such cases the court may find him Not Guilty of the offence charged but Guilty of the minor constituent." And it should so find, since otherwise the true degree of criminality in the case will not be pronounced, and the accused will escape conviction and punishment altogether; for if simply found Not Guilty of the major offence he is fully acquitted of the minor contained within it. Thus, under a charge of desertion, where the testimony, while shovring an unauthorized absence, fails to fix upon the offender the animus peculiar to de- sertion, the court may and properly will find him not guilty of desertion, but guilty of absence without leave, and this whether his plea has been to such effect or he has simply pleaded Not Guilty." Similarly, manslaughter " See Simmons § 852-855 ; Digsst, 409 ; and instances In G. 0. 41, 353, 375, 396, of 1863 ; Do. 5, 7, 53, of 1864 ; G. C. M. O. 314, 325, of 1864 ; Do. 356, 422, of 1865 ; Do. 187 of 1866 ; Do. 64 of 1888 ; Do. 21 of 1889 ; Do. 24, Dept. of Texas, 1890. A similar form Is frequently observed In the naval practice. Thus, in G. C. M. O. id; Navy Dept., of 1889, is the finding — " Proved except," or " Proved in part — ^proved ex; cept," (indicating certain words,) " which words are not proved, and for which are sub- stituted the words italicized," (in the specification as published,) " which words are proved." And see instance In G. C. M. O. 82, Id., of 1892. " See Adye, 214 ; Tytler, 321 ; Simmons § 622 ; Kennedy, 185 ; Maltby, 72 ; Macomb, 63 ; O'Brien, 265 ; De Hart, 185 ; Diodst, 410. And compare Grant i;. Gould, 2 H. Bl.j 69; Reynolds v. People, 83 Ills., 478 ! Bankhead v. tJ. S., 20 Ct. CI., 405. Note also the similar authority given in criminal cases In the United States courts, by Sec. 1035, Rev. Sts. »13 Oplns. At. Gen., 480. Where an accused deliberately and intelligently pleads Guilty to a charge of desertion, he cannot legally be convicted of absence-without-leavc under it. See G. O. 231, Fifth Mil. DIst., 1869 ; Do. 24, Dept ol the Platte, 1871. MILITAEY LAW AND PBECEDENXS. 383 582 may be found under a charge of murder, larceny under robbery, and an attempt to commit an offence under a charge for the offence Itself." Wherever a lesser offence is thus found, the findings upon the specification and the charge should be so framed as to be consistent, and the finding on the specification should be such as to support the finding on the charge. With this view, there should properly be excepted from the specification such words as In law characterize only the superior offence. Thus, in finding manslaughter under a charge of murder, the aUegation of malice aforethought in the specifi- cation, should be in terms excepted from the finding of Guilty thereon, and as to this the accused should be found Not Guilty. So, where, under a charge of desertion, the specification sets forth that the accused "did desert," &c., the court, if proposing to find Not Guilty of desertion but Guilty of absence-without- leave, should, from the finding of Guilty upon the specification, except the words alleging or describing a desertion; otherwise the two findings will be inconsistent. And, in so excepting, the court should further substitute the words — "did absent himself without authority," or other words properly de- scriptive of the real offence."" It need scarcely be noted that while a court-martial may always convict of a lesser kindred offence. It is not empowered to find a higher or graver offence than the one charged, nor an offence of a different nature." Murder 583 cannot be found under a charge of manslaughter, nor robbery under a charge of larceny ; nor, on the other hand, can burglary be found under an indictment for larceny or arson. Similarly, drunkenness on duty cannot legally be found under a charge of simple drunkenness or disorderly conduct, nor can conduct unbecoming an officer and a gentleman be found under a charge of drunkenness on duty." And this though the evidence clearly shows that the greater or the distinct offence was the one actually committed; for a party cannot be convicted of an offence of which he hag not been notified that he Is charged and which he has had no opportunity to defend. CONVICTION XrNDEB ONE ABTICLE OF WAR OF A VIOLATION OF ANOTHER ARTICLE — Conviction of Conduct to the prejudice of good order and military discipline, under a specific charge. Though at one time otherwise ruled," it is now fully settled by the uniform practice of the service that where the charge Is of one of the specific designated offences made punish- able by the Articles of war other than the general, or 62d, Article, and the evidence fails fully to sustain the charge as laid, but fixes upon the accused a neglect of duty or disorder as involved In the acts alleged In the specification, the court may properly find him Guilty of the specification, (with such excep- ^ See Dynes v. Hoover, 20 How., 79, where the finding, hy a naval court-martial, of an attempt to desert, under a charge of desertion, 'appears to be recognized as legiti- mate. And see with this the case of Bankhead v. V. S., 20 Ct. CI., 405. This finding is now expressly authorized by the British Army Act, Sec. 56. In Prindevllle v. People, 42 Ills., 217, the court, in affirming a conviction of assault with intent to commit rape under an Indictment for rape, remark, generally, that — " Where the prosecution must prove every fact necessary to constitute the lesser offence, together with the additional facts which make It the higher offence, in order to justify a conviction for the latter, then a conviction may be had for the lesser offence under an indictment for the greater." "Digest, 410. A simple finding, under a charge of desertion, of "Not Guilty but Guilty of absence-without-leave," unaccompanied iy any exceptions or substitutions, though irregular and exceptional at military law, would yet be legal and ettectual. Compare Morehead v. State, 34 Ohio St., 212. " Kennedy, 185 ; Simmons § 700 ; Maltby, 72 ; Macomb, 63 ; O'Brien, 265 ; Digest, 410. « See G. C. M. O. 6^ Dept. of the Gulf, 1876 ; G. O. 14, Army of the Potomac, 1864. " In G, O. 17 of 18B6 ; Do. 28 of 1859. 384 MILITAKY LAW AND PKECEDENTS. tions, &c., as may be required,) and Not GuUty of the charge but Guilty of Conduct to the prejudice of good order and miUtary discipline." This finding, of an offence In violation of the general Article under a charge for a violation of a specific Article, was first sanctioned vrhere the charge was "Conduct unbecoming an officer and a gentleman," in violation of Art. 61, and is stlU most frequently resorted to thereunder."* It has since, however, been extended to all cases of charges of spedfio offences made punishable 584 by the code, having been especially applied to such as Disobedience of Orders, Disrespect to a cwnmandlng officer, Mutiny, Misbehaviour before the enemy, Breach of arrest, Violations of Art. 60, and— In time of waiv-Viola- tlons of Art 58. The legal theory upon whidi this form is based is that it Is a finding of a lesser included offence, every specific offence being viewed as Including either a neglect of duty or a disorder m breach of dUdpJme; and it Is resorted to in order to prevent the failure of justice which would in general be Incurred were it not availed of. It should not, however, be employed where the specific offence charged is substantially established beyond a reasonable doubt. For though it might be agreeable to the court to relieve the accused of some share of the culpability thus fixed upon him, such action would be an evasion of re- sponsibiUty on its part and a dereliction of duty under its official oath." Conviction of a specific offence under a charge of another offence. The authority," however, to employ this form does not extend beyond the cases above indicated. Thus the reverse of this finding— that is to say a finding of Guilty of a specific offence under a charge of *' Conduct to the prejudice of good order and military discipline" — Is not sanctioned, and, if made, would be disap- proved as a gross irregularity." Thus a conviction of a violation of Art. 21, (a capital offence,)- could not legally her made under a charge of a violation of Art. 62. And so of a finding of one specific offence under a charge of another specific offence. Thus findings of guilty of Conduct unbecoming an officer and a gentle- man under a charge of Drunkenness on duty, of guilty of Mutiny under a charge of Misbehaviour before the enemy, of guilty of a Violation of the 32d Article under a chSrge of Violation of the 33d or 40th," of guilty of a Viola- tion of the 33d Article under a charge of Violation of the 32d or the 21st," of guilty of a Violation of the 40th Article under a charge of Violation 585 of the 47th," and of guilty of Violation of the 17th Article under a charge of Violation of the 60th — have been properly disapproved as with- out legal sanction and inoperative. In such cases the accused is convicted of an offence not alleged against him or included in that alleged, — an offence of I" See G. C. M. 0. 8, Div. Atlantic, 1889. "See 18 Opins. At. Gen., 114; Swaim v. U. S., 28 Ct. CI., 173. The same form Is found in the Navy. See G. C. M. O. 29, 30, Navy Dept, 1882. A corresponding frequent naval form is that of a conviction In a less (feffree than charged. Thus, in a case of an accused charged with Drunkenness on duty, hut found to have heen drunk but not on duty, the formal finding would be — " GWlty in a less degree than charged ; guilty of drunkenness." ".G. C. M. O. 6, Dept. of the Platte, 1882. " G. C. M. O. 78, Dept. of the Mo., 1874 ; Do. 6, Dept. of the Gulf, 1876. "> G. C. M. 0. 24, Dept. of Texas, 1891. " G. C. M. O. 91, Dept. of the Platte, 1892. ®"A soldier may be guilty of this offence," (quitting guard,) "without absenting himself from his command, and therefore it contains no element of desertion." Gen. Schofleld. G. C. M. O. 53 of 1888. MTT.TTARY LAW AJSX) PBECBDENTS. 385 which he has had no notice and to which he has not been called upon to plead or to make defence." It may be added that a finding under a specific Article may be sustained as a valid finding of " Conduct to the prejudice of good order and military dis- cipline," though not formally so expressed, if it be in substance an equivalent As where, under a diarge of a Violation of Art. 21, the finding is Not Guilty but Guilty of " insubordination," or where under a charge of Drunkenness on duty in violation of Art. 38, the finding is Not Guilty but GuUty of " simple drunkenness." " Such forms, however, are now rare. COITVICTION OF A LESSEB DEGBi:!: Oft OftADE OX* A CftlUINAL OFFENCE. While the military law does not recognize grades or degrees of criminal offences cognizable by courts-martial, such courts, when passing judg- ment, in time of war, upon crimes of the class specified in Art. 58, have in a few cases made findings of a lesser degree of the crime charged. So, military commissions, when acting as substitutes for the State courts under the Recon- struction Laws, have sometimes made similar findings. Such instances are now unknown in practice." HI. ADDITIONS TO THE FINDING. It Is a peculiarity of the military proceaure tnat a court-martial, in its judg- ment, is not confined to a bare acquittal or conviction, but may characterize or explain the finding, (or sentence,) or accompany it with animadversions, recom- mendations or other remarks, as follows : — 1. Thus, in pronouncing the accused Not Guilty, the court, in lieu of a simple acquittal, may " fullj/," or " honorably," or " fuUjf and honorably " 586 acquit These terms add nothing to the legal efEect of the acquittal, but are still occasionally employed, though less so than formerly."^ " Monor- aUy," according to the authorities," is not in general to be employed except in cases where the alleged offence is not merely a violation of military duty but one of which a conviction would have dishonored the individual— as, for ex- ample, conduct unbecoming an officer and a gentleman, misbehaviour before the enemy, embezzlement or other fraudulent act made punishable by Art 60. This and the other like forms, however, should be reserved for exceptional cases, since their use, if more frequent, would detract somewhat from findings Of Not Guilty when expressed without such embellishment." "6 O 14 27 Army of' the Potomac, 1864 ; G. C. M. O. 8, Dlv. Atlantic, 1889 ; Do. 5T, Itept." of' the Platte, 1891; Do. 63. (H. A..) 1888; Do. 20 (Id.), 188T; Do. 123, Dept of Cal., 1882. "Plpon & Col., 154. ^ . ^ , , ,. "The naval form of " ChiUtv *«■ « '«»» degree than charged," has already been ad- vcrtfid to "MaJ Gens Schuyler, St. Clair, and B. Howe, were acquitted "with the highest honpnr." See 3 Journals of Congrpss, pp. 142, 168, T14. (December, 17T8. and January, 1782) Eecent cases of "honorable" or "full and honorable" acquittal are published in G C M. O 20 of 1885 ; Do. 69 of 1892, (a case of an enlisted man ;) Do. 125, Dept. of Cal.,' 1884; Do. 34, Dept. of Arizona, 1886. The form— "fully acquit." appears in Q. C. M. O. 29, Navy Dept., 1891. „„ „ ,. ,i -, m j « t "Simmons § 624, 625; Kennedy, 196; Griffiths, 77; Bombay B,, 31; Clode, M. L., 161-2 ; Maltby. 71 ; 0*BrIen, 268 ; De Hart, 182. " See De Hart, 182. 440593 0-42-25 386 MILITAItY LAW AND PBECEDBNTTS. 2. The court, in connection with an acquittal, may also reflect upon the charges as malicious, frivolous, vexatious, unfounded, &c.," or upon the accuser or prosecutor, (or prosecuting witness,) as actuated by personal animosity or other improper motive,™ or as equally culpable with the accused, or more culpable— recommending that he be himself brought to trial," or as offending against military usage by preferring stale or accumulated charges, &c." Such comments, however, are not now frequent in our practice, the court commonly leaving this class of criticisms to be made by the reviewing authority," 587 3. The court may antmad4>ert upon the statement or argument of the accused, (or judge advocate,) as being disrespectful or otherwise ob- jectionable in tone or particular language." It may also reflect upon any improper conduct, during the trial, of either of the parties, counsel, or wit- nesses, and may — in a clear case — ^remark upon the testimony of the latter as inspired by personal feeling or prejudice: comments, however, upon civilian witnesses and persons will naturally and properly be more guarded than need be those upon members of the army. Where a witness is believed to have sworn falsely, the facts should be specifically brought to the attention of the review- ing commander.'* 4. Where the evidence has disclosed a defective state of discipline or an objectionable practice at a post, Ac, the court, in Its discretion, has sometimes remarlsed upon the same, recommending administrative chan'ges or reforms." 5. Courts-martial are sometimes induced to add emplwnations of their findings or to give the reasons therefor, especially where the same, in view of the character of the testimony, may appear to require justification. Such action, however, must in general be unnecessary and unadvisable." 6. Where Indeed the evidence or proceedings Indicate insanity or other mental Incapacity on the part of the accused, the court, in acquitting, (or convicting,) will properly state the facts, and may add such recomm.endation — as that the accused be discharged from jthe service, or committed to the Government Asy- lum — as may seehi to be called for." 588 Iiimitation of the authority. But — it may here be noted — ^whlle the court may sometimes properly recommend or suggest action to the reviewing commander, it may not itself assume to take action pertaining to his province. Thus where the court, in acquitting a soldier, directed that he " 2 McArthUr. 264, 266 ; Simmons | 703 ; Kennedy, 197 ; D6 Hart, 183 ; O'Brien, 268 ; O. O. of Not. 11, 1816, (MaJ. G«n. Oaioes' ca8« ;) Do. 8, Middle Dept, 1865. And see Jekyll V. Moore, 2 Bos. and Pull, (N. E.,) 341. In a G. O. of Nov., 1817, the court, in declaring certain charges to be "frivolous," adds that it attaches no censure to the ^dge advocate who subscribed them, sllace he had aone so merely ea omcio. " See cases In James, 36, 208, 266, 461, 727, also Simmons § 701, 702, (Cases of Lt. Col. Keating and Capt. Wathen ;) Hough, 604, 638 ; Kennedy, 170 ; Clode, M. 1*. 161 ; O'Brien, 268 ; De Hart, 183 ; G. O. 3 of 1853 ; (remarks of MaJ. Gen. Scott.) "2 McArOinr, 267; Delafons, 278. "James, 539. " Bee Chapter X — Thb Couuia, p, 200, note. »» Simmons 9 704; James, 461; O'Brien, 268; Lieut. Kennon's Trial, 63-4. "As to reflections upon the testimony or deportment of nitneesea, see James, 366, 539; Simmons S 706. (Case of Captain Theobald O'Doherty;) Kennedy 197- Hughes 85; O'Brien, 268; De Hart, 183-4. "Simmons § 702; Bombay E.. 58; O'Brien, 268; De Hart, 183. It Is preferable, however, that this should be done by the Beylewing Authority. See remarks of Presi- dent Cleveland in G. C. M. O. 27 of 1888. « See instances in G. O. 874 of 1863 ; G. C. M. O. 73, 74, 200, of 1864 ; and remarks of reviewing officer in G. C. M. O. 21 and 86 of 1889. "See Simmons S 590; Kennedy, 196; O'Brira, 266; G. O. 46 of 1824; Do. 36 of 1826- Do. 20, Western Dept, 1861 ; Do. 62, Dept. of the Gulf, 1862. MHJTABY LAW AND PBECEDENTS. 387 "i)e discharged from arrest and returned to duty with M« regiment." this addition was properly disapproved as transcending the authority of a court- martial. In cases where a cormiction is arrived at, any such additions as here speci- fied, If any are made, ate Inserted after the aentmce. Where the Finding arrived at upon a trial is one of conviction, the court will naturally proceed to the consideration of its aentence. As a preliminary, how- ever to such action, in cases of enlisted men. the court may at this stage be required to be reopened for the introduction of previous convicticma of the accused. BECEIVINa OF EVIDENCE OP PBEVIOXTS CONVICTIONS. This pro- ceeding, suggested by ttiat authorized in the British law, (Rules of Procedure, » 45.) was ingrafted upon our military practice by a ruling of the Secretary of War of February 15, 1886,'"' which was. by his direction, published in the form of an Army regulation. In General Orders, No. 41, of June 26, 1886." Its object was to ascertain, by an inquh^ Into his previous record, whether the accused was an old offender, with a view, if he were found to be such, of increas- ing the measure of his punishment and especially of inducing in his case a sentence of dishonorable discharge from the service. Such evidence would also Indicate, for the information of the reviewing officer, that he was. in the words of the regulation, "less entitled to leniency."" In the Army Regulations of 1889, this regulation was published as par. 1018. 589 This regulation, having been several times modified, was finally amended by G. 0. 16 of March 25. 1895, In which it appears in the following form :— "In every case when an offence on trial before a court-martial Is of a character admitting of the introduction of evidence of previous convictions, and the accused is convicted, the court, after determining its findings, will be opened for the purpose of ascertaining whether there is such evidence, and, if so, of hearing it. These convictions must be ptoved by the records of previous trials, or by duly authenticated orders promulgating the same, except In the cases of conviction by summary court, when a duly authenticated copy of the record of said court shall be deemed sufficient proof." Charges forwarded to the authority ordering a general court-martial, or submitted to a summary, garrison, or regimental court, must be accompanied by the proper evidence of such previous convictions as may have to be considered in determining upon a sentence." As to the efficacy of the evidence of previous convictions in inducing or increasing punishment, G. 0. 16 of 1895 declares as f oUows : — " When a soldier shall be convicted of an offence the punishment for which, as authorized by Article II of this order or the custom of the service, does not exceed that which an Inferior court-martial may award, the punishment so authorized may be increased by one-half for every previous conviction of one or more offences within eighteen months preceding the trial and during the current enlistment ; provided that the Increase of punishment for five or more previous convictions shall not exceed that thus authorized when there are four previous convictions, and that when one or more of such five or more previous "> G. O. 60, Army of the Potomac, 1861. ^Such evidence is of course offered only after a finding of Quilty. It cannot be introduced where there has been an acquittal. See Q. C, M. O. 18, Div. Atlantic, 1891. "Clrc. No. 1, (H. A.,) 1886. " This evidence had previously In' a few cases been Introduced, without sanction of law. See note on page 650, edition of this work of 1886. "See Clrc. No. 1. (H. A.,) 1886. « Compare Clrc. No. 12, (H. A.,) 1891, par, II. 388 MILITABY LAW AND PKECEDEKTS. convictions shaU have been by general court-martial, or when such convictions shall have occurred within one year preceding the trial, the limit of punishment shall be dishonorable discharge, forfeiture of all pay and aUowances, and confinement at hard labor for three months." " When the conviction is of an offence, punishable under Article II of this order or the custom of the service with a greater punishment than an in- 590 ferior court-martial can award, but not punishable with dishonorable discharge^ the sentence may, on proof of five or more previous convic- tions within eighteen months and during the rarrent enUstment, impose dis- honorable discharge and forfeiture of all pay and aUowances in addition to the authorized confinement, and when this confinement is less than three months it may be Increased to three months. " When a non-commissioned officer is convicted of an ofCence not punishable with reduction, he may, if he shaU have been convicted of a miUtary ofEence within a year and during the current enUstment, be sentenced to reduction, in addition to the punishment already authorised." The " Order " of 1895, as will be perceived, is mandatory in terms, (" the court • • * ipill he opened," &c.,) and it should therefore be strictly com- pUed with." Copies of records introduced in evidence may of course' be con- tested by the accused, as to the genuineness or correctness of the record," but should not be rejected for immaterial and presumably clerical errors in the copy." The Order requires that orders of promulgation introduced in proof of con- victions shall be " duly authenticated." They should therefore be attested by the signature of the Commander or of bis adjutant general or other staff officer, or by that of the Adjutant General of the Army. If not duly authenti- cated, they should not, until the defect be remedied, be received by the court; ^ unless, being apparently genuine on their face, the accused may waive a formal authentication. Although the Order, (unUke its predecessor, G. O. 21 of 1891,) does not in terms require that the orders of promulgation shall show "the exact offences of which the soldier waa convicted," it is clettr that such an order should exhibit specifications as weU as charges where the specific offences are not fuUy indicated by the latter alone." 591 The conviction, whether exhibited by a copy of the record of trial or by an order of promulgation, must appear to have been duly approved." The evidence of the convictions need not be speclficaUy referred to the court by the convening commander : it is sufficient If they come to the hands of the judge advocate with the charges, or are obtained by him from the proper omclal." As to the proof of previous convictions «n trials by gummary courts, it is pre- scribed by Circular No. 2, of 1892, as follows : — " It Is the duty of the officer who brings charges before a summary court for trial ta submit evidence of previous convictions, or to cite them when the convictions have been by the same court But when evidence of previous convictions- ia not thus submitted or cited, the •• See the recent Clrc No. 7, (H. A.,) of June 1, 1895. " Q. C. M. O. 38, Dept. of Texas, 1892. "G. C. M. O. 38, Dept of Dakota, 1892. •" G. C. M. a 88, Dept of the Platte, 1892. "Q. C. M. O. 49, IMy. Atlantic, 1887; Do. 10, Dept. of Texas, 1888. IJ need hardly be noted that, as held in Do. 21, Dept of Arlsdna, 1891, the " statement " requited by par. 1015, A. R., cannot serve as evidence of previous convictions. See Clrc. No. 13, (H. A.,) 1890. •>Cir. No. 14, (H. A.,) 1890; G. C. M. O. 20, Mr. Atlantic, 1891! Carc. No. 10. Dept. of Arizona, 1892. » Circ. No. 10, (H. A.,) 1893. " G. C. M. O. 44, Dept of the Bast 1892. MILITAEY lAW AST) PBBCEDBNTS. 389 officer acting as the court may take judicial knowledge of what appears upon the records of his own court" Objections to introduction of this evidence. When the above-mentioned Army Regulation, par. 1018, was originally published, sundry objections were made to It which were all more or less reasonable and cogent. These, mainly, were— 1. That the proof of the previous convictions tended to prejudice the court against the accused in adjudging the sentence: 2. That the introduction of such evidence, in making apparent that there had been a conviction, was at variance with the spirit of Art. 84, which requires the members to make oath that they will not disdose any votes or opinions of members : 3. That the regu- lation, in contravention of an estabUahed rule of evidence, substantially author- ized the introduction of evidence of bad character before due foundation had been laid therefor by the introduction of evidence of good character on the part of the accused : 4. That it intrenched upon the province of the reviewing officer, by whom alone, not by the court, such evidence could properly be entertained. The regulation, however, having now assumed a mandatory form, such objec- tions cannot profitably be raised in practice. In the opinion of the author in- deed, the rules laid down as governing the introduction of these convictions are artificial and confusing, and the convictions themselves are much more 592 appropriate for the consideration of the reviewing authority than for that of the court. A regulation confined to a requirement that such in- formation should be submitted to the commander, for examination in connec- tion with his review of the proceedings of the trial, would, It Is believed, be more in harmony with the principles of the law of evidence and vrlth justice than the present mandate. CHAPTEE XX SEITTENCE AND PUNISHMENT. 593 The Finding having been completed, and having resulted in a con- viction upon the Charge or upon some one at least of the Charges where there are several, or In a conviction of a lesser ofCence included in one charged,— and, (the case being one of an enlisted man,) the proper evidence of previous convictions, if any, have been introduced,— the court next proceeds to adjudge the Sentence, i. e. to affix a penalty or penalties for the oflEence or offences found.* The subject of this Chapter will be conveniently presented under the fol- lowing heads : — I. The Course of Proceeding. II. Classification of Sentences. III. Principles governing the imposing of Discretionary Sentences. IV. Principles governing the framing and substance of the Sentence in general, v. The specific punishments separately considered. VI. Prohibited and Disused Punishments. 594 VII. Remarks with Sentence, and Recommendation. VIII. Disciplinary Punishments. I. THE COURSE OF PROCEEDING. VOTING AND DELIBERATION. Where the Article or Articles of war, under which the accused has been convicted, is or are mandatory in expressly requiring a certain punishment or punishments specified to be imposed upon conviction, the office of the court simply is to cause the legal sentence to be entered of record by the judge advocate, no discretion being allowed and no deliberation or vote being called for. In cases, however, in which the sentence is left by the code to the discretion of the court, the members, the verdict be- ing completed, commonly proceed at once to vote for a punishment or punish- ments, in the manner usually observed upon the Finding, and already indicated. * The term " Sentence " Is now uniformly applied In practice to the formal designa- tion by the court of the punishment or punishments. In the Kesolutions of the Conti- nental Congress, (see 3 Journals, 144, 158, 714; 4 Id., 268,) "sentences" of acquittal are sometimes referred to, the word sentence being employed as a general term equiva- lent to judgment. So, in the record of Gen. Wilkinson's trial, in 1811. And note a eimilar use of the word in cases reported by James, pp. 281, 462, 463, 471, 639, 760, 786, 791, 794, 820, 823 ; also In ease cited by Simmons § 563. In the General Orders of the period of our Revolution, a sentence of court-martial is often designated as an " opinion." See Washington's Newburg G. O. of May 2, of May 12, and of August 28, (Maj. Gen. McDougall's Case,) 1782 ; also G. O. of Oct. 31, 1780, &c. It was evidently appreciated at this early day that a sentence of a court-martial was no more than a submitted estimate or recommendation, 390 MILIXAKY -LAW AND PBECEDENTS. 391 The court may of course take an adjoummmt between finding and sentence if deemed proper aod expedient. The voting may be either oral and open, beginning with the " youngest In commission" of the members as directed In Art. 95; or in writing and secret, the member's name not being appended to his vote. The latter form Is, except in simple cases, that usually pursued: it is also in general the preferable one, not only because, the votes of Individuals not being known, there can be no danger that the opinion of a senior member wlU unduly Influence that of a junior, but also for the reason that the different awards, combining as they may several distinct p«ialties, wiU,, when expressed In vrrlting, be the more definite and explicit and the more readily compared. The ballots— the judge advocate being excluded at this stage— ate properly collected by the president, and counted and their contents or result announced by him. Where no punishment Is found to be concurred in by a majority upon the first vote, further votings are to be had until— if practicable— some final sentence comes to be approved by a majority of the members present." After the first vote, or at any other stage of the voting, the members, 595 with a view to the reconciling of differences of opinion, may engage in such discussion as may be desirable; and here, as upon the Finding, the equality of the members is to be preserved, a junior being entitled to the same freedom of expression and the same consideration as a senior. Where the sentences originally voted are found all to differ, it has been an approved practice for the court to proceed to vote upon them In succession, beginning vnth the least severe, imtll one of them receives the vote requisite for its adoption.' A majority of the votes may sometimes be found to concur in some one penalty or more : in such a case the proceedings wlU be simplified by treating such penalty or i>enalties as agreed upon ; the voting being then resumed upon the other propositions. The practice which has prevailed somewhat In British courts-martial of voting — ^wheh opinions differ — ^first upon the species of the punishment, and then upon the quantum* has not been common with us, but may of course be resorted to if thought proper. It may be remarked in4eed that neither law nor regulation has prescribed any special routine to be pursued In the making up of the sentence. The usual form, as above outlined, is thus subject to variation at the discretion of the court, which may indeed. If it see fit, dispense vritb voting altogether, and arrive at Its conclusions by a comparison of views in an Informal conversation. Case of joint accused. When two or more persons have been tried on joint charges and convicted, their sentences must be several, although the punishments awarded be the same. If the sentence be discretionary with the court, a separate voting or concurrence should therefore be had as to the sentence of each of the accused. lEAJOBITY AND TWO-THIBDS VOTES. The question of the selection of the sentence, or of any punishment, Uke all other questions arlsing'ta the pro- cedure of our courts-martial, is, (except in the single instance of the death penalty,) determined by a majority vote. In the excepted case two-thirds of the members present and acting must— as required by Art. 96— concur; i. e. 596 four of a court of five members, five of a court of seven, Mx of a court of nine, eight of a court of eleven, and nine of a court of thirteen. In all •Ab to the form In general pursued In voting upon the sentence, see Tytler, 811; Griffiths, 84 ; Hughes, 90 ; Maltby, 82 ; O'Brien, 269. •O'Brien, 270. t Simmons § 641 ; Griffiths, 84 ; Hughes, 91, 93 ; Manual, 531 ; O'Brien, 270. 892 MlLITAftT LAW Aim PEECHDBWTS. other cases a simple majority Is sufficient, as It Is necessary, to Impose a punishment. A tie vote, given where there Is an even number of members. Is futile and determines nothing. Where It occurs, the voting must be continued till a majority in favor of a certain sent«ice or punishment is obtained. The deliberation of voting need not of course be prolonged where, after re- peated votes or comparison of views, the difference Is found to be wreconoOable. In such a case the court, in lieu of coming to a formal sentence, can only enter upon the record the fact that th^ are whoUy unable to agree, and thus terminate the proceeding, subject to the action of the reviewing authority. Such a contingency would be most Ukdy to happen where — ^the sentence being discretionary — ^there was an even number of members : In any" event, however. It would be of rare occurrence. DtTTY OF MEKBEBS WHO ON THE TCStftSGr VOTED TO ACQTTIT. A marked diversity of opinion once prevailed upon the point whether the mem- bers, (where the sentence was discretionary,) were obliged to vote a sentence without regard to what may have been their vote upon the finding, — whether, in other words, those who had voted for an acquittal might not properly be excused from voting a punishment At the first impression it might seem un- reasonable and Inconsistent that a member, fully i)ersuaded that the accused was innocent, or at least that the evidence had failed to convict him beyond a reasonable doubt, and who had voted accordingly, in the minority, for an ac- quittal, should at the neit moment be required to adjudge that a specific punishment be imposed upon him as upon a guilty person. ■ But this apparent Inconsistency disappears when the principle is Recalled, which has heretofore been set forth as resulting from the fundamental rule of the government of the majority in court-martial proceedings; viz. jthat the finding, when completed, becomes the act and Judgment of the court as a wMt, the opinions of the ma- jority and minority no longer existing as such but being absorbed in the con- clusion of the whole. Where, therefore, the accused has been found guilty, the conviction is to be recognized and acted upon by each member as a fixed f act- as something which has passed out of the region of individual opinion and 597 become ascertained and concluded. Though he may have voted not guilty, he Is to vote upon the sentence precisely as If he had voted for-a conviction, or as If the fact of guilt had been determined by some competoit agency wholly independently of himself, and the rightfulness of such determina- tion was beyond question.' Further, he must not only vote a sentence biit— when the punishment is dis- cretionary — an adequate sentence, i. e. one commensurate to the offence or offences found. If, having voted to acquit, he gives his vote for a sll^t and inadequate penalty, he fails In his full duty as an officer and member of the court* SOME SENTENCE NECESSABY ON CONVlCTIOil. But though the sentence pronounced be inadequate, some sentence must always follow a con- ' See. on this subject, McNaghten, 117-129, and Kennedy, 198-206. tliese two authors being especially full and pointed ; also Simmons % 637-639 ; Griffiths, 81, 84 • Hughes f^' ^To?? ^^^= °'^''**"' ^*'' ^ °"*' 188-191; Lee. 155; Capt Barron's Trial. (Navy ) 333 ; Digest, 696. Simmons § 639, cites a case of a member of a court-maraal! who. having refused to vote a punishment after having voted to acquit, was himself bronght to trial for the neglect of duty involved. It is now expressly provided by the EagUsh Eules of Procedure j 68, that—" Beery member of a court must give Mt opinion on every question which the court has to deoide, and must give his opinion as to the sentence, notwithstanMng that he has given his opinion in favor of aeauittal" • See McNaghten. 125; also G. C. M. O. 163, Dept. Of the Mo., 1882; G. O. 68, (H A ) MnJTAEY LAW AND PBBCEDBTNTS. 398 victton. For a court, as has sometimes been done, to onrit to award a sentence for the expressed reason that the actual offence Is shown to have been a very sUght one, or that the crlmlnaUty of the accused was greatly palliated by the circumstances of- the case, or that he has been held for an unreasonably long ™o ^^^ . ^"^* ""^ confinement before trial, &c.,-is a marked Irregu- 598 larlty. And so of any mere direction as to the disposition of the accused, or recommendation as to his disposition addressed to the reviewing aumorlty ; such not being a sentence or properly a substitute for one. Where the accused has escaped. The fact that, pending the trial, the ac- cused has escaped from military custody furnishes no ground for not proceeding to a finding, and. In the event of conviction, to a sentence. In his case; and the court may and should thus find and sentence precisely as In any other instance. The court, having once duly assumed jurisdiction of the offence and person, cannot, by any wrongful act of the accused, be ousted of its authority or dis- charged from its duty to proceed fully to try and determine, according to law and its oath.* Where the accused is insane. Where indeed the evidence quite clearly shows that the accused was Insane at the time of the offence, whether or not the Insanity is specially pleaded as a defence, there can of course properly be no conviction and therefore no sentence. Where the fact is shown In evidence, or developed upon the trial, that the accused has become insane since the com- mission of the offence, here also the court will most properly neither find nor sentence, but will communicate oflicially to the convening authority the testi- mony or circumstances and its action thereon, and adjourn to await orders. In some Instances of this class the court had added a recommendation that the accused be discharged from the service,'" transcending however in so doing its strict province. COSTPSOIOISE OB CHAITCE SEITTEITCE. For the court to make up Its sentence by dividing the aggregate of the different quantities of punishment voted — as the terms of imprisonment, fines, or amounts of pay to be 599 forfeited — by the number of the members, and taking the average re- sult as the sentence to be adjuged, is clearly not a proper or military proceeding." Twyford " expresses the opinion that such a sentence is " Illegal " and " not the sentence of the court." More correctly, however, this form, though not affecting the validity of the judgment, would be an objectionable » See 6. O. 27 of 1835 ; Do. 12 of 1836 ; Do. 45 of 1864 ; G. C. M. O. 63 of 1874 ; Do. 8, Dept. of Cal., 1874 ; G. O. 20, Dept of the South, 1866 ; Do. 69, Dept. of Dakota, 1870 ; Do. 41, Dept. of Arizona, 1886. In a recent case published In G. O. 68, (H. A.,) 1894, the court, in finding the accused " Guilty," add — "And in view of the circumstances of the case, the court does not consider punishment necessary." The General commanding the army, in disapproving this action, observes — " The accused being found guilty of the charge, it becomes the duly qf the court to agree upon and award a sentence appro- priate to the offense, leaving to the reviewing authority — upon a proper representation of the facts through a recommendation to clemency or otherwise— to take such action as may seem to him demanded in the Interests of Justice." 'See post under bead of — "The sentence must constitute a. criminal Judgment." » Compare Meade v. Dpty. Marshal, 1 Brock, 824 ; Fight v. State, 7 Ohio, 180 ; McCorkle V. State, 14 Ind., 39; State v. Wamlre, 16 Id., 357. Upon the trial by military com- mission of Dodd and others, in Indiana, in 1864, the court, in the absence of Dodd, who had escaped, sentenced him to death, and Its action was duly approved by the reviewing authority. These authorities have been referred to in Chapter XIX on the point that the court may find under similar circumstances. » See Chapter XIX— "Additions to the Finding. 6." " Compare Wharton, C. P. & P. § 842. <* Guide Book, p. 20. 394 MILITARY LAW AISTD PRECEDENTS. Irregularity:" it is certainly very rare in practice. To determine upon a punishment by casting lots would be still more Irregular." AJJJOTTRinilENT AOT) RECONSIDERATION. In a case of importance, or where a conflict of opinion is developed upon a material question, It is always proper for the court to take an adjournment, pending its deliberation upon the sentence, in order that the members may hate an opportunity to reflect upon the Issues raised, consult precedent^ &C., or in order that the judge advocate may be enabled to prepare an opinion or statement of the law upon the point under discussion. So, too, after a sentence has been agreed upon, the court possesses the power to reconsider and modify the same at discretion, at any time before the trans- mittal of the proceedings to the reviewing ofiicer. This doctrine was substan- tially affirmed at an early period, (1819.) in private Williamson's case, where the action of a court-martial, which, having sentenced the accused to a term of confinement, adjourned and on the ensuing day reconsidered its sentence and substituted one of death, was held by Attorney General Wirt to have been authorized and regular." And the power to reconsider would extend 600 to the substitution, for the sentence, of a full acquittal, if deemed by the court just and proper.'* ENTERING TTP OP SENTENCE. The sentence having been completed, the court may properly be reopened and the case then formally adjourned as tried : this reopening after sentence, however, is not necessary, and in the ma- jority of cases is not resorted to. In either event, the sentence is given to the judge-advocate, (to whom, under Art. 84, it may be disclosed,) to be duly entered in the record for the action of the Reviewing Authority." II. CLASSIFICATION OF SENTENCB3S. DISTINCTION MADE BY THE ARTICLES OF WAR. The power of selection of punishment which a court-martial may exercise in imposing sen- tence depends upon the Article of war or other provision of law under which the charge is laid. It is now also further dependent upon the statute law and General Orders relating to maximum punislvments, presently to be noted. The penal code of the army, in providing for the punishment of military offences, either prescribes a particular penalty to be adjudged in the event of conviction, or (subject to the G. O. aforesaid,) declares that a certain penalty shall be imposed or such other as the court may direct, or, without naming any penalty, "See Simmons $ 642; Hough, (P.,) 793; Manual, 631. " Compare Wharton, C. P. & P. § 842 ; 1 Bishop, C. P. I 998 a. "1 Opinions, 296-9. This authority, as indeed indicated by Mr. Wirt, is analogous to thsJt wUch may be exercised by civil courts, of ftodifying sentences when not in accordance with law. Thus in Miller «, Finkle, 1 Park., 376, the court says : — " If, by inadvertence In pronouncing a sentence, a requirement of the statute has been over- looked, it may be corrected by the same tribunal before further action is taken. • • « The court has the right to expunge or vacate the first sentence and to pass a new sentence." And see 1 Bishop, C. P. § 1298 and cases cited. A court-martial, however, is not restricted to errors of law as grounds for reconsidering and modifying its sen- tence, but may change it for any other good reason — as that It is Inadequate, or too severe, or inappropriate to the nature of the offence. "That the same number of members need not take part In the reconsideration, pro- vided a quorum of the aatiie be prfesent — see 7 Opins. of Attys. Gen., 338. " In the British law, as lately as in the reign o* James TI, (see Art. 48 of his Code, in Appendix,) the presiding officer pronounced the sentence is open court, — as Is still done in the French conseils de guerre. MILITABY LAW AND PBECEDENTS. 395 simply leaves the matter of sentence to the will of the court. In the first case the sentence or punishment may be distinguished as mandatory; In the other two cases as discretionary. MANDATORY SENTENCES. The Articles of war which require that a certain specific punishment shall be imposed upon conviction are the 5th, 6th, 8th, 13th, 14th, 15th, 18th, 26th, 27th, 28th, 38th, 50th, 57th, 59th, 61st, 65th, 100th, and Sec. 1343, Rev. Sts. In imposing sentence for the ofEences made punish- able under these Articles, the province of the court is simply ministerial— to pronounce the judgment of the law. It has no power to a£Rx a 601 punishment either more or less severe, or other, than that specified: any different or additional punishment is simply a nullity and inoper- ative.'" If more penalties than one are prescribed for the ofCence by the statute, all are to be included in the sentence: if any one is omitted the sentence is illegal and of no effect." Where there has been a conviction upon several charges setting forth different offences for which different manda- tory punishments are provided, all must be embraced in the sentence. Where the conviction has been of offences for some one or more of which the punish- ment is mandatory, while for another or others it is discretionary, the mandatory punishment or punishments must certainly be affixed, no matter how widely or variously the court may further exercise its discretionary power of punishment in the same sentence. Indeed in all cases of punishments of the mandatory class, it is not the court which decrees the penalty but the statute; the distinctive function of the court practically terminating with the conviction. DISCRETIONARY SENTENCES. The Articles of war which leave the punishment to the discretion of the court, are the 3d, 16th, 17th, 19th, 20th, 21st, 22d, 23d, 24th, 26tli, 27th, 28th, 30th, 31st, 32d, 33d, 34th, 35th, 36th, 37th, 38th, 39th, 40th, 41st, 42d, 43d, 44th, 45th, 46th, 47th, 49th, 50th, 51st, 54th, 55th, 56th, 58th, 60th, 62d, 68th, eOth, 86th and 101st. EXTENT OF THE DISCRETION — Code of Maximum Punishments. The wide discretion here conferred extends not only to all punishments author- ized by military law and usage but also to the imposing of different punish- ments in the same sentence.'" For a long period also no maximum limit was prescribed, and — except in Art. 58, where it is declared that the punish- 602 ment shall not be less than that provided for the like offence by the law of the State, etc. — no minimum. At length, by an Act of Congress of September 27, 1890, enacted for the purpose of inducing something like uni- formity in the penalties adjudged by courts-martial In similar cases, it was provided that whenever by the Articles of war the sentence is left to the dis- cretion of the court, " the punishment shall not, in time of peace, be in excess of a limit which the President may prescribe." Accordingly, a code of maxi- mum punishments was prescribed by the President under this Act, for cases of ^ See DiOBSTj 696 ; G. O. 13, Dept. of the Susquehanna, 1864 ; Do. 5, Fourth Mil. Dlst., 1867. And compare Wharton, C. P. & P. § 752. u ^g — ^in tjie ciyii practice — " if a statute Imposes a fine and Imprlsoilment, both must be Infllctea." 1 Bishop, C. L. § 941. "Our law, (long settled on this point — see O'Brien, 276,) differs from the British, where, as it appears, two distinct punishments cannot, except when expressly authorized, be combined in the same sentence. Simmons § 687 ; Kennedy, 209. And see Army Act S 44. In a recent American case In which dishonorable discharge, forfeiture of pay and confinement in a penitentiary were combined in a sentence Imposed upon convictlor of a violation of Art. 62, the regularity and validity of the sentence were expressly affirmed by the Supreme Court. Em parte Mason, 105, U. S., 700. 396 MILITABT LAW AND PRECEDENTS, enUsted men, which was published in G. O. 21 of February 27, 1891, since amended by G. O. 16 of 1895. This code must be carefully considered by courts-martial in imposing sentence In such cases. The statute of 1890 and the Order prescribing the limits of punishments are set forth in the Appendix.'' This system of maximum punishments originated in an opinion, generally entertained in the army, that the punishments for desertion required to be ad- Justed and equalized. It was not originally contemplated that the scheme would be extended to other offences. In the opinion of the author, the present code, so far as it prescribes punishments for offences other than desertion, is artificial, complicated and embarassing In practice, and would preferably be amended and restricted to acts of desertion and a few other perhaps of the graver offences. It has been ruled in regard to the maximum punishments thus prescribed that, If awarded at all, they must be awarded as fixed and in their entirety." These punishments, it may be added, or lesser punishments of the same nature, are not necessarily adjudged where the case admits of some other penalty. Thus where there has been a conviction of two or more offences, for one of which the punishment is mandatory, the punishments for the others being discretionary, the sentence of the court will be legally sufficient If it contain no punishment other than the mandatory penalty or penalties. It may be repeated that the law prescribing maximum punishments applies to enlisted men only. The discretion as to punishment with which general courts-martial are Invested in cases of officers brought to trial before them, has been in no manner restricted otherwise than as defined In the Articles of war or by the usage of the service. 603 III. PRINCIPLES GOVERNING THE IMPOSING OF DISCRETION- ARY SENTENCES. THE SENTENCE IS TO BE BASED UPON THE FACTS AS FBOVED AND FOUND. The sentence should follow the findings and be a judgment upon the facts as found. Thus, proof of valuable service, general good char- acter, or other extraneous circumstances favorable to the accused but foreign to the merits of the case, (although sometimes properly considered upon the Finding as material especially to the question of intent,) cannot — strictly— be allowed to affect the discretion of the court in imposing sentence, but— If deemed to call for particular notice — should form the subject of a separate "recommendation" to clemency.^ In practice, however, the fact that the accused is shown to have had a good character or record in the service prior to his offence Is in general permitted to enter into the question of the punish- ment to be Imposed, and a court-martial will sometimes add to a light sentence the explanation that it is " thus lenient " because of such character or record. Regularly, however, the same is rather ground for mitigation of punishment by the reviewing authori ty than for a milder judgment on the part of the court." ^ See Circ. No. 10, Department of Arizona, 1892. ^ See Circ. No. 12, (H. A.,) 1892 ; G. C. M. O. 54 of 1S»2. a See G. 0. 20, Dept. of the Sontli, 1866 ; Do. 115, Dept. of the Mo., 1867 ; Do 15 16, Dept. of Dakota, 1868 ; Do. 69, Id., 1870 ; G. C. M. O. 163, Dept. of the Mo., 1882 And compare Simmons § 697 ; Harcourt, 146, 150. As heretofore pointed out, the sentence cannot of course be influenced hy facts not In evidence and known only to individual memhers. G. O. 20, Dept. of the South 1866 • Do. 8, Dept. of Arizona, 1874. ' ' "See, in G. O. 57, Dept. of Dakota, 1867, remarks of the Dept. Commander upon certain sentences as heing so inadequate as in effect to extend clemency and invade the province of the reviewing authority. MILITABY LAW AND PRECEDENTS. ^^ / '"^S?''^^'?^ ""^ ''°°°'''''^ °^ RELATIVE RANK OF OFEEND- fi04 J?,^- ^^^'^^ «i«'« are joint accused, different degrees of punishment 604 wiU often properly be called for, according to the parts, whether leadiTe or secondary, taken in the crin,inal transaction by the seVrraUndividuife Where a non-commissioned officer has been concerned with a private sSe; m the offence, and is Jointly charged and convicted with himf his sentence or manifest reasons should be more severe than that of his kssoclate. So! the sentence of an officer or non-commissioned officer convicted Hngly of a military offence should in general be more severe than would be that of an nferior under the same or similar circumstances. It is however to be noted that a punishment which affects military rank is in general a severe one, and the more severe in proportion as the rank is the higher, so that reduction in the case of a non-commissioned officer, or suspension in that of a commissioned officer, wiU often prove a more rigorous penalty than would a considerable term of imprisonment in the case of an enlisted man. The rank and office of the accused will thus properly enter into the question of the proper measure of punishment to be apportioned. DISCRIMINATION BETWEEN DEGREES OE CRIMINALITY. In ex- ercising its discretion as to the sentence, a court-martial wiU also properly discriminate between cases of persons tried and convicted by it, severally, of the same offence, where the degrees of criminality are shown to be materially different. In such cases the punishments should be different also, and to prescribe the same routine sentence in each instance is not a just or proper employment of the discretion devolved by the law." DISCRETION AS AEPECTED BY JtTRISDICTIGNAJ, GRADE OF OP- EENCB. The discretion of a general court-martial in adjudging sentence is not restricted by the fact that the offence of which the accused has been con- victed is one cognizable by, and ordinarily referred to, a garrison or regi- mental court. While the punishment is not necessarily to be any the more severe because the case has been sent to a superior rather than to an in- ferior court," it may yet properly exceed that which the latter could legally impose if the facts as proved are deemed to require it." 605 AS AFFECTED BY A FINDING OF A "LESSER" OFFENCE. Where a lesser offence has been found under the specific charge, the court cannot,, of course, impose a punishment legal only for the offence actu- ally charged ; ^ nor can it properly impose one as severe as that offence would justly have called for had it been found. DISCRETION AS AFFECTED BY THE LOCAL LAW. Except In time of war, in a case of one of the crimes specified in Art. 58, the authority of a court-martial as to the awarding of punishment is not controlled by the local law. Where indeed the offence found Is one which would also be punishable "Note remarks of Gen. McDowell in G. O. 18, Dept. of the South, 1873. "Manual, 54. " This simple point is noticed because of the erroneous view expressed thereon hy De Hart, 53, 64-5. " See G. O. 77 of 1837. 398 MILITAEY LAW AND PKECEDENTS. by the courts of the State, &c., in which it was committed, (or in which the trial is had,) the civil statute fixing the penalty may well be consulted as an aid in arriving at a reasonable measure of punishment for the miUtary crime. The court-martial, however, is in no respect bound by that statute but may affix such sentence as the interests of military discipline, as prejudiced by the offence committed, may be deemed to require, though in so doing it very considerably exceed the limit of the local law.* RESTRICTIOlir UPON THE EXERCISE OF THE DISCRETION. Wide as is the discretion as to the sentence which is reposed in a general court- martial by the 62d and the majority of the other Articles of war, the same is yet properly subject to such restrictions in regard to punishment as are prescribed by the Constitution, by the statute law governing the army, or by military usage.'" By Constitutional provision. The Constitution, in Art. VIII of the Amend- ments, provides that " excessive fines " shall not be " imposed, nor cruel and unusual punishments inflicted." This provision applies indeed only to the courts of the United States, but courts-martial, though, as we have seen, no part of the U. S. judiciary, and not legally bound by such provision, will properly observe it as a general rule of practice. 606 " Excessive fines." Fines at military law are adjudged mainly with a view to reimburse the United States for some pecuniary loss occasioned by the offence of the accused : the idea of punishment, however, of course enters into every fine, and a fine reasonably increased for the purpose of punishment above the amount required to make good the loss would not be subject to ob- jection. But a fine which should greatly exceed such amount, especially where the purposes of punishment were adequately answered by other penalties em- braced in the same sentence, would be liable to the objection of being " ex- cessive" in the sense of the Constitution. " Cruel and unusual punishments." Here, the word " punishments," dis- tinguished as it is from " fines," is regarded as referring mainly to such punish- ments as are corporal in their nature, namely such as impose restraint or suffering upon the body. As to the terms " cruel " and " unusual " — an unusual punishment may be said to be one not recognized by law or usage.'' Punish- ments may be rare without being unusual. Thus confinement on bread and water diet, and ball and chain, though now unfrequently imposed, are not " unusual " since they are still sanctioned by usage and not prohibited by law. Whether a punishment is to be stigmatized as cruel depends so much upon the nature and circumstances of the offence that no general definition of the word as here employed can well be framed. A punishment may certainly be harsh and severe, and even in a degree unmerited,*" without being cruel ; and perhaps as satisfactory an explanation of the term as can readily be given would be a punishment which inflicted an amount of bodily (or mental) suffering or in- jury out of all reasonable proportion to the full demands of justice.^ In pro- 's See Ew parte Mason, 105 U. S., 700. M See Simmons § 111 ; Kennedy, 208 ; Maltfcy, 100 ; De Hart, 68, 196 ; 10 Opins. At. Gen., 160. a U. S. V. Collins, 2 Curtis, 194 ; Barker v. People, 20 Johns., 458 ; Done v. People, 5 Park., 364 ; 1 Bishop, C. L. g 947 ; De Hart, 68 ; Ben^t, 43 ; 10 Oplns. At. Gen., 160. »= See 3 Opins. At. Gen., 632. « See De Hart, 69 ; 10 Opins. At Gen., 160 ; also Instance referred to in Digest, 697, and case in G. C. M. O. 24 of 1873^where a term of solitary confinement in a " dark cell," imposed in a sentence with other penalties, was disapproved as likely to impair the health of the prisoner, and so "amenable to the objection of being cruel and un- usual," And see People v. Norris, 80 Mich., 634. MILITABY LAW AND PRECEDENTS. 399 hlbitlng cruel punishments, the law doubtless had in view the punish- 607 ments involving torture or needless agony which were practised under the old English law and were the occasion, at a later period, of legisla- tion from which our constitutional provision was derived. This subject has recently been reviewed in the cases In which was considered the legality of the punishment of death as inflicted by the application of eleotriaity—gi method which, while " unusual," was held to be not " cruel." " By the statute law. The punishment selected must not be one either ex- pressly or Impliedly prohibited by the Articles of war or other statute. Thus Art. 96 expressly prohibits the imposition of the death penalty except in cases where the same Is specifically authorized by the code. Art. 98 expressly pro- hibits the punishments of flogging, branding, &c. Art. 97, by a necessary Impli- cation from its terms, and similarly the recent Act of March 2, 1895, c. 189, prohibit confinement in the penitentiary for purely military offences. The limitations, declared by Art. 83, upon the power of inferior courts to inflict punishment, are familiar to the service. By military usa^. This is the limitation recognized in Art. 84, by which members of courts-martial are required, among other things, to swear that, in cases not determined by express provisions of the code, they will administer justice " according to the custom of war in like cases." A punishment, observes Atty. Gen. Bates, " contrary to the usage of the service would for that rea- son be forbidden by law." " This usage has sanctioned in practice two classes of punishments, vin. certain ones adopted from the common law, (or civil statute law,) as fine. Imprisonment with or without hard labor, and disqualifi- cation to hold ofiice, and certain others peculiar or nearly so to the military service, such as cashiering or dismissal, dishonorable discharge, suspension, loss of files, forfeiture of pay, reduction and reprimand. A punishment recog- nized by the laws of a foreign country as appropriate for military offences, such as the banishment recognized by the French law," but which is 608 unknown to the usage of our service, would be illegal here." So of a punishment which, though once temporarily authorized by our own statute law, (no longer in force,) has never been recognized by our military custom — reduction of an officer to the ranks." And so of a penalty, formerly not unfrequently resorted to, but quite discountenanced by the existing usage — the imposing of miUtary service or duty as a punishment by sentence.™ "People V. Durston, People v. Kemmler, 119 N. T., 579, 586; In re Kemmler, 136 TJ. S., 447, (citing Wilkerson i>. Utah, 99 U. S., 135-6.) »• 10 Oplns., 161. And see 12 Id., 529 ; Bombay R., 36 ; Macomb, 61 ; De Hart, 196. » Code de Justice Mllitalre § 185. « See an Instance of this punishment In 3 Jour. Cong., 386. It has sometimes been adjudged by military commissions In time of war. See Part II. "* DiQBST, 653. And see post. ""Military duty is honorable, and to Impose it In any form as a pamshment must tend to degrade It, to the prejudice of the best interests of the service." Digest, 698. This punishment— to the form of imposition of extra guard duty, extra drill, &c or of an additional term of service, was declared by the Judge Advocate General, early in the late war, to be subject to grave objection, and hi^ views were adopted by the Secretary of War atid have been repeatedly followed In Orders. See «• 0- 3. aid G C. M O 329 of 1864 ■ Do. 7 of 1871 ; G. 0. 17, Dept. of the Mo., 1861 ; Do. 8, Id., ^864;' DO 'b6 irmy' of the Potomac, 1862; Do. 3, Dept of the N. West, 1864; Do^ 49 Middle Dept 1864; G. C. M. O. 26, Navv Dept., 1882. In a recent case, in g'c M O 61, Dept. of .Dakota, 1884, in which the court, In adjudging a period of confinement added, as a further todependent penalty, that the term of enlistment "c^^rshould be extended for a like pericd.-thls part of the s^tence is disap. oroved bv Gen Terry, who observes: "The term of enlistment m the United States army is flxelby Taw at five years, and there Is no law which authorizes a court- martCtopLongt^tperiod'of service. • • • The sentence of a court-martial 400 MILITABY LAW AND PKECEDENTS. Par. 1019 of the Army Regulations, In specifying certain punishments," (presently to be considered,) as legal for enlisted men, is but the expression of the usage or usages by which these punishments have been sanctioned. This paragraph, it may be remarked, is not viewed as necessarily restricting, at least in time of war, the punishments imposable upon soldiers to those designated ; " others— hereafter to be mentioned— being also regarded as still authorized by the custom of the service and usage of war. 609 IV. PRINCIPLES GOVERNING THE FRAMING AND SUB- STANCE OF THE SENTENCE IN GENERAL. THE SEHTENCE MXTST CONSTITXTTE A CRIMINAL JUDGMENT. This principle results from the very nature of courts-martial as tribunals invested only with a criminal jurisdiction and power of punishment." In the first place, therefore, the requirement of the sentence must amount to a putUshment; otherwise it is not only irregular but of no effect. Thus a sentence directing simply that the accused be " returned to duty " imposes no punishment, but the reverse, and is therefore no sentaice in law." And so of the form, adopted in one case, upon a conviction," — " to be confined in a lunatic asylum ;" such a confinement not being properly an imprisonment or a punishment at military law. In the second place the sentence cannot assume to impose any form of civil liability, whether in the nature of debt or damages. It cannot appropriate or dispose of the pay of an accused or impose upon him a fine, to the use or for the benefit of any individual military or civil, but can forfeit or adjudge the same to the United States only." Nor does the fact that the liability has grown out of a criminal transaction, as a liability for money or property stolen 610 or fraudulently or otherwise Illegally obtained by the accused, affect the application of the principle : in neither case can the court, by its sentence, wblch Increases the term for which a soldier has enlisted Is Illegal." Par. 1020, A, K., now specifically forbids — " sentences Impisslng tours of guard duty," adding.^ " The performance of the honorable and Important duty of guards should never be considered as punishment" " The punishments recited are — death ; confinement ; confinement on bread and water diet ; solitary confinement ; hard labor ; ball and chain, forfeiture of pay and allowances ; dishonorable discharge from service, and reprimand, and, for non-commissioned officers, also reduction to the ranks. « G. O. 9, Third MU. Dist., 1867. " See Chapter VI. "See G. O. 47, Army of the Potomac, 1862; Do. 5, 20, Dept. of the Bast, 1865; Do. 9, 63, Northern Dept., 1865 ; Do. 65, Dept. of Arkansas, 1865 ; Do. 5, Dept. of the Cumberland, 1866. " In a case in G. O. 49, Dept. of the Susquehanna, 1864. « G. O. 21 of 1851 ; Do. 2 of 1857 ; Do. 18 of 1859 ; G. C. M. O. 82, 478, of 1865 ; Do. 91, Dept of Va., 1865 ; Do. 4, Dept. of Texas, 1865 ; Do. 33, Dept. of Ala., 1866 ; Do. 87 Dept of the Mo., 1868 ; Do. 32, Fifth Mil. Dist., 1868 ; Do. 37, Dept of Dakota 1869 ;' Do. 10, Dept of the South, 1870; G. O. 33, Dept. of No. Ca., 1865; Do. 7, Dept of the Tennessee, 1866; Do. 15, Dept of the Miss., 1863; Harcourt 173; Digest, 414 418-9. And compare Warden v. Bailey, 4 Taunt, 78 ; O-Kelley v. Datham Rowe 462 •' Morris v. Whitehead, 65 No. Ca., 637. ' Pay cannot now be forfeited by sentence In favor of a " company tailor " or " com- pany shoemaker," to whom the accused may be indebted. (G. C. M. O. 30, Dept of the Gulf, 1876.) Nor can it now be forfeited or stopped to satisfy the dues of a " laundress." Nor can It legally be forfeited to pay a "post trader" for articles previously sold by him to the soldier, or in favor of the post exchange. MILITABY lAW AND PBECEDENTS. 401 require the accused to refund to the injured party or to reimburse him for his loss." Nor, further, can a court-martial, in imposing a pecuniary fine or forfeiture of pay, legally require, as has sometimes been done, that the amount shaU be refunded to, or paid into, a particular fund— as a hospital or company fund," or be expended for the use of sick soldiers, &c., or be allotted for the support of the family of the accused." Nor can it, in forfeiting the pay of a soldier, on conviction of having stolen a sum of money from a disbursing officer, require that the amount of the forfeiture shall be credited to the account of said officer with the United States." Further, a military court cannot condemn an accused to return a specific article of property to a person whom he has illegally deprived of the same ; nor can it sentence him to be imprisoned until he pays a certain anrount, or restores certain property, to a private individual.™ Thus a court-martial, in framing its sentence, can recognize no liability or obligation on the part of the accused except to the United States. THE SENTEITCE MUST WOT TBENCH UPON THE PBOV- 611 INGE or THE BEVIEWING AUTHORITY. The court, in its sen- tence, may not assume a duty or power belonging to the reviewing offi- cer or other commander. Thus, it should not attempt to execute its own sentence; as by adding to a sentence of dismissal of an officer — "and he Is hereby dismissed accordingly,"" or, to a sentence imposing a fine, that the same be enforced in a particular mode or by a particular official." Nor, for the same reason, is It authorized to direct in a sentence — as one of forfeiture for example — that the offender be "released from arrest, and returned or restored to duty; "" nor can it direct the assignment or transfer of a convicted soldier to a particular regiment or organization ; " or that a "G. C. M. O. 177, 186, of 1864; Do. 478 of 1865; Do. 63 of 1868; Do. 33, Dept. of tbe Bast, 1866 ; G. O. 22, 26, Middle Dept., 1865 ; Do. 37, Dept. of Dakota, 1869 ; G. C. M. O. 22, Dept. of the Mo., 1883. And see G. C. M. O. 10, Dept. of the South, 1870, in which a direction In a sentence that a portion of the pay of the accused he appropriated to indemnify the owner of property destroyed hy accused, was properly disapproved. Any appropriation of this class by a court-martial is in fact an assumption of legislative power. "Digest, 418-19; G. C. M. O. 91, Dept. of Va., 1865; Clrc. No. 9, (H. A.,) 1886. In G. O. 23, Dept. of Ala., 1866, a sentence imposing a fine, " to be appropriated to the use of the Freedmen's Bureau," was properly disapproved. In a case of a sentence, published in G. C. M. O. 217 of 1865, containing a forfeiture of the pay of a soldier, "to be appropriated for the benefit of the Soldiers' Home, if legal, and, if not, to be forfeited to the U. S. Government," It was properly directed by the reviewing authority that " the forfeiture of pay will be to the United States." It may be remarked that forfeitures, &c., of soldiers' pay, are appropriated for the benefit of tbe Soldiers' Home by operation of law, according to the provisions of Sec. 4818, Rev. Sts., and that any direction in a sentence In regard to such appropriation is unauthorized and surplusage. " Digest, 418 ; G. O. 2, Middle Mil. Div., 1865. " G. C. M. O. 7, Fourth Mil. Dlst., 1868. " G. O. 18 of 1859. "James, 630, 660, 661 ; Simmons § 669 ; De Hart, 197. "It would be especially irregular for a court-martial to direct a proceeding against a convicted party which it is for the civil authorities to initiate. Thus, In a case in G. O. 16, Mountain Dept., 1862, where, to a sentence imposed upon an officer for em- bezzlement, &c., it was added : — "And the court orders his property to be seized by the commanding officer of his post and held subject to future and legal disposition," this action was properly disapproved by the reviewing authority and tbe matter of the seizure " respectfully referred to the V. S. District Attorney for action." ""This is transcending the province of a court-martial." G. O. 47, Army of the Potomac, 1862. And see G. O. 65, Dept. of Ark., 1865, and other Orders noted under head of — ^"The sentence must constitute a. criminal judgment," ante, "G. C. M. O. 408 of 1864. 440S03 O - 42 - 26 402 MILITAEY LAW AND PKECEDENTS. soldier, sentenced to be dishonorably discharged, be furnished transportation to his place of residence;" or that a soldier deemed insane be confined In an insane asylum." A court-martial, in awapding the death penalty, need not and should not designate in its sentence any time or place for its execution ; " nor, in connec- tion with a sentence of imprisonment in a military prison or penitentiary, should it direct that the same be executed at a certain prison or place speci- fied : ^ these also are particulars properly to be determined by the reviewing officer. 612 Again, the court may not trench directly or indirectly upon the remit- ting or mitigating power of the commander. This is in fact done where the court — as has occurred in some instances — declares that, in view of the long confinement undergone by the accused while awaiting trial, or some other circumstance indicated, it awards no sentence.™ So, it is done, though less directly, where the court, because of the previous good record of the accused, or other extenuating circumstance foreign to the merits, is induced to adjudge a mild sentence quite out of proportion to the gravity of the offence committed. Sentences of this kind Indeed are not unfrequently resorted to, but, strictly, as indicated in a previous part of this Chapter, the court, in such cases, practi- cally invades the province of the commander, whose function alone it is to determine whether, for any cause, the sentence shall be mitigated or remitted." Further, a court-martial has of course no power to exercise, by its sentence, any discipline or authority over the accused beyond the limits of his punishment, or over any other person within the command. Thus where to a sentence of reduction to the ranks it was added by the court that the accused be precluded from holding any position as a non-commissioned officer for six months, such addition was disapproved as unauthorized, since the court could not prevent the regimental commander from promoting the accused if thought expedient." Similarly illegal was the action of a court, which, in imposing confinement 613 and forfeiture, upon a conviction for drunkenness, added in the sentence that the sutler should be ordered not to sell the accused " anything on credit " thereafter."* It need scarcely be added that any direction in a sentence which transcends the authority of the court, and encroaches upon that of the reviewing officer, " G. O. 44, Dept. of the N. West, 1863. " Q. O. 49, Dept. of the Susquehanna, 1864, cited ante. " Digest, 112 ; Tytler, 327 ; Griffiths, 87 ; De Hart, 196 ; also, as to the similar rule in civil cases. Com. «. Webster, 5 Gush., 407 ; 1 Bishop, C. Ii. § 951 ; 1 Id., C. P., § 1311. « See G. O. 9, 16, Dept. of Ark., 1865 ; G. C. M. 0. 12, 13, Dept. of the Col., 1882 ; Circ. 4, Dept. of Penna., 1865. ™In G. C. M. 0. 8, Dept. of Cal., 1874, in a case In which the court. In view of the long confinement of the accused prior to trial, concluded not to impose any punish- ment upon the conviction, the Dept. Commander, Gen. Schofleld, remarlied as fol- lows : — " It is the duty of a court in all such cases to decide upon and avrard a sen- tence which shall be appropriate to the offence of which the prisoner shall have been convicted, and to leave to the Eeviewing Authority — upon a proper representation of the facts through a recommendation to clemency or otherwise — to take such action as may seem to him demanded in the interests of Justice." And see a similar case in G. O. 69, Dept. of Dakota, 1870. "•In G. C. M. 0. 163, Dept. of the Mo., 1882, Gen. Pope, referring to the discretion of the court as to the awarding of sentence, says : — " It was never contemplated that the exercise of this discretion should usurp or encroach upon the pardoning power, re- siding only with the reviewing authority or the Chief Executive." And see Do. 8, Dept. of Cal., 1874 ; G. O. 57, Dept. of Dakota, 1867 ; Do. 20, Dept. of the South, 1866. " G. O. 10, Dept. of N. Mexico, 1865. " G. 0. 35, Army of the Potomac, 1862. MILITAKY LAW AND PRECEDENTS. 403 may be wholly disregarded by the latter in his action upon the case." He -will properly, however, expressly disapprove the objectionable portion. THE SENTENCE SH0T7LD BE CONSISTENT WITH THE FINDING. By this it is meant that the sentence moist not Impose a punishment not author- ized by the finding. Thus, where there are several charges, and the accused is acquitted upon some and convicted upon others, the sentence must adjudge only such punishments as are authorized for the offences of which the accused is convicted ; otherwise it will be inconsistent with the finding. So, where the finding upon a capital charge is Not Guilty but Guilty of conduct to the prejudice of good order and military discipline, a sentence of death will be inconsistent with the finding and therefore illegal, IT SHOTTLD DEFINITE AND UNAMBIGUOTTS IN TERMS. Where the punishment is one made mandatory upon the court, there need be no question as to the form of expressing the sentence ; it being proper and sufficient merely to specify the punishment by the word or words employed in the Article. Where the sentence is discretionary, the punishment or punishments selected by the court, (subject to the law of maxvmum punishments, in cases of enlisted men,) should be stated in simple, clear, and unmistakable terms, and with such pre- cision in regard to details as to convey the exact particulars intended to be conveyed by the court." Amounts of forfeitures and dues, numbers of 614 files to be lost, and periods— years, months," days," &c.— of imprisonment, suspension, &c., should be defined explicitly and with certainty. Where — as is usual but not essential— the name of the accused is repeated In the sen- tence, It should be correctly given, and In such form that there vsill appear no material variance between the sentence and the finding or charge." Further, where there are imposed two or more different punishments, the order of the execution of which wiU be material in affecting the status or rights of the accused, or the interests of the service or of dlscipUne, the sentence should be so framed as to indicate clearly the order ui which the punishments are Intended by the court to be executed. Thus where a soldier is sentenced « G. 0. 9, 16, Dept. of Ark., 1866. " "A sentence, like any other writing, must, to be valid, be in such terms that its meaning can be understood. And always tbe court should take especial care to make rtpreclse and accurate." 1 Bishop, C. P. S 1297. "The sentence must be definite eiact and peremptory." Wharton, C. P. & P. § 923. "It should obvious y be ^pressed in clear and u^bSaous language." Simmons 8 644. " So that the kind and degree of nunLhment shall be set forth definitely and precisely." De Hart, 196. A sentence of topriLTment that fails to fi? the term Is inoperative, and should be disapproved ""»Tn rhratenc^VTnrspecific provision on the subject In our law. the word " »^«.*. " IZTL^M^trnZ^i^^t * Hawle is{; ~neU^. Vaux, 2 Dalla. 109 ■ ^n™ « Phambre 4 Id., 143 ; Sheets v. Selden, 2 Wallace, 178, 190. And note LeAct of'MarchTlsVs. (applied to mUitary cases by G. 0. 64 of 1875 ) In regard to «edfts for good conduct of five days " in each and ^'^ =f "^" ^ n"ce '" tt stand on a «In n case in G O. 64, Dept. of the Cumberland, 1868, a sentence to stana on a barrel t^rrLurs each day," without adding the number of days, was properly held to '^trctL': o/^aHatJeTnLing a disapproval of the proceedings referred to ^ oee cases oi vaiia.u>.>= nont nf La 1868. where the Christian name of the DIGEST, 743; also <=^«f «-^^- ^'^^^ ^^^ifllaon' and }oI» in the sentence; and case in accus^was given^as^^^^the ^^^^^^ ^^^^^ ^,,,, ,,, ,,,, appeared in the ^:^o^l^ rnrteTaTsr^e^e^ Meade, 3 Peters. 1; Gaines .. Stiles. 14 Peters, 322 ; Lessee of Dunn v. Gaines. 1 McLean. 3^1. 404 MILIXAKY LAW AND PRECEDENTS. both to dishonorable discharge and a term of confinement, and it is proposed by the court that the former punishment shall be — as It is in general preferable that it should be — executed before the latter, the sentence should read that he be discharged and then confined, &c., or in terms to such effect." TO BE ENTIRE AND SINGLE. In the absence of any statutory di- 615 rection on the subject, usage has established that the sentence of a court- martial shall be, in every case, an entirety; that is to say that there shall be but a single sentence covering all the convictions on all the charges and specifications upon which the accused is found guilty, however separate and distinct may be the dlfEerent offences found, and however different may be the punishments called for by the offences." NOT TO STATE THE VOTE, EXCEPT IN A CASE OP DEATH SEN- TENCE. Although not required by law — by Art. 96 or otherwise— it is the uniform practice to add to a capital sentence that the same is concurred in by two-thirds of the court. But in no other cas6 can the vote be stated in the sentence; nor can it be stated that the vote was unanimous, without a violation of the members' oath prescribed by Art. 84.'° SENTENCES TO BE SEPARATE FOR JOINT ACCUSED. Where several persons are charged and tried together for the same offence or offences, and all, or more than one, are convicted, separate entire sentences should be ad- judged to each, precisely as if they had been separately tried. Different pun- ishments may, and, where the measures of their criminality are materially different, should, be imposed upon the several individuals; but, even though the same punishment be awarded to each, the sentences — like the findings — should be formally distinct." CTTMULATIVE SENTENCES, HOW TO BE FRAMED. Where a person, while under sentence of imprisonment, is again brought to trial and sentenced to a further measure of the same punishment, it is usual in the civil practice for the sentence to specify that the second imprisonment is to begin at the expiration of the first, indicating the date of such expiration." At 616 military law, however, it is not habitual, nor is it necessary, so to specify," or otherwise to direct in terms that the second punishment, (of imprison- ment, forfeiture, or suspension,) is to be executed as additional to or con- tinuous upon the first. It is sufficient and almost invariable to frame such punishment in the usual form, as an independent sentence ; the mere fact that a similar sentence is pending and being executed at the time determining of Itself that the second sentence Is to be treated not as concurrent but as a distinct additional penalty of which the execution is to commence upon the completion of the first, i. e. when the same is terminated by its due expiration, •^ Where this is not done, it is in general to be inferred, and in our present prac- tice is inferred, that the punishment first mentioned is the one Intended to he first executed. See Dioest^ 367. •» As to the civil practice, see Wharton, C. P. & P. § 910, 911 ; 1 Bishop, C. P. f 1325-1334. '" See similarly as to the statement of the Finding, In Chapter XIX. " Where there are Joint defendants, the sentence should be " In form several, not joint." 1 Bishop, C. P. § 1035. And see Wharton, C. P. & P. § 312, 314; V. S. c. Ismenard, 1 Cranch C, 150 ; Simmons § 644. A Joint sentence, where all are alike convicted of the same offence or offences, would indeed be legal and operative at military law, though irregular and exceptional as to form. " See Wharton, C. P. & P. § 932 ; 1 Bishop, C. L. § 953. " Recent Instances In which it was done In the sentence are found in G. C. SL O. 24, 39, Dept. of Cal.. 1S85. MILITAEY LAW AI7D PRECEDENTS. 405 or by a remission on the part of the proper superior authority. The second sentence is thus made cumulative simply by operation of law." It may be added that a punishment, to be cumulative, must be one capable of being independently executed. Where a court-martial has imposed upon an accused a penalty -which, from its nature, cannot be executed more than once, as dishonorable discharge or forfeiture of all pay, and such penalty has been approved and has taken effect, it will be futile and superfluousi to re- peat it In framing a subsequent sentence. In such a case, the court will, in the first instance, have exhausted its power over the subject, so far as con- cerns the particular penalty." THE SENTENCE SHOULD NOT EMBBACE PENALTIES RESTJLTINa BY OPERATION OF LAW. Thus the sentence of a deserter need not and should not contain a direction to the effect that he make good the time lost by his unauthorized absence," or that he incur the forfeitures specified 617 in the Army Regulations," or that he be subjected to the loss of civil rights prescribed by the statute law ; " the same being all penal conse- quences attaching upon the (approved) conviction, independently of the sen- tence. So, in convicting an officer under Art. 6 or Art. 14, (providing for the punishment of false musters, &c.,) It is not essential to add, in connection with the dismissal to be adjudged, that the accused be disabled from holding office or employment in the public service, since this disability must necessarily result from the judgment of the court. V. THE SPECIFIC PUNISHMENTS SEPARATELY CONSIDERED. These will be presented in the following order :-r-I. Punishments legal and appropriate for officers: II. Punishments legal and appropriate for both offi- cers and enlisted men : III. Punishments legal and appropriate for enUsted men only. I, Punishments Legal and Appeopeiate foe Oiticees. These are Dismissal or Cashiering, Disqualification for office. Suspension, Loss of relative rank or files, Reprimand or Admonition, and J^pology. DISMISSAL OR CASHIERING. Dismissal and cashiering" were formerly regarded as quite distinct in military law; the latter involving, in addition to a dishonorable separation f rom the service, a disability to hold miUtary office "DIGEST 444 698 The legal effect will be the same whete the soldier has been twice successively tried, and has received at each trial a term or quantity of the same p^nishmenr but the first sentence has not been promulgated as approved, or has not 'Zmenced'to be executed, at the date of the second sent.„ce^ Here th^ second sentence when approved, will be cumulative upon the first. See par. 1029, Army Kegs., coStag ruUng of th; Sec. of War in concurrence with . previous opinion of the Judge Advocate General. "See case in G. O. 10, Dept. of W. Va., 1862^ n n M O 74 "G. O. 94, Dept. of the Mo.. 1867; Do. 21, Dept. of the Lakes, 1873 G. C. M. O. 74, ^ ^ * It %.„„i^ 1(!7« • TiioBST 42 It was formerly held contra. G. O. 45 of 1843. "DroKfT!4Ti7fu.'s renders. 92 U. S., 79. The special regulations referred to are pars. 128 and 1514. " By Sees. 1996,. 1998, Rev. Sts. ™ From the French cosser, to break. 406 MILITABY LAW AND PBECEDEITTS. and thus constituting a more severe punishment than the former." The two are now classified as separate punishments in the British Army 618 Act,'' but in our law and practice all such distinction has long ceased to exist, cashiering having become identical with dismissal.™ In all the present Articles of war in which this punishment is named except two — ^the 8th and 50th— " dismissed " is the word adopted, and in those "cashiered" was retained apparently through inadvertence. In sentences of courts-martial, as also in the common military parlance, "cashiering" or "cashiered" is now most rarely used, and "dismissal" will therefore be here exclusively employed In treating of this punishment Dismissal by sentence, it need hardly be observed, is simply an expulsion of the officer from the military service, carrying with It no legal disability.^ A dismissed officer is not as such disqualified to hold either military ^ or civil office: disqualification for office is, In our military law, as will hereafter be noticed, a separate and distinct punishment. Dismissal, to the exclusion of any other punishment, is required, by Arts. 5, 6, 8, 13, 15, 18, 26, 27, 28, 38, 50, 59, 61 and 65, to be adjudged upon conviction of the offences in these Articles specified. It is also legally imposable upon conviction of any ofEences of which the punishment is made discretionary with the court, and may therefore be adjudged under any of the Articles, other than those last named, which relate to the offences of officers — except only Art. 57 which enjoins, exclusively, the death penalty. Form of the sentence. The proper form of the sentence is — "to be dis- missed," or "to be dismissed the service," or "to be dismissed the service (or 'military service') of the United States." The term "dishonorably," though sometimes employed, need not be expressed, the notion of dishonor be- ing necessarily involved in a dismissal by sentence. Kor, as it has already been noticed. Is It proper to add — " and he Is hereby dismissed accord- 619 Ingly," since It is not the sentence that dismisses or can dismiss the officer, but its approval or confirmation by the reviewing authority." When the dismissal is " for cowardice or fraud," — as where it is adjudged on conviction of misbehaviour before the enemy In violation of Art. 42, or of some offence to the fraud of the United States, as presenting a fraudulent «» McNaghten, 12-16; Hough, 128-130; Maltby, 89, 92; O'Brien, 274^5; 2 Oplns. At. Gen., 289 ; Digest, 214 ; G. O. 17, Dept. of Fla., 1866. Note also ease in James, 377, and Simmons § 116, in which a sentence of cashiering was mitigated to dismissal. A form of this punishment in Arts. 9 and 10, (Sec. I,) of Charles I, is — to be " cashiered the army without pay or passport." In Art. 165 of the Code of Gustavus Adolphus is a peculiar provision, that a " superior officer " who " shall aollidte for any man that is lawfully comdcted " by a court-martial, " unless it be for his very neere kinsman for whom nature compels him to intercede, • • » shall be held as odious as the delinquent and cashiered from his charge." »Sec. 44. "Cashiering renders a person unfit to serve her Majesty again in any capacity." Story, 95. » De Hart, 194 ; Ben6t, 44 ; G. C. M. O. 103 of 1875 ; Digest, 214, 355-6. ssjt entails merely, where adjudged on conviction of cowardice or fraud, and after the sentence has been published as indicated in Art. 100, the loss of the privilege of associating with officers of the army. «If reappointed and confirmed by the Senate. (Sec. 1228, Rev. Sts.) It is other- wise as to naval officers, who, when dismissed by court-martial, cannot again re-enter the navy as officers. (Sec. 1441, R. S.) "Postponing, by sentence, a dismissal till after the execution of another punishment imposed by the same sentence, is a proceeding unknown in our military service, but seems to be sometimes resorted to in the naval practice. Thus, In G. 0. M. O. 27, Navy Department, 1887, an officer, convicted of fraud, embezzlement, desertion and' other offences, is sentenced to imprisonment for three years and to be dismissed at the end of that term. This sentence is duly approved and confirmed. MILITARY LAW AND PKECEDENTS. 407 claim or embezzlement, in violation of Art. 60,— the sentence should " further direct " in regard to the publication of the crime, punishment, &c., as is pre- scribed in the 100th Article. Execution of this punishment. This punishment is executed, by operation of law, immediately -upon approval or confirmation, and notice to the officer. Upon the day of the official announcement to an officer of the approval or confirmation by the proper authority of a sentence dismissing him from the military service, his connection with the army at once ceases and he becomes a cinHUan. In some instances the day of actual notice will be the same as that of the final action giving efiCect to the sentence. In other cases, however, a certain period wiU elapse after the date of the confirmation and its promul- gation in General Orders before the officer can be officially informed of the same. In such cases, the general rule is that the sentence shall be considered as taking effect on the day on which the Order, in and by which the sentence is thus confirmed, is received by him, by official mail or telegram, or is pro- mulgated at the post or station at which he is serving or held in arrest." All military persons are in general bound to take notice of General Orders offi- cially promulgated at their stations ; " and, in the absence of evidence to the contrary, an officer will be presumed to have been informed of an Order, 620 confirming a sentence dismissing him from the service, on the day on which the same was published or received, at his post or statlon.°° It may happen, however — and this especially in time of war — that, on the day of promulgation or receipt, the officer may be involuntarily absent so that he cannot In fact take notice of the Order. Thus he may be absent on some duty upon which, (irregularly or because of some emergency,) he has been ordered, or he may be absent sick in a distant hospital, or may be a prisoner in the hands of the enemy. In cases of this character, proof of the fact of absence will rebut the presumption indicated, and the officer wiU, properly, not be charged with notice of the confirmation of the sentence, nor will his dismissal take effect, until actual official notice of the same as confirmed is given to him.™ The phrase, sometimes added to the official approval of a dismissal, aS published in General Orders, that the party "ceases to be an officer of the army from the date of this order," is surplusage, being no proper part of the action required, and of no legal effect in fixing the date on which the dismissal goes into operation. The dismissal does or does not take effect at the date of the order, according as the officer may or not receive official notice of the same on its date. It need hardly be added that, even where a considerable delay has, without fault of the reviewing officer, occurred in acting upon a sentence of dismissal, " See the general rule as stated in G. O. of Tan. 14, 1831, and Do. 103 of 1864, and Illustrated In G. C. M. O. 20 of 1874 ; Do. 42 of 1879 ; Digest, 366, 545. " See G.O. 2, Dept. of Va. & No. Ca., 1865 ', O'Brien, 85. "» DIGEST, 545 ; O'BMen, 85. «» Digest, 545. And compare Simmons § 788 ; also AUstaedt v. U. S., 3 Ct. CI., 290, where an executive order of dismissal was held to have taken effect, not at its date but at the subsequent date of its receipt by the officer at his station. So, In Gould V. U. S., 19 Ct. CI., 593, in a case of an officer of volunteers mustered out and discharged during the late war, but who did not receive notice of such action till at the end of three months, It was held that his discharge did not take effect till the notice reached him. Note also the similar principle incorporated in the 49th Art. of war, and recognized in Mimmack v. U. S., 97 U. S., 426, Barger v. U. S., 6 Ct. CI., 35 ; G. O. 103 of 1864 that an officer's resignation takes effect not at. the date of the order accepting, but at the date on which he is officially notified of such order. Com- pare also G. 0. 80 of 1880. 408 MILITAHY lAW AND PRECEDEliTTS. the same cannot legally be made^ by the order of that officer, to take effect as of a date prior to that of his final action, — as of the date,- for example, of the actual adjudging of the sentence by the court. 621 Dismissal with, igxiomxny. In time of war, coarts-martial have some- times directed in sentences of dismissal that the same be accompanied by certain minor penalties impressing the dismissal with an ignominious char- acter — such as taking away or breaking the sword of the officer, or cutting off his shoulder straps or other insignia of rank, publicly in presence of the con»- mand to which he is attached." In a few cases, upon conviction of misbehaviour before the enemy, it has been directed in the sentence that the officer be paraded in front of the command bearing a placard inscribed with the word " coward," *' and further even that he be drummed out of the service." Such additional penalties are commonly executed through the officer of the day or adjutant, after the reading of the order promulgating the approval of the dismissal, at a parade or on some other occasion of the formal assembling of the command." DISQTJAIiIEICATION FOB OFFICE. This punishment, though 622 formerly, by a provision of the British Mutiny Act, specifically legalized in cases of embezzlement and some offences of a similar nature, ceased subsequently to be thus authorized," and Is not included in the list of legal punishments contained in the present Army Act." In the American civil courts disquaUfication to hold office seems to have been recognized as a common-lavs punishment for treason," but does not appear to have been employed in othei cases except where expressly authorized by statute." In sundry U. S. " See cases In 6. C. M. O. 61, 117, 285, 316, 332, of 1865 ; G. O. 25, Mountain Dept., 1862 ; Do. 9, Dept. of the Cumberland, 1862 ; Do. 55, 60, Army of the Potomac, 1863 ; Do. 19, 27, Id., 1864 ; G. C. M. O. 16, Id., 1865 ; G. O. 3, Dept. of W. Va., 1863 ; Do. 73, Dept. of Va. & No. Ca., 1864 ; Do. 29, Dept. of the Gulf, 1864 ; Do. 43, Dept. of La., 1865 ; Do. 8, Dept & Army of the Tenn., 1865 ; G. C. M. O. 19, Dept of Ky., 1865. In an old Order — G. O., Seventh Mil. Dlst, Jan. 23, 1815, the form is — " to have his sword broke over his head." And see sentence of Capt Manning, post. Punishments of this class are more common in foreign armies. In a late case in France, that of Captain Albert Dreyfus, an artillery officer on duty at the Ministry of War, convicted of dis- closing State secrets to the German government, the sentence was — Imprisonment for life in a fbrtress and degradation from all military rank and honors. In the execution of this punishment the name of the accused was struck from the army rolls, and, in the presence of the garrison of Paris, his sword was broken and his buttons and military Insignia were stripped from his uniform, and thus degraded he was marched along the four sides of the square in which the troops were formed. (January, 1895 ) » 6. C. M. O. 332 of 1865 ; G. O. 19, 27, Army of the Potomac, 1864 ; Do. 73 Dent of Va. & No. Ca., 1864. " G. O. 73, Dept. of Va. & No. Ca., 1864. In a case in G. O. 9, Dept of the Cumberland, 1862, it was directed in the sentence that the officer, after being publicly stripped of his insignia of rank, be " conducted by the guard without the lines of the command." In an Order of the Revolutionary period — G. C, Hdgrs., Valley Forge, March 14, 1778 the Commander-in-Chief, (Washington,) approves a sentence of a Lieutenant "to be dismissed with infamy," and orders him " to be drummed out of camp to-morrow morning by all the drums arid flfes In the Army, never to return." ' " See Order last cited ; also G. O. 25, Mountain Dept., 1862. ""Simmons § 668. The first Instance of a sentence of disqualifleatlon that I have met with in American history was that adjudged Capt Manning, British Army tried for surrendering New York to the Dutch in 1673, and sentenced to have his "'sword broke over his head in public before the City Hall, and himself rendered incapable of wearing a sword and of serving his Majesty for the future, in any public trust in the government." Barber, Hist. Col., New York, 19-20 «Sec. 44. " Barker o. People, 20 Johns., 451. " Com. V. Jones, 10 Bnsh, 725, Brackett v, McCarty, Id., 758. MILITARY LAW AND PKECEDElirTS. 409 Statutes," disquallflcatlon or ineligibility for office has been Imposed not as a punishment but as a legal consequence upon removal from office or convic- tion of crime in cases of civil officials. In our military code, disqualification, (except as it may, at an early period have been involved in cashiering,) has never been specifically authorized as a distinct punishment, though in some of the Articles— the present 6th and 14th for example— it has been attached as a legal consequence to the sentence of dismissal. The authority therefore for disqualification as a miUtary punish- mrait by sentence must rest upon usage. In a case of a contractor tried in 1865 by a naval court-martial, 623 (under the Act of July 17, 1862, s. 16,) and sentenced to be excluded from thereafter contracting for naval supplies, the Attorney General, in pronouncing against the legality of this sentence, observes generally : — " A sentence of incapacity or disability does not seem to fall within the range of discretionary punishments allowable by the usage of the service." " As a gen- eral proposition, however, this statement of the law is too broad."" In a pre- vious General Order of the Navy Department,^ disquaUflcatlon for -office under the United States had been expressly recognized as an authorized punishment for naval courts-martial, and in the arm/y a long series of precedents had given sanction to this form of penalty. Prior to the late war, indeed, this punish- ment, though from time to time imposed, was not a common one." From an early date, however, in the war it was frequentty resorted to, and. Including the period from that date to March, 1870, (in which month it was Imposed and approved in two instances,) the author has noted some one hundred and twelve cases published in Orders, in which this penalty was adjudged by court-martial In connection with dismissal ; ' — ^the disqualification pronounced being in most cases general, i. e. not confined to the holding of 624 miUtary office merely, but extending to the holding of any office under the United States. I "Revised Statutes, Sees. 243, 1229, 1441, 1734, 1781, 1782, 1788, 1789, 2105, 2233, 2873, 3167, 3890, 4187, 4188, 4373, 4374, 5332, 6334, 5392, 5408, 5449, 5499, 6502, 5508, 5532. The disabilities attached W Sees. 1996-1998 to convictions for desertion have been elsewhere remarjsed upon. / In an early case mentioned ta. 2 JournaU.y 204, (1777,) Congress, in summarUy dismissing 12 Lieutenants of the Navy, rendered them at the same time " incapable of holding any commission or warrant under the' authority of the United States." This punishment was once not unfrequently resorted to by militia courts-martial in New England. See Militia Reporter, 146^ Printed Trials of MaJ. Gen. Goodaie, and Capt. S. Watson, et al; Resolve of Mas^. Legislature, of March 10, 1808, In regard to cases of Col. Robt. Gardner and Majors Benj. Harris and Amasa Stetson. »»12 Opins., 528. (1868.) "" Had the ruling been confined to the sentence in the particular case it would scarcely have been subject to exception. Later Indeed the Attorney General appears to recognize disqualification as a not Illegal punishment for an offlcer of the army. In Gen. Porter's case, where he refers to It as " a continuing punishment," which may be at any time " remitted by the exercise of the pardoning power." 17 Opins., 303. See note 3, post. 'G. 0. 44 of 1864. 'Instances are found in G. O. of April 2, 1818; Do. of Sept. 25, 1819; Do. 71 of 1829 ; Do. 16 of 1860. 'See the numerous cases collected in the author's note to Diobst, 375-6. Those published, and approved in the Orders clt^ of the War Dept., included such leading cases as those of Maj. Gen. Porter, Brig. Gens. Hammond and Briscoe, B. G. Harris, M. C, &c. In the ease of the former, the disqualification imposed — " to be forever dis- quallfled from holding any office of trust or profit under the Government of the United 410 MILTTABY LAW AJSTD PRECEDENTS. In a case, however, published in a General Order of April, 1870,* the punish- ment of disqualification, (included by the court in its sentence,), was disap- proved as " unauthorized by law ; " and the same action was repeated in a case of a similar sentence in December following." Since the last date the punish- ment under consideration is not found to have been embraced in any sentence published in General Orders. The disapproval in these cases is understood to have been induced by the ruling of the Attorney General above cited. But this ruling, as has been seen, was not properly applicable at least to sentences of disqualification in the army, and so far as usage and the practice of the Government could sustain such sentences, the sanie must be regarded as having been fully and amply sanctioned in our law. But while this punishment has thus been sanctioned, and is one which might profitably be resorted to in aggravated cases of embezzlement, gross malfeasance in oflBce, or other extreme offence exhibiting the offender to be quite unworthy to serve the TJnited States at least in a military capacity, it is yet to be observed that the same, even though it were confined to military oflice only, would always remain objectionable as practically amounting to an inhibition for an indefinite period upon the constitutional appointing power of the Executive in the case of the officer, and thus constituting an exercise of authority apparently beyond the province of a court-martial. Were the disqualification limited to a certain term of years, as in some militia cases,' and the approval of the President required, as in cases of dismissal, to give the punishment legal effect, the objection Indicated would be mainly done away with. Execution. This punishment would be executed in the same manner as dis- missal, i. e. upon official notice of the approval of the sentence by the President or proper Commander, as given either by the formal order of promul- 625 gatlon of the proceedings, or otherwise. TJiJon the date of such notice the disqualification Is complete, and thenceforward continues to be in force till removed by the pardoning power.' SUSPENSION'. This punishment, (no longer authorized by the British code,') is Imposable in our service for any ofCence of an officer' of which the penalty is discretionary with the court. Though recognized in one of Its forms — suspension from command— by the 101st Article of war," it in fact rests for its authority upon usage. It may he Imposed for any stated term of States " — was further recognized as legal by being expressly remitted, as a continuing punishment, by the President In 1882. It may be added that disqualification could rarely be an appropriate punishment for an enimed man. In one instance, in G. C, M. O. 98 of 1867, in which a soldier was sentenced, with confinement, "to be forever disqualified from holding any office above the rank of private in the U. S. army," this part of the sentence was very properly dis- approved. * G. C. M. 0. 22, H. Q. A » G. C. M. O. 57, Id. •See Militia Reporter. 145; Printed Trial of MaJ. Gen. Goodale, (Mass. militia:) Printed Trial of Capt. S. Watson, et. al. (Id.) ' See 17 Opins. At. Gen., 303, cited ante. ' See Army Act, s. 44. • Suspension from rank (and pay) of Twnrcommissioned officers was at one time known to the British practice, (Simmons § 126; MoNaghten, 35-37,) but.is no longer authorized. (Army Act § 44.) In a few rare Instances in our service, of which the latest known IS a case m G. C. M. O. 33, Dept. of the East, 1872, non-commissioned officers have been sentenced to suspension, but such punishment has no sanction in usage, and Is not recognized m the Army Regulations, par. 1019 » u ib "As also in Sec. 1326, Rev. Sts., relating to cadets of the Military Academy MILITARY LAW AKD PRECEDENTS. 411 a » as fifteen days," and In another for so long a period as twelve years." Kinds of suspension. There are properly but two kinds of suspension of commissioned officers-suspension from rank and suspension from command. The former indeed includes the latter; that is to say, a suspension of an officer from rank includes a suspension from such right of command, (and exercise of authority and performance of duty incident thereto,) as may be attached to his rank. "Suspension from the service " is a form which was once sometiihes employed as substantially equivalent to suspension from rank but is now disused. " Suspension from duty " Is a form more frequently 626 resorted to in the Navy" than in the miUtary practice." The " suspm- sion from pay " Indicated in Art. 101 is not properly suspension In the legal sense, but forfeiture. The pay for the term is not merely mthhelO—the right to receive it is not merely suspended or placed in abeyance— but the same is absolutely forfeited precisely as in any case of a forfeiture expressed as such in the sentence." In suspending, however, an officer from command, a court- martial, in view of the provision of the Article, is not, as it is held, empow- ered to suspend, (,{. e. forfeit,) his pay for a period longer than the term of suspension from command." Suspension from rank. This punishment Involves a deprivation, during the period of the operation of the sentence, not only of the right of command but of all other rights and privileges incident to the rank, as such, of the officer, whether held in his relation to other officers or to enlisted men. Thus it de- prives him of any right of promotion accruing during the term of suspension to which he would have been entitled had he not be«i suspended, and causes the same to accrue to the officer next Junior." It renders him ineligible to sit upon a court-martial, court of inquiry, or military board, and also divests him of the right of priority and precedence in the exercise of the minor privileges of the officer, such as the privilege of the selection of quarters whenever quar- ters become available for selection pending the term of suspension. And 627 so of any other right or privilege of priority, obedience, or deference, which would otherwise have been due to his rank; the same, with its incidents, remaining, during the term of the suspension, dormant and inopera- tive. " G. 0. 61, Dept. of the Bast, 1865. "G. C. M. O. 19, (H. A.,) 1885. " See Naval. Begulatlons, Art. 32, s. 2 ; Harwood, 134-5 ; G. C. M. 0. 28, Navy Dept., 1890. The following are some of the more recent instances of sentences of suspension, combme52 As t« the S3 See Simmons § 115, note; De Hart, 55-58; Ben«t, 3^ ^ %43 of 1852. As t« the injurious effect of the exceptionally protracted suspension in Gen. Swaim s case, see remarks of President Arthur In the G. C. M. O. noted po«t MArmv A<-t s 44 See, " Loss of relatife rank or flies, post. «^ntte recent case of Gen. Swaim, (M- C. M. O. 19 of 1885,) a sentence-" To be suspendJ^ frZ rank and duty for t«,efe years, and t»/°f " --^«" f = ""o"*'^ pay every month for. the same period," Was Anally approved by the President. 414 MIOTAKY LAW A2JD PEECEDBITTS. the order promulgating the approved sentence if communicated to him upon its date, or the subsequent date upon which such order, or other official infor- mation of the approval, is actually personally made known to himi the term of the suspension begins and runs on to its end. Suspension from the Military Academy. This is a further form of the punishment of suspension, applicable only to cadets. It has the effect of wholly severing the cadet from the Academy during the term adjudged. Where the suspension is for a considerable term, it is usually added in the sentence that at the end of such term the cadet shall join the next lower class. loss OF RELATIVE RANK OR FILES, OR REDXJCTION IN GRADE. This species of punishment, in substance legalized by the British code,°° is, with us, sanctioned by the established usage of the service.*' In our practice the punishment consists simply in subjecting the officer to lose a certain number of " files " or " steps " in the Ust, or to be placed at the bottom of the list, of officers of his rank in his regiment, arm, or corps. In resorting to the milder form of the punishment, the position on the list intended to be assigned the offender is in general specifically indicated by designating the inferior number which he is in future to have, or by some such addition as — " so that his name shall appear (or be borne) on the Army Register next below (or above) that of A. B.," (a certain officer named.) The effect of this punishment is to deprive the officer of such relative right of promotion, as well as relative right of command and of precedence on courts or boards and in choosing quarters, &c., as he would have had, had he re- mained at his original number. It cannot, however, affect his right to pay or allowances."" 631 Like suspension, this punishment has, in some General Orders,"" been declared to be an objectionable one, on account of the inequality of its effect upon the other officers in the list. But, like suspension also, though less frequently adjudged, it holds its place among the approved minor punishments jfor officers. It may, however, in some cases operate wi^h more severity than suspension, since, unUke the latter, it has no fixed term biA is a " continuing " punishment subsisting till removed by the pardoning power." As remarked of suspension, it is sometimes resorted to by way of commutation for a more severe penalty, as dismissal." Execution of the punishment. This punishment, like dismissal and sus- piension, begins to be executed and to take effect at and from the date of the Order promulgating the approved sentence, or the date of the personal and official notice to the officer of the due approval of the same." REPRIMAND OR ADMONITION, AND APOLOGY. Reprimand is one of the punishments enumerated in the Army Regulations, (par. 1019,) as legal =»It is designatea in the Army Act. s. 44, as— " Forfeiture of seniority of rank In army or corps or both." ^ See 12 Opins. At. Gen., 547. '8 12 Opins. At. Gen., 547. » See G. C. M. O. 25 of 1873 ; Do. 2, Dept. of Dakota, 1873. But in G. O. 43 of 1852 a preference was expressed for it over suspension, by the Secretary of War « 12 Opins. At. Gen., 547 ; 17 Id., 31, 656. ^ "^"^ ^:.2.l^-J^-J] "* ^®^®' * ««°t«°<=e of cashiering is commuted in the following 2T^^'T . ?^' . 'r"'"'^ ^^^ "®'=^'"'^ " ^^^^ •>« P^'=^^ at ""e foot of the list of second lieutenants, forfeiting all rank and claims and priyileges arising from services rendered previous to the date of the promulgation of this sentence." The statement! Tg CM o%TZr^ °^*« "f °" 5^ 0* ™»'«e surplusage. In a recent case 1^ «: 1 ?■. .. I • ^ =«°t««=e 0' dismissal is commuted (in part) to—" reduction in lineal rank to the foot of the list of lieutenant colonels of cavalry." ™<«=™" " See ' Execution of punishment of dismiSBal," ante. MLLITAEY LAW AND PRECEDEKTS. 415 for enUsted mm. Inasmuch, however, as It is most rarely adjudged offenders of' this class, and is especially appropriate for cases of officers,*"— it is pre- ferred to consider it In this connection. This punishment is in terms recog- nized as a legal penalty for officers by the British code," and in our law 632 is imposable by usage whenever the sentence is discretionary with the court. Though usually awarded for offences deemed materially ex- cusable,— as where the offender has acted without bad motive, or upon a misconception of law or fact, or under extreme provocation," &c,— and intended as a light penalty," it is yet one of which the quality must necessarily be left to the discretion of the authority who executes it A court-martial, in imposing a reprimand, may direct that it be either puUio or private, " according as it is contemplated that it shall be administered in public before the command " or published in General Orders, or shall be given by way of personal reproof by the commanding officer in the absence of wit- nesses. Sentences of private reprimand, though once not unusual," are now most rare in practice. The more frequent form of the sentence is— "to be reprimanded in General Orders," or " to be reprimanded " simply. A designa- tion of the authority by whom the reprimand is to be administered is some- times added, as — "by the general commanding," "by the Secretary of War," &c. This however is not necessary, the duty properly devolving in all cases upon the legal reviewing authority — the officer who convened the court or his successor for the time being.™ This officer should be designated, if any one : " for the court indeed to designate any other officer as the person to execute the sentence would be irregular and unauthorized,"" and such action would prop- erly be disregarded: the best form is to make no designation. 633 Further, the court in its sentence cannot properly direct as to the terms of the reprimand, nor as to the time or place at which it is to be given." These also are matters which belong to the province of the reviewing officer. " That reprimand Is not a regular or appropriate punishment for enlisted men, see Harcourt, 171 ; Hughes, 94 ; Bombay K., 37 ; Macomb, 62 ; G. O. 31, Dept. of the N. West, 1864 ; Do. 149, Dept. of the Gulf, 1864 ; Do. 7, Dept. of Arizona, 1870. " It ts designated as " Reprimand, or Severe Reprimand." Army Acts, s. 44. « See Trial of Capt. S. Watson, (Mass. militia,) p. 100. (1811.) «Maltby, 96. "Adye, 221; Tytler, 317; Simmons § 115, 670; Malthy, 97; Macomb, 61; O'Brien, 275 ; De Hart, 194. "In the early case of Col. Debbiegg, (2 McArthur, 383,) the court sentenced the accused " to be reprimanded in open court," and the reprimand was thereupon ad- ministered by the president of the court. Such a form Is now unknown. " See instances of sentences " to be privately reprimanded " in G. 0. 45, Dept. of Washington, 1863; Do. 13, Dept. of Va., 1866; Do. 76, 84, Dept. of the East, 1867; and in the published naval Trials, in 1822, of C^apt. (Jordon, (p. 440,) and Capt. Hull, (p. 474.) "See DiQBSTj 660. " G. C. M. 0. 83, Dept. of the Mo., 1871. "*In a case in G. O. 15 of 1852, in which a court, convened by a department com- mander, sentenced an accused "to be reprimanded in Orders from the War Depart- ment," it was held by the Secretary of War that the court could not properly remove the execution of such sentence from the department commander, who was the legal reviewing officer, to the War Department, and that the sentence was therefore in this respect irregular. » Simmons % 670 ; Tytler, 31-7 ; Maltby, 97 ; Macomb 62. 416 MIUTAKY LAW AND PRECEDENTS. Admonition Is but a milder form of reprimand." A sentence " to be admon- ished " is an indication that the court deems the offence to be one of a com- paratively venial character." To sentence an oflScer, convicted of a serious ofEence, merely to be reprimanded or admonished, is a mockery of justice." Execution of the punishment. In cases of light offences, it has been a not imusual form for the reviewing officer, in approving the sentence, to add in the order: — ^"The publication of this order will be a sufficient reprimand," (or " admonition,") or in terms to such effect ; this constituting the entire execu- tion of the sentence."" In cases of more serious offences, the order commonly proceeds to administer a specific reprimand; and ia some marked precedents very severe reprimands, in the course of which the merits of the case are 634 reviewed and commented upon, have been pronounced and promulgated to the army.'* In a few instances the reviewing authority has directed that the reprimand be administered by an iaferior commander. Private reprimands are executed in such form and at such time and place as the ap- proving authority may in his discretion select APOLOGY. Courts-martial have sometimes required in sentences that the accused make an oral or written apology — ^generally in public, if oral — ^to another military person, commonly a superior, for disrespectful words, unjust Imputations, or other personally offensive and Improper language or conduct." The sentence, however, may require that the apology be tendered in writing. In some cases the court has dictated the terms in which the apology should be expressed, or directed that it be dictated by a commanding officer."" The " Other tacma of this sentence which have been resorted to in our service may here he noticed — as : " to be severely reprimanded," G. O. 21, Dept. of the Tenn., 1863 ; " to be slightly reprimanded," G. O. 7, Army of the Potomac, 1862 ; . " to be reproved," 6. O. 5 of 1857 ; " to be censured in Orders by the Reviewing Authority," (the Presi- dent,) G. C. M. O. 37 of 1885. In Q. O. 51 of 1863, an officer convicted of allowing his men to pillage, is sentenced to be publicly reprimanded " and instructed " by the colonel of the regiment. " See O'Brien, 276. In a recent case in G. C. M. 0. 28 of 1880, the sentence adjudged on conviction of a slight offense, is — " To be privately admonished by the commanding general." "See cases in G. O. 64, 68, of 1843; Do. 39 of 1845; Do. 21, Dept. of the Tenn., 1863; Do. 22, Dept. of the Platte, 1867; G. C. M. O. 1, Dept. of the Mo., 1888— in which sentences of reprimand, imposed on conviction of grave offences, are disapproved and commented upon as inadequate. " G. O. 25 of 1830 ; G. C. M. O. 19 of 1871 ; Do. 109 of 1875 ; G. 0. 5 Dept. of Alaska, 1868. And see Adjutant General Jones' case, O., No. 9, (A. G. 0.) of March 13, 1830. " As in a C. M. O. 34 of 1872 ; Do. 3 of 1873 ; Do. 20, 31, 36, Navy Dept. 1881 : Do. 1, Id., 1883. " Simmons § 670, 671 ; Hough, (P.) 658 ; James, 56 ; O'Brien, 68. » See authorities cited in last note. The most marked ease is that of Col. Debbiegg, folly reported In 2 McArthur, 383. Here the accused, for disrespectful conduct to Us commander, the Duke of Richmond, was sentenced to be reprimanded in open court, " and to make his submission " to that officer ; the court dictating the form of submis- sion or apology, in which the accused was caused to " declare his great concern that he should have made use of expressions in his correspondence with his superior officer which In the opinion of the court, tended to the prejudice of good order and military disci- pline." This apology was read by the accused, in open court, before his commander present as prosecutor, who thereupon expressed to the court his acceptance of the apology, adding— Uke a true nobleman and gentleman—" and I promise Col. DeVbiegg that lie shall never tnuie to my iehaviour any ungenerous reoollection of this trans- action." Samuel (p. 379.) reports a remai*able case pi a British Lieut. Colonel, tried In this country during our revolutionary war, for striking a subaltern, and sentenced to sus- pension; the court adding in the sentence that the junior officer "should draw his hand across tlie face of the Lt Col., before the whole garrison, in return for the insult he had receivea. MILITARY LAW AND PKECBDENTS. 417 British precedents, (which are few in number,) seem to be all cases of officers." In our service the precedents have been nearly all cases in which soUiers have been sentenced, in connection with some other punishment, to tender 635 apologies to, (or ask pardon of,) non-commissioned officers " This punishment, however, like reprimand, is regarded as a more appropriate one for officers than for enUsted men.»= It is now indeed almost whoUy disused in practice. II. Punishments Legal and Appeopkiate foe both Officees and Enlisted Men. The punishments of this class are Death, Fine, Imprisonment and Forfeiture of pay, or of pay and allowances. DEATH. It is provided in Art. 96 that—" No person shall be sentenced to suffer death except * * * in the cases expressly mentioned " in the code. This punishment is so mentioned— (1st,) in Art. 57, and in Sec. 1343, Rev. Sts., where it is specifically required to be adjudged upon conviction, to the exclusion of any lesser penalty; (2d,) in Arts. 21, 22, 23, 39, 41, 42, 43, 44, 45, 46, 47, (in time of war,) 49, 50, 51 and 56, where it is in terms authorised to be inflicted at the discretion of the court. In a further Article, the 58th, this penalty, though not named, is yet in effect required to be imposed upon conviction of offences made capital by the local law. This last article, however, is operative only " In time of war, insurrection, or rebellion." So, it is only at a similar period that death sentences 636 are, by the provisions of Arts. 47, 49, 50 and 51, and Sec. 1343, authorized to be resorted to. Further, the acts made punishable in Arts. 41, 42, 43, 44, 45, 46, 56 and 57 are offences which, from their nature, would scarcely be committed except pending a state of war ; and, as to the offences designated by Arts. 21, 22, 23 and 39, for which death may at any time be adjudged, these, in time of peace, will most rarely be so aggravated as to induce a court- martial to assign the extreme penalty. The result is that this punishment is, in our military law and practice, reserved almost exclusively for the pur- poses of the administration of justice and in time of war. About 550 death sentences imposed Tsy courts-martial during the late war are published in the General Orders of the War Department alone." °' A leading case, where the court dictated the form of the apology, was that of Lieut. Gen. Murray, in 1783. Simmons § 671. " See cases in G. O. of April 24, 1841 ; Do. 70 of 1864 ; Do. 5, Middle Dept., 1864 ; Do. 22, Dept. of the East, 1869. In a further case, of a civil employee directed to apologize to an officer, in G. C. M. O. 22, Dept. of Kjf., 1865, the apology was directed by the court to be made " in the presence of the commanding general of the post." Cases of sentence to ash pardon are few. In James, 58, is one of a captain sentenced to asl£ pardon of the major of the regiment. In G. O. 45, Dept. of the South, 1862, Is a case of a private sentenced, (in addition to confinement on bread and water,) to asls pardon of a sentinel, in the presence of the regiment, for disrespectful language ad- dressed to him. In this connection may be noted the provision of the 25th Article of war, that a soldier using " reproachful or provoking speeches or gestures " shall be " confined, and required to ask pardon of the party offended in the presence of his commanding officer ; " this penalty, however, being apparently intended to be exacted as a matter of official discipline without a resort to trial by" court-martial. " In the case, above cited, in G. O. 5, Middle Dept., 1864, the sentence, adjudging a private, to make apology to a corporal " in front of the parade," was disapproved, for the reason that It was "one which could not be executed except by the act of the prisoner, and could only be enforced by imprisonment, which might be perpetual." «An additional large number appear published jn the G. O. of the different depart- ments and armies, issued during the late war. A further and greater number are to be found in the Orders promulgating the proceedings of cases tried by Military Com- missions, where, however, the parties were mostly civilians. A very considerable proportion indeed of all these sentences were commuted or remitted. 440593 0-42-27 418 MILITAKY LAW AND PRECEDENTS. Our code does not prescribe In any case" what form of death penalty shall be imposed. It would therefor^ be strictly legal for a court-martial to sen- tence simply that the offender be punished " mth death," the authority em- powered to approve the sentence thereupon directing as to the mode — shooting or hanging — ^which the usage of the service, in the absence of statutory require- ment, has designated as appropriate to the particular offence. In practice, however, the court invariably specifies the form of the penalty, adjudging in general that the accused be shot where convicted of desertion, mutiny, or other purely military offence, and that he be hung where convicted of a crime other than military, as murder or rape, or of the crime of the spy." 637 It Is required by Art. 96 that two thirds of the members of the court shall concur In a death sentence. It has hence become usiial, though it is not essential, for the court to add to such sentence — " two thirds of the members present concurring," or in terms to such effect. Execution. The reviewing authority, on approving the sentence, will desig- nate such time and place as the convenience or interests of the service may dictate. Where, on account of some exigency, it is found impracticable to proceed with the execution at the time nam«d or at the place selected, another time or place may at the earliest opportunity be indicated, and the execution legally proceed according to the new designation." By the same authority, an inferior commander — ^as the officer in command of the post, or of the regiment, brigade, &c., at which tlie prisoner is held or to which he belongs — may be, and usually is, ministerially charged with the direction of the act of execution.** In the absence of an army regulation prescribing a ceremonial for the execu- tion of a capital sentence, the form may be varied in its details at the discretion of the commander, as the want of proper facilities or the exigencies of the service may require, and, in time of war, the procedure is often materially slniplifled. According to the general usage, where the death penalty is to be inflicted by shooting, the prisoner, accompanied by the chaplain, is conducted by a detachment, including a firing pairty and coffin bearers, and headed by the provost marshal or other officer and band playing the Dead March, to an open space on three sides of which the command is formed facing inwards. The prisoner being placed, the charge, finding, sentence and orders are read aloud. The firing is directed by the officer, and, the execution being completed, the conmiand breaks into column and marches past the body. In a case of hanging, the command is "formed in square on the gallows as a centre," and, after " Except as indirectly indicated in Art. 58. "Deserters to the enemy have sometimes been sentenced to be hung. The death penalty is usually unaccompanied by any other penalty in the sentence. In a case in an early G. O. of Dec. 9, 1820, the court, in sentencing a mutineer to be hung, add — " and that his body he offered to the surgeons of the post for dissection." No other such Instance, however, has been met with. An authority similarly to direct, In cases of persons convicted of murder, was conferred upon D. S. courts by a provision of an Act of 1790, now contained in Sec. 5340, Rev. Sts. In a case in G. O. 39, Dept. of W. Va., 1864, tried by a military commission, the sentence is — " to be hung to a tree and left hanging with the inscription, ' Murderer of a Union soldier ;' " to which is added by the commission the recommendation " that the building In which the murder was committed be burned to the ground." "See Digest, 112; also case of Coleman v. Tennessee, in 97 V. S. Reports, 519, and 16 Opins. At. Gen., 349, in which It was held that a capital sentence, adjudged a soldier by court-martial in May, 1865, but not executed by reason of his escape and the pendency of civil proceedings in his case, might legally be executed in 1879 ; and this though the soldier had meanwhile been discharged from the service. ■"See Maltby, 104-5. MILITARY LAW AND PRECEDENTS. 419 638 similar preliminaries, an "executioner," under the direction of tlie officer in charge, " performs his office." " FINE. This punishment is specifically designated by Art. 60 of the code as a punishment suitable for embezzlement and other frauds upon the govern- ment. It is also recognized in Art. 83, relating to inferior courts-martial, where however it is viewed in practice as substantially synonymous with for- feiture of pay. Subject to the provisions of G. O. 16 of 1895, (in case of en- listed men,) it is legally impossible wherever the punishment is discretionary with the court, but is especially appropriate to those offences which consist in a misappropriation or misapplication of public funds or propery, being in gen- eral adjudged with a view mainly to the reimbursement of the United States for some amount illegally diverted to private purposes. Where indeed the pecuniary liability of the offender is comparatively slight, forfeiture of pay, as being more readily executed, is a penalty preferable to fine ; but of course the amount of pay due at the time of the sentence to the officer or soldier will in general be quite inadequate to meet any considerable obligation. In ag- gravated cases of embezzlement by disbursing officers — ^in whose cases this punishment has been mostly resorted to — very heavy fines have been foimd necessary to measure the total extent of the spoliation of the treasury by the convict." 639 Execution. Fine can in general be effectually executed only by means of imprisonment superadded in the sentence as indicated under the next head. In the absence of any such additional penalty, the military authorities cannot of course legally attempt to enforce the fine by any restraint of the person, seizure of the property, or other forcible act." A fine duly adjudged by court-martial may, in the opinion of the author, legally be sought to be col- lected by a suit commenced in a U. S. court, as money due the United States : no instance however of such a suit is known in practice. EINK AND IHPSISONMENT. " The ordinary and appropriate common- law punishment for misdemeanor is fine and imprisonment, or either of them at the discretion of the court." " In the military code, the 60th Article makes, «» See Simmons S 759, 760 ; 2 McArthur, 345-7 ; Maltby, 104-8 ; De Hart, 247-8. And note in this connection 2 McArthur, 395-6, and Burke's Celebrated Naval & Military Trials, 88, 255, as to the impressive ceremonial upon the execution of the death sentence in the case of Admiral Byng, and in that of Richard Parker, leader in the Mutiny at the Nore. "In cases published in G. C. M. O. 196 of 1864; Do. 187 of 1866; Do. 21 of 1871, respectively, fines of $35,000, $45,000, and $445,000 were adjudged disbursing officers convicted of misappropriation. And note, in this connection, cases in G. 0. 55, Dept of Ala., 1865 ; Do. 8, Id., 1866, where fines, respectively, of $90,000 and $250,000 were imposed by military commissions upon civil officials convicted during the late war of conspiring to defraud the U. S. of the value of captured cotton. In a recent case in G. C. M. O. 24 of 1878, where the fine was the amount of a trust fund Justly due from the accused, the court added in the sentence — " together with interest thereon, from June 1, 1864, to date of payment; said interest to be com- puted at sia per cent, per annum." "Orders to such effect were in some cases made, during the late war, — see G. O. 61 of 1865; Do. 71, Dept. of the Mo., 1863; Do. 181, Dept. of the Gulf, 1864,— but were unauthorized as adding to the punishment. " 1 Bishop, C. I/. § 940. " It is a settled principle that where an offence exists to which no specific punishment is affixed by statute, it is punishable by fine and imprison- ment. This is so invariably true that in all cases where the Legislature prohibit any act without annexing any punishment, the common law considers it an Indictable offence, and attaches to the breach the penalty of fine and Imprisonment." Story, J., in U. S. V. Coolidge, 1 QalUson, 493. 420 MTT.TTATtY LAW AND PRECEDENTS. speeiflcally, the offences therein described punishable "by fine or imprison- ment," and, upon convictions under this article, and by usage under other articles of the code where the punishment is discretionary, the two penalties are frequently combined in the sentence. In the military, as In the civil, pro- cedure, where a fine is imposed, it commonly is, and in general properly should be, added in the judgment that the party shaU be imprisoned till the fine 642 is paid.™ But, especially as there is no process known to the military law by which a convict, destitute of means, can, because of his Inability, be relieved from an imprisonment imposed for the enforcement of a fine," it is usual and proper in a military sentence to declare that such an imprisonment shall not exceed a certain term of months or years ; otherwise— the pardoning power not intervening— the confinement might be indefinitely prolonged. When the imprisonment is intended to be inflicted for a separate purpose of addi- tional punishment, as well as with a view to induce the payment of the fine, the form commonly adopted is to adjudge it for a certain period absolutely, and for such further period as the fine may remain unpaid — the latter period, however, not to exceed a certain term specified, or the whole not to exceed a certain term in all." IMPRISONMENT. This punishment, indifferently also styled "confinement" in the military practice, is in terms recognized as a legal penalty in Arts. 17, 60, 83 and 97, and indirectly In Art 58 : usage further sanctions its Imposition by general courts-martial, npon oflScers" as well as soldiers, in all cases in which the sentence Is left to the discretion of the court; confinement in a penitentiary, however, being restricted to cases of the class specified in Art. 97. Imprisonment, where adjudged to officers, is almost invariably combined 641 with dismissal : the party is thus not subjected to the confinement as an officer, but as a criminal, and the old rule that a commissioned officer could not properly be held imprisoned Is thus substantially observed. Where adjudged to non-commissioned officers, it is properly accompanied, in the sen- tence, with reduction to the ranks." ™As to the rule In the cItII practice, see Rex v. Bethel, 5 Mod., 21 ; 1 Bishop, C. P. § 1301. In G. C. M. 0. 27 o£ 1872, the Secretary of War disapproves the omission " in the sentence of any direction that the prisoner should be confined until he should have made restitution to the United States of the amount of public money found to have been embezzled. Without this provision in a sentence there is no means, in the case of an oificer not bonded, of enforcing such restitution beyond the extent of his pay." And see the earlier 6. O. 61 of 1865, on the same subject. In some cases, in directing that the offender shall be imprisoned till the fine Is paid, the court has restricted the period by adding — " abating the same at the rate of five (or other number of) dollars per day," or in terms to such efEeet. See G. C. M. O. 633 of 1865 ; Do. 88, Dept. of Ky., 1865 ; 6. 0. 4, Mil. Div. of the Tenn., 1866. In G. C. M. O. 17, Dept. of Miss., 1865, a form of sentence Is — ^to be fined three hundred dollars, and to be imprisoned " one day for every two dollars of said fine, or any part thereof that re- mains unpaid." "By Sees. 1042 and 5296, Rev. Sts., provision is made for the discharge of poor convicts, sentenced by federal courts to be fined and imprisoned till their fines are paid. ™In this class of military sentences, a provision as to the proportionate abatement of the fine is added even more frequently than in the class of cases of fine and Im- prisonment last above referred to. See, for example, cases in 6. C. M. O. 159 266 of 1865 ; Do. 31 of 1866 ; Do. 24, 1867 ; G. O. 22, 38, Northern Dept., 1865. In G. C. m! O. 155 of 1865, is a sentence imposing a fine of $5000 and a certain term of imprisonment, in which it is added that if the fine is not paid at the expiration of such term, the party shall be confined " one year additional for each thousand dollars until it is paid." " So, the British Army Act, § 44, authorizes, among the punishments for officers,- " Imprisonment, with or without hard labor, for a term not exceeding two years " " Simmons S 687 ; De Hart, 58, 195 ; G. O. 11, Dept. of the Cumberland. 'l869 : G. C. M. O. 112, Dept. of the Mo., 1871 ; Do. 33, Dept. of the Bast, 1873. MILITAEY LAW AND PRECEDENTS. 421 There are five species of this punishment now recognized in military law: Simple confinement ; Confinement at hard labor ; Confinement in a penitentiary ; Solitary confinement; Confinement on bread and water diet. The two latter, however, are by usage, as expressed in par. 1019, Army Begulations, reserved for enlisted men alone, and v/iU be considered among the punishments appropriate to that class. Simple confinement. This is either confinement la a guardhouse," imposed for slight ofEences, or confinement (without hard labor) in a military prison" — such as that established by military order on Alcatraz Island in the harbor of San Francisco, or such as may be maintained at any military post or station. Where simple confinement in a military prison is imposed, the usual form 642 of the sentence is, in general terms, — ^"To be confined at such prison, or military prison," (or place,) as the proper authority may designate, for years or months ;*' no particular place of confinement, or reviewing official, being specified. Confinement at hard labor. " Hard labor " is really a distinct punislmient, and has formerly, in some instances, been adjudged alone — i. e., unaccompanied, in the sentence, by confinement." It necessarily implies, however, per se, a restraint of the person, and Is now never imposed except in connection with confinement; — "to ie confined" (or "imprisoned") "at hard labor," at a prison named, for a certain specified term, being the customary form of the sentence. Hard labor, being a separate penalty, must be expressed in terms in the sentence, or it cannot be administered'" except — as will hereafter be " Sometimes expressed in the sentence under the form of — " To be confined under charge of the guard at his station," or " at the post where he is serving," (for a certain period,) or in terms to a similar effect. A farther mild form of " confinement," sometimes Imposed, which, however, is rather a deprivation of privilege than confinement, is — conflnemetU to the limits of the post. A form similar to this occurs in the Navy — ^"To be restricted to the ship," or to a particular ship — naming It — " to which he is attached," for a certain period stated. Where the sentence Is imposed at sea or in a foreign port, the form often is — " To be confined on board ship, (or on a particular ship,) in Irons (or double irons) for safe keeping, untU he can be sent, (or brought,) to the United States," for a certain further imprisonment specified. See G. C. M. O. 20, 21, 22, 30, 31, 32, 34, 35, 36, Navy Dept., 1886; Do. 17, 18, 36, Id., 1889; Do. 32, Id., 1892. And see Do. 26, 27, 49, 79, Id., 1893; Do. 4, Id., 1894. In Do. 4 & 5, Id., 1887, the form Is— "To be confined in Irons In port, and as a prisoner at large at sea, untU," &e. '• Confinement " In light prison," and " in dark prison," are forms peculiar to the discipline exercised over Cadets. See Regs. Mil. Acad., par. 107. "In some Instances during the late war persons were sentenced by court-martial to be confined in a " fort " or " fortress." See Vallandigham's Case, in G. O. 68, Dept. of the Ohio, 1863. ^ , . „ " Sentences simply of " hard labor," or of " hard labor on the public works, or of certain particular labor or labor on particular works— ^as fortifications bridges, roads, &c., or in breaking stone— unconnected In the sentence with confinement, were not unfreqnently Imposed during the late war. See G. O. 11, Dept of the Mo 1862 : Do. 72, Id., 1866; Do. 11, 44, Id., 1867; Do. 101, 102, Dept. of the East, 1864; G. C. M. O. 16, Army of the Potomac, 1864. , „ ^ r, n t Two exceptional sentences of this class are found in the early Orders-G. O. of Oct 31 1820, and Do. 56 of 1824— as follows: To serve at hard labor for a certain term " with an Iron collar around Ms neck weighing eight pounds ; and to similarly serve " chained to a wheelbarrow." "See DIGEST, 441; Simmons S 684; Clode, M. L., 171. The two punishments are referred to as distinct to our 83d Article, in par. 1019, Army Regs., and in the British Army Act S 44. 422 MILITAEY LAW AND PRECEDENTS. noticed— where necessarily involved In the peculiar species of punishment ad- judged, as In the case of confinement in a penitetiary" 643 Confinement in a penitentiary- This form of imprisonment, which had previously been recognized by the legal authorities as a punishment sanctioned by usage for military ofEenders," was specifically authorized and provided for in a section of an Act of Congress of July 16, 1862, now incor- porated in the 97th Article of war"— as follows: — "No person in tlie miUtary service shall, under the sentence of a court-martial, he punished by confine- ment in a penitentiary, unless the offence of which he may he cowoicted would, hy same statute of the United States, or by some statute of the State, Terri- tory, or District in which such offense may he committed, or hy the common law, as the same exists in such State, Territory, or District, subject such convict to such punish/ment," The effect of this provision was to add confinement in a penitentiary to the punishments which may be adjudged by courts-martial of the Army," when the offence is of the class specified in the statute. That is to say, a court-mar- tial is authorized to impose this penalty only upon a conviction of an offence of a dvil nature cognizable by such court — as embezzlement, larceny, robbery, homicide or other crime, properly so cognizable under Art. 60 or 62, or in time of war, under Art. 58 — and which is also punishable under the local criminal law. For a purely military offence, as desertion, mutiny, misbehavior before the enemy, etc., this pvmishment cannot legally be imposed." 644 It is here to be noted that by the recent Act of March 2, 1895, c. 189, by which the Military Prison at Leavenworth, Kansas, is "transferred from the Department of War to the Department of Justice, to be known as the United States Penitentiary," the use of this prison for the confinement of persons " convicted by courts-martial " is expressly restricted to those who " In the Navy where the confinement is on board ship, " single irons," or " double Irons," are not unfrequently added. In a case in G. C. M. O. 48, Navy Dept., 1892, where was imposed a sentence of confinement at hard labor on shore, the Secretary of the Navy observes — " In view of the impracticability of employing prisoners at hard labor In naval prisons, the part of the sentence relating to liarA labor is remitted." It is a further practice in the Navy to add the penalty of eaitro police duty to sen- tences of confinement. This is sometimes imposed " during the term of confinement," and is sometimes limited to certain days or hours. " Daily," (or during specified hours of the day,) " Sundays and holidays excepted," Is a frequent form. M Dynes v. Hoover, 20 Howard, 65 ; 9 Opins. At. Gen., 80 ; 10 Id., 158, 248. " Appropriation is annually made by Congress, generally in the " sundry civil " ap- propriation Act, for the cost of the " care, clothing, maintenance, and medical at- tendance," of military convicts confined In State penitentiaries, under this Article of war. «"ln the Navy, this punishment in cases of officers is of rare occurrence. A case of an officer, in which It was resorted to, is found in G. C. M. O. 27, Navy Dept., 1887. In Em parte Van Vranisen, 47 Fed., 888, It was held that under Art. 7, of the Articles for the Navy, it could be adjudged only for a capital offence. « Digest, 113, 115 ; G. O. 4 of 1867 ; Do. 21, Dept. of the Platte, 1866 ; Do. 21, Id., 1871 ; Do. 44, Eighth Army Corps, 1862 ; G. C. M. O. 34, 35, 43, 46 72, 73 Dept of the Mo., 1870. In Ex parte Mason, 105 XJ. S., 700, a case of assault with intent to kill in viola- tion of the 62d Article, the Supreme Court say— "When the act charged, as 'Conduct to the prejudice of good order and military discipline,' is actually a crime against society which is punishable by Imprisonment in the penitentiary, It seems to us clear that a court-martial is authorized to Infiict that kind of punishment • • • The 97th Article does no more than prohibit the court from sentencing the offender to imprisonment in a penitentiary In a ease where, if he were tried for the same act in the civil courts, such imprisonment could not be infiicted." And see to a simUar effect, In re Esmond, 5 Maekey, 64— a case of larceny charged under Art 62 MILITARY LAW AND PEECEDENTS. 423 have been "convicted of offences now punishable by confinement In a peniten- tiary, (and sentenced to terms of imprisonment of more than one year") A soldier convicted of a purely military offence can therefore no longer legaUy be confined at the Prison at Leavenworth. In resorting to penitentiary confinement in a case of Iwrcm/y, a court-martial should assure itself that the property stolen Is of such value as to admit of this form of Imprisonment under the civil statute."* By the term " penitentiary," as used in the Article, is understood any public civil prison— as the new U. S. penitentiary at Leavenworth, Kansas, aforesaid, the U. S. penitentiary in the District of Columbia, or the prisons "erected by the United States " * in the several Territories, or those established by the laws of the different States "—In which prisoners are subjected to a course of discipline and labor. A sentence of confinement in a penitentiary is one In which the penalty of "hard labor" is necessarily involved," and In which therefore it need not be added in terms. A court-martial, in adjudging this punishment, should leave the designation of the particular penitentiary to the reviewing ofllcial. The usual form in the sentence is — " To be confined (for a certain term specified) in such 645 penitentiary as the reviewing or proper) authority may designate.""' The Army Regulations— par. 1022— contemplate that the court will indicate In terms In the sentence a " penitentiary " as the place of confinement, if such Is intended. Where the sentence, however, imposes confinement in " such prison " or " such place " as the proper reviewing contmander may designate, and the offence of which the accused is convicted is one within the description of the Article, the commander may legally designate a penitentiary as the place of imprisonment.'" Dismissal in the case of an officer, and dishonorable discharge in that of a soldier, should be added In a sentence imposing this form of confinement." Term of ixaprisonment in greneral. The term of imprisonment imposable by a general court-martial is, (except in the two minor species of confinement appropriate to enlisted men only, and yet to be noticed,) without other limit than such as is prescribed — as to the maximum penalty — by G. O. 16 of 1895, and such as may be prescribed inferentlally, in time of war, by Art. 58. In the late war, imprisonment for ten, fifteen, eighteen and twenty years," «8 G. C. M. 0. 17 of 1887 ; Do. 9, Dept. of the Mo., 1886. »See Sec. 1892, Rev. Sts. " Digest, 114. And see par. 1023, Army Regs. The penitentiary at Albany, New York, has heen resorted to more frequently than any other State Institution. In the recent case of Sgt. Mason, (G. C. M. O. 26, Dept. of the Bast, 1882,) the order as to the execution of the confinement In a penitentiary adjudged hy the court, is — " Subject to approval of the Secretary of War, the penitentiary at Albany, N. Y., Is designated as the place of execution." •' Millar v. State, 2 Kans., 174. MA usual form in the Navy, where the fleet, &c., is at sea or In a foreign port, is — " To be confined on board such vessel, (of the squadron,) as the Commander-in- chief of the Station may direct, until such time as he (the offender) may be sent to the United States in a public vessel ; and then in a penitentiary to be designated by the Secretary of the Navy." " G. C. M. O. 8, Dept. of Arizona, 1892 ; Do. 10, Dept. of the Mo., 1894. " See G O 36, 58, 72, Army of the Potomac, 1862 ; Do. 50, Id., 1864. « See instances In G. O. 397 of 1863 ; Do. 1 of 1864, G. C. M. O. 210, 506, 577, 582, 625, of 1865 ; Do. 95, 153, 154, 186, of 1866 ; G. O. 90, Dept. of the Gulf, 1863 ; Do. 14, 27, Mil. Dlv. West Miss., 1865 ; also Gen. Mack's case. Hough, (P.) 161. 424 MILITAEY LAW AND PEEGEDENTS. and even for life," were In some instances imposed for specially aggra- 646 vated crimes. To be imprisoned " during the war " was at that period also a not unfrequent form." Sentences of confinement "during the remainder of the term of enlistment" of the soldier were then also more com- mon than now." At present— in time of peace— the term of imprisonment fixed for desertUm is from three months to five years:" the latter limit is also rarely exceeded for any other offences, except aggravated Instances of violent crime taken cognizance of under Art. 62." As to the term of confinement in a penitentiary, this is not limited or affected by Art 97 above set forth, and, where the sentence is discretionary — as under Art 60 or Art. 62 — may, (subject to the law fixing maximum punishments,) be imposed without regard to the provision of the civil statute fixing the term of punishment for the act as a civil crime. While such provision may well be taken into consideration in estimating the proper measure of punishment for the ofEence found, the court may, in its discretion, (subject as above,) con- siderably exceed the limit of the statute."" Imprisonment after discharge or expiration of term of enlistment. It Is now settled by the long-continued usage of the service and practice of the War Department that a military offender may be sentenced to an imprisonment continuing after he has been discharged — i. e. that lie may be sentenced to be dishonorably discharged and then imprisoned for a certain term. The legality of such imprisonment consists in the fact that, after the discharge, the party is held confined not as a military person but as a cviAlian convict — as an offender against the laws of the United States under the sen- tence of a tribunal authorized by public statute to punish at discretion the offence committed. 647 Upon similar grounds It is equally settled that a court-martial may legally sentence a soldier to a term of imprisonment which must neces- sarily extend beyond the period of his existing term of enlistment, and that the soldier may legally be held confined under the sentence beyond such term, In full execution of the punishment.^ Execution of the punishment of imprisoninent. Confinement at a rmlitary prison, which was executed at a great variety of fortified posts during the late « See Instances in G. O. 335 of 1863 ; G. C. M. O. 391 of 1865 ; G, O. 1, defences of Washington, 1863 ; Do. 70, Dept. of the Mo., 1865 ; Do. 19, Dept. of the Gulf, 1865; Do. 52, Dept. of the Pacific, 1865; Do. 30, Dept. of So. Ca., 1866; Do. 37, Dept. of Va. & No. Ca., 1863 ; G. C. M. O. .39, 42, 93, Id., 1865 ; Do. 25, Dept. of Ky., 1865; Do. 31, Fourth Mil. Dist., 1867; Do. 23, Id., 1868; Do. 59, Id., 1869; Do. 153, 175, Fifth Id., 1869 ; Do. 53, Id., 1870. Imprisonment for lUe was still more frequently imposed by Military Commissions. •" See case of sentence of imprisonment " for during the war in Missouri," in G. O. 10, Dept. of the Mo., 1863. "In such sentences courts should indicate the date on which the enlistment of the accused expires, (if It does not appear from the specification,) so that the reviewing officer may be at once advised of the exact term of imprisonment adjudged and facili- tated as to his action. See Digest^ 440. » See G. O. 16 of 1895. "As in case of Sergt. Mason, (G. C. M. O. 26, Dept of the East, 1882.) i" Digest, 114. And see Ew parte Mason, 105 U. S., 696, where the term adjudged, of eight years, is recognized as legal. • See O'Brien, 276 ; G. C. M. 0. 61, Dept. of Dakota, 1884 ; Barrett v. Hoplclns, 7 Fed., 312. As to the effect of a sentence, imposing imprisonment until or heyond the expiration of the soldier's term, in forfeiting his retained pay, see G. C. M. O. 56 of 1881. MILITABY LAW AND PRECEDENTS. 425 war,' is now (since the Military Prison at Leavenworth, Kansas. Has been superseded as already mentioned,) executed at the prison on Alcatraz Island in t^e harbor of San Francisco, or at any place of confinement established at a military post. Confinement at hard labor is executed-at places other than the late Mili- tary Pnson-now U. S. Penitentiary-at Fort Leavenworth-by employing the prisoners in road-making, bridging, erecting or repairing of fortifications or quarters, gardening, wood cutting, poUcing, &c. At Leavenworth this punish- ment is executed by means of the " labor and trades " prescribed for the prison- ers by Sec. 1351, Rev. Sts., and the manufacturing of supplies for the army authorized to be done by them by the Act of March 3, 1879, c. 182. But as heretofore remarked, persons sentenced or committed to the Leavenworth prison, are subject to be put at the labor and employments indicated in the statute, whether " hard labor " be or not expressly imposed by the sentence. A sentence to hard labor is not legally executed by putting the prisoner at light work, or work less severe or continuous than that required of other prisoners held at the same prison and similarly sentenced. The provision of the Act of June 25, 1868, known as the "eight- 648 hour law," does not apply to prisoners employed at hard labor under sentence of court-martial.' Confinement in a penitentiary is executed by the forwarding of the prisoner under guard to the penitentiary designated by the proper authority,* and his deUvery, with copies of the necessary orders, &c., to the warden or other offi- cial in charge. Upon his commitment, the miUtary prisoner becomes subject to the same government and discipline and to the performance of the same labor as are the civilian prisoners. Period of execution. The point of time at and from which a sentence of Imprisonment for a definite term begins to he executed, in the absence of any statutory provision on the subject, is now fixed by par. 1025 of the Army Regulations," which declares that "when the date is not expressly fixed by the sentence or the order promulgating it," (as it rarely is,) "the term of confinement begins at the date of such order." Thus beginning, the execution, regularly, continues to the end of the term of years, months, &c..' adjudged by the court, or tiU the happening of some event — as the payment of a line — ^upon which its duration may be expressly made by the sentence to depend, or till a pardon, or remission of the unexpired portion of the punishment, granted by the competent authority; subject also to the possible abridgment of the period by a credit gained by good conduct, a matter presently to be noticed. As heretofore remarked, the fact that the soldier, being sentenced with the confinement to dishonorable discharge, has been discharged accordingly, or that the term for which he enlisted has expired pending the confinement, 'Among the principal were Forts Preble, Adams, Warren, Wood, Schuyler, Lafayette, Mifflin, Delaware, Whipple, Norfolk, Macon, Pulaski, Marlon, JefFerson, Pickens, Pike, the Rip Raps, Dry Tortugas, Johnson's Island, Camp Chase, Camp Hamilton, Ship Island, and the posts of Wheeling and Nashville. • See G. O. 71, Dept. of the South, 1869. *As indicated in Army Regs., par. 1023. "As last amended by G. O. 8 of 1894. The regulation concludes — "The sentence is continuous until the term expires, except when it cannot be executed on account of the unauthorized absence of the person sentenced." The execution of a cumulative sentence of confinement commences of course upon the expiration of the term of the previous sentence. See post. ' " In calculating the period of imprisonment, the day on which the sentence com- mences, and that on which the prisoner Is to be released, are both to be counted." Simmons § 779. 426 MILITARY LAW AND PRECEDENTS. affects in no manner the due course of the execution of tlie punishment. 649 The military jurisdiction having once duly attached in his case while he was a soldier, and he having been as such duly tried and convicted, and his sentence of confinement having been duly approved, it is immaterial to its execution whether he actually remain or not in the military service, his status being now simply that of a public prisoner held by the authority of the United States as an offender against its laws. Commencing as indicated, the term of the execution continues to run without regard to any intermediate periods during which the prisoner, though in military custody, may not be undergoing the specific confinement adjudged,'— as a period during which he is detained at a depot or elsewhere before being forwarded to the place of confinement, or during which he is being transferred to such place, or from such place to another when the place of confinement is changed by competent authority,* or during which he may be held in hospital or his quarters under medical treatment." Otherwise, however, as to a period of unauthorized absence from military custody, occasioned by an escape; the party, on recapture, being legally remanded to serve out the period of his sentence which remained to be served at the date of the escape." So, if he be taken prisoner by the enemy, his confinement will legally comimence, or ire-com- mence, after his exchange or parole and return. That the period of an arrest in confinement before trial, or before final action upon the sentence, however unreasonably protracted, cannot legally be credited upon the term of imprisonment imposed by the sentence, in executing the same, and that the reviewing authority, if he thinks it just and proper that this period should be deducted from the term adjudged by the court, can do so only by a proportionate mitigation of the sentence in approving the same, 650 or, subsequently by a partial remission, — is also well established.'' Remis- sions of what is commonly known as " guard-house time " are not unfrequent in practice. Time credits. The term of imprisonment may, however, legally be abridged in its execution where the prisoner, by good conduct pending his confinement, becomes entitled to such abridgment under the law. By the Act of Congress of March 3, 1875, — " all prisoners convicted of any offence against the laws of the United States, a/nd confined in execution of sentence in any prison or penitentiary of any State or Territory, (which has no system of com- mutation for its own prisoners,) shall have a deduction, from their several terms of sentence, of five days in each and every calendar month during which no charge of misconduct shall have been sustained against them, and shall he discharged at the expiration of their several terms of sentence fess the time so deducted." In view of this Act, (as also of the provision of Sec. 1352, Rev. Sts., authorizing in general terms a similar indulgence for the convicts at the late Military Prison — now TJ. S. Penitentiary — at Leavenworth,) a General Order, (No. e-l,'") was, on June 21, 1875, issued from the War Department, by ' See Simmons § 782. ' Par. 1027, A. R., declares — " The authority which has designated the place of con- finement, or higher authority, may change the place of confinement." Of course, in the procedure of transfer, the punishment must not be added to. An unauthorized transfer of a prisoner is in the nature of a trespass upon him, (Clode, M. L., 171,) and entitles him to be discharged upon habeas corpus, as from an illegal imprisonment. In re Allen, 7 Jurist, 234. • Simmons I 783 ; GrifBths, 152, 176 ; Harcourt, 168 ; De Hart, 249. "Simmons I 784; Griffiths, 172. " G. O. 105 of 1874 ; Par. 1028, A. R. "Now made an army regulation— par. 1045, A. R., which has recently been amended by G. O. 40 of Aug. 29, 1894. MILITARY LAW AND PEECEDEHTTS. 427 which the rule prescribed in the Act was applied to military prisoners, as follows:— "To equalize the practice in regard to punishment of military pris- oners, so far as practicable, an abatement of five days for each month of con- secutive good conduct may be allowed upon each sentence to confinement for over six months." And it Is directed that the commanders of the Departments in which the places of confinement are situated shall issue the special orders for the release of the prisoners who shall become entitled to the allowance. Since the poUcy of the Government in regard to its convicts has thus been extended to military cases, a large majority of the prisoners confined both at Fort Leavenworth and Alcatraz Island have always been induced so to conduct themselves as to earn and receive considerable abatements of their terms of imprisonment." 651 Execution of cumulative sentences of imprisonment. As has already been indicated in this Chapter, a sentence of imprisonment duly adjudged a military person who is at the time undergoing a sentence of the same char- acter, (or who has received such a sentence which however has not yet been approved or commenced to be enforced, but is duly approved presently,) is cumulative upon the earlier sentence and to be executed accordingly, i. e. its execution is to follow immediately upon the completion of the execution of the former punishment, and to proceed in due course till Itself completed. This principle is now Incorporated in par. 1029, A. B., where it is declared, in general terms — " When soldiers, either undergoing or awaiting sentences, com- mit offences for which they are tried and sentenced, the second sentence will be executed upon the expiration of the first." rORrEITtrBE or pay, &c. — ^Authority for this punishment. This, though in terms authorized as a punishment by the Articles of war in one in- stance only — Dig, by Art. 101 in connection with suspension from command " — is in fact authorized, by the usage of the service, wherever the sentence ia dis- cretionary with the court, and, in cases of soldiers, is the most frequent of all the military punishments. Distinguished from fine, &c. Forfeiture is to be distinguished from fine, a punishment which imposes a pecuniary liability in general, not necessarily af- fecting pay ; " and also from stoppage, which is not properly a punishment at all but a charge on account, sometimes indeed resulting from punishment as a mode adopted for executing the same." Different forms of forfeiture. Forfeiture by sentence may be expressed in different forms according to the particular pay or amount of pay In- 652 tended to be affected. Thus the forfeiture may be general and entire, viz. of "all pay dtte," or — a form which ia usual where the officer or soldier is detached from the service by a dismissal or dishonorable discharge adjudged by the same sentence, and the object is to cover all possible claims to pay up to the date of the actual execution of the sentence — of " all pay due or to become due." Such a full and absolute forfeiture covers, with the or- dinary pay, all retained pay, additional pay, merit pay, &c. Where It is not intended by the court to deprive the accused of his entire pay, the sentence may Impose a forfeiture of his pay. for a month or months, or of a portion — as "As to the regulation of this abatement at 'the Military Prison, see the Regulations for its government in G. O. 4 of 1891. " As to the nature of this forfeiture see " Suspension," ante. '^ See under " Fine," ante. «As to the discretionary authority of the Secretary of War, under Sec. 1766, Rev. Sts., or par. 1489, A. K., to order a stoppage of the pay of an officer In arrears to the United States, see Billings v. U. S., 23 Ct. CI., 166. A judgment against the officer Is not essential to authorize a stoppage. 17 Opins. At. Gen., 30. 428 MILITARY LAW AND PRECEDENTS. one-half, or so many dollars— of such pay," or simply of so many dollars In general terms, or of the pay or a portion of the pay " for the same period " as that of the term of an imprisonment (or suspension) adjudged in the same sentence. A sentence, in forfeiting certain pay, may except from the for- feiture an amount stated, to be rendered to the soldier for his use or benefit." Such exceptions, however, are much more rare in the military than in the naval practice. The forfeiture of « allowances." The forfeiture may include " allowances " with pay, though a forfeiture of " pay " alone will not embrace allowances." A forfeiture of " pay and allowances " afEects, with his pay, any money-com- mutations or other pecuniary emoluments incidental to the office, rank, or duty of the party and due him at the date on which the sentence takes effect — as the allowance for quarters In the case of an officer, and the allow- 653 ance for clothing In the case of a soldier." A forfeiture of allowances other than pecuniary — as of rations or clothing as such, would not now be sanctioned by the usage of the service." The forfeiture to be to the TTnited States only. We have heretofore noticed the principle that a court-martial can neither forfeit pay for the benefit of an individual, nor by its sentence direct as to its disposition." All forfeitures of pay accrue to the United States, and the disposition of the same as public funds is a matter belonging to the province of Congress." It must be express, and clearly defined. A further principle governing this subject is that pay can be forfeited only in express terms — that a forfeiture cannot be involved in any other penalty. A simple sentence of death," dismis- sal, dishonorable discharge, or imprisonment, cannot affect the right of the party to such pay as may be due him at the date of the approval or execution of such sentence. Where, therefore, the court intends to forfeit pay, it must express its intention in terms : pay cannot be forfeited by implication. That the terms of the sentence declaring the forfeiture should be so clear and precise that the specific pay and amount of pay proposed to be divested may fully appear; and that the nature and extent of the forfeiture should be " As to the effect of a forfeiture of a portion of the monthly pay, see par. 1032, A. E. >" See Chapter XXI — " Mitigation," and G. O., Dept. of the South, of 1881, referred to in note. In the Navy, courts-martial, In sentencing offenders to confinement and forfeiture of pay, frequently except from the amount forfeited so much as may be necessary for " prison expenses," and also a certain small sum to be paid the party on discharge. In a case of this class in G. C. M. O. 22, Navy Dept., 1887, where the sentence, tn-ter alia, is " to lose pay and clothing allowance," It Is added — " except $2 per month, and such articles of clothing aa may be actually necessary for his use." » Digest, 418, 560, 731 ; McNaghten, 27. » In U. S. V. Landers, 92 U. S., 77, in which it Is held that the term allowances In- cluded bounty-money, (and see, to the same effect, 13 Opins. At. Gen., 198,) the court say that — " under the term allowances everything was embraced which could be re- covered from the government by the soldier. In consideration of his enlistment and services, except the stipulated monthly compensation designated as pay." And see Sherburne v. V. S., 16 Ct. Cl., 491. • "Sentences forfeiting all clothing, &c., "except fatigue clothing;" and sentences expressly excepting from a forfeiture of pay and allowances "the necessary clothing and subsistence," or in terms to such effect, are found in the early G. O., but have been long disused in practice. Forfeiture, by sentence, of pension, as an "allowance" or otherwise. Is unknown to our military law. "" See par. 1035, A. E. »Clrc. No. 4, (H. A.,) 1886. As to the appropriation of forfeitures, ("stoppages or flues,") adjudged by court-martial, to the support of the Soldiers' Home see Sec 4818, Eev. Sts. ' M Major Herod's Case, 13 Opins. At. Gen., 103. MILITABY LAW AND PRECEDENTS. 429 evident from the sentence itself without any reference to other source of information being required — are points which have already been illus- 654 trated under a previous general head." An instance in which the omis- sion to define the forfeiture intended has caused embarrassment is that of the class of sentences in which a non-commissioned officer is adjudged to be reduced to the ranks with forfeiture of a certain part of his monthly pay. Here it has sometimes been difficult to determine whether the forfeiture ap- plied to pay due the soldier as a non-commissioned officer or to pay to become due him as a private." Forfeiture as a punishment in general. While forfeiture is the most efiEective of the minor punishments when judiciously imposed, it may yet be so employed as to be subject to serious objection. Thus depriving an officer or soldier of his entire pay, while retaining him in the army, (i. e. not dismissing or discharging him in the sentence,) — ^leaving him nothing for the support of his family, or for the purchase of articles necessary to health, cleanliness, &c. — has been commented upon as in general contrary to public policy and detrimental to the interests of the service," and is now most rarely resorted to. Execution of this punishment. Where the operation of the forfeiture is specifically limited by the sentence itself to a particular period, as where it is imposed for the same period as a term of imprisonment or suspension ad- judged in the same sentence, there Is nO difficulty in defining the execution of the forfeiture, the same being concurrent with the term of the principal punishment as determined by the general rules heretofore considered. Where the operation of the penalty is not thus fixed bj the sentence, the date or mode of its execution will depend upon the nature and extent of the forfeiture. Where the sentence in general terms forfeits all pay due, the forfeiture, as a general rule, attaches upon the approval of the sentence by the proper authority, and to such pay as may then be due and payable to the accused. The approval, ex vi, by operation of law, divests his right to 655 such pay and the same thereupon accrues to the United States. Where, however, pay due is forfeited in connection with dismissal or dishonorable discharge imposed by the same sentence, the forfeiture is in general to be considered as intended to take effect simultaneously with the execution of the dismissal by which the miUtary service of the party, and with it— regularly— his right to pay, is terminated. Where the sentence forfeits pay both due and " to become due," the for- feiture attaches both to pay due at the date of approval and pay accruing monthly thereafter so long as the party remains in the service.'' Where the forfeiture is not of the entire pay of the party but of a portion only— as the pay of one month or several months, or a fraction or specified number of dollars of the pay of such a period, or simply a certain number of dollars of his pay in general— such forfeiture may legally be, and, it would seem, should be, satisfied out of any amount-whenever accrued-which may be due and payable to the soldier at the regular bi-monthly or other payment next after the approval of the sentence, or out of such amount so far as it "See a»f^" Principles governing the framing of the Sentence," also G. C. M. O. 65, Dept. of Dakota, 1880. "s:: rn: 0.r5; Dtpt/o^TetlX; «. O. ... nept. Of the Mo., X882 ; Clode. ^^/or^L?."L sentence he re.ltte. ^^Z.^' J^' ^^^'J^^:^ Th^ of a deserter, such a sentence '^°'^^^,^^^^^"?J.JL..^^y divested by operation of apprehension or surrender, that accrued before being already aivesiea a y law, unders pars. 132, 1514, A. R, 430 MILITABY LAW AND PRECEDENTS. wlU go, where it is less than the amount of the forfeiture, leaving the remainder to be satisfied at the succeeding payment or payments. In practice, however, it seems to have been preferred to exclude from the application of the for- feiture pay due and payable at the date of the approval, and to apply it only to pay accrued subsequently to that date." Where pending the execution of a forfeiture of a certain amount of Jay or a certain number of months' pay, the term of enlistment of the soldier comes to an end he cannot be retained in the service for the purpose of satisfying the for- feiture and until it is satisfied, but is entitled to be discharged equally as if no forfeiture had been adjudged in his case. Nor, if he thereupon or subse- 656 quently re-enlists, can the unsettled forfeiture be revived as a charge against his pay. For, a pecuniary liability incurred under a certain enlistment can legally constitute an offset only against the amount payable for services under that contract, and can no more be charged against the pecuniary consideration of a new and distinct contract than it can against the pay of another soldier. A forfeiture adjudged after, or pending the execution of, a separate for- feiture, and expressed in general terms, or not specifically restricted to a distinct period, becomes cunmlalme upon the earlier one, and is to be executed as an additional liability."' Where the forfeiture is unauthorized in amount. In Circular No. 12, (H. A.,) of 1892 it was declared — "When a sentence of (confinement or) for- feiture is in excess of the legal limit, that part of it which is within the limit is legal, and may be approved and carried into execution." This would «pply to the punishments of inferior courts, and to the punishments exceed- ing the maximum limits fixed by the order of the President. The ruling, if of doubtful authority, certainly conduces to discipline and to the convenience of administration." Official noting of forfeiture and action of paymaster. In all cases where soldiers remaining in the service are subjected to sentences of forfeiture, the amount and particulars of the forfeiture, with the date, number and sourtfb of the General Order approving and promulgating the sentence, should be noted by the company or other proper commander opposite the name of the soldier upon the Muster-and-Pay EoU made out for the command next after the pub- lication of the sentence at the post or station. The forfeiture will then be enforced by the paymaster who pays the command and who will either deduct the amount of the forfeiture from the amount of pay accruing to the sol- dier, or will omit to pay him altogether, according to the extent of the forfeiture and the nature of the sentence. The forfeiture, if not cancelled at the first payment, must be continued to be noted on successive rolls till fully discharged.'' 657 Effect of a remission upon execution of pending forfeiture. A re- mission in whole or in part of a pending forfeiture may and properly should, in the opinion of the author, take effect upon any pay accrued and payable, and not actually forfeited, at its date. Thus if a soldier is sentenced in January to forfeit two months' pay, and in February the forfeiture is re- "See par. 1032, A. B. TTnless the rule here declared has been adopted for reasons of convenience to the Pay Department, I can perceive no justification for it. It Vfould appear to be implicated with the direction in the last clause of par. 1034, as to vrhich see post. " Compare par. 1034, A. R. "See a recent case in G. C. M. O.. 4, Dept. of the East, 1894, of the approval of that proportion only of a forfeiture which was considered to be within the legal lim' »" See G. O. 89 of 1883. MILITART LAW AND PEECBDENTS. 431 mltted, he would be entitled, at the bi-monthly payment at the end of February, when his pay account for the two months is regularly settled, to receive his full pay for the two months, the forfeiture being entirely removed by the remission. The practice, however, is not In accordance with this view, being governed by par. 1034 of the Army Regulations, which declares that- An order rermtting a forfeUure of pay operates onlv on the pay to become due subsequent to date of the order." In adopting this rule, for the con- venience quite evidently of the Pay Department, it was apparently not perceived that It has the effect of restricting the plenary pardoning power vested in the President and that exercisable under the 112th Article of war, and is thus without legal authority. III. Punishments Legal and Apphopeiate for Enlisted Men Only. These are deduction. Dishonorable Discharge, Solitary Oonfinement, Con- finement on bread and water diet. Ball and Chain. REDUCTION. — Nature of and authority for the punishment. This pun- ishment, commonly termed reduction to the ranks,^ consists in our service, in the degrading of a non-commissioned officer— sergeant or corporal of a com- pany—to the rank and status of a private." Reducing to an interme- 658 diate grade, as from sergeant to corporal, is not known to our law." The punishment, as adjudged in our practice, is absolute, i. e. without limitation as to term.^ It is specificaUy mentioned in a single Article of war, the 37th, where it is required to be imposed upon conviction of the offence of conniving at the hiring of his duty by a soldier. By the authority, how- ever, of the usage of the service, recognized indeed in par. 1019 of the Army Regulations, it may be imposed by any court-martial wherever the sentence is discretionary. Reduction by sentence as a punishment is to be distinguished from the reduction authorized by the Army Regulations, (par. 254,) which may be ordered by the commander of a regiment. Properly adjudged with confinement. As has already been remarked, — when a term of imprisonment is adjudged a non-commissioned officer, the sentence should also embrace reduction. This for the reason assigned by the authorities, that to retain the sergeant or corporal under the circumstances in his rank must tend to degrade the same and detract from the respect due to it, and that therefore, when thus punished, he should be punished as a private soldier. In such a case also the sentence should properly be so worded as to require or allow the reduction to take effect before the imprisonment Is entered upon." ^ It was formerly sometimes designated as reduction to the " rank " or " station " of a " private sentinel." See Tytler, 318 ; Macomb, 62 ; also cases in the early General Orders. The following are forms of sentences of reduction found in the G. C. M. O. of the Navy : — A " seaman, to be disrated to landsman ; " A " seaman-apprentice " — to " sec- ond-class apprentice ;" A " flrst-class fireman " — to the " next inferior rating ; " The same — to the " rate of a coal-passer ; " A " boatswain's mate, second class," to seaman ; A " bayman " to " landsman ; " A " writer, second class, to the rating of landsman." '*A non-commissioned officer of the Engineer Battalion may be reduced to a private of cither the first or second class, established by Sec. 1155, Eev. Sts. See a case of such reduction to a private of the " second " class in G. C. M. O. 70 of 1868. A reduction, by sentence, of a sergeant " to the grade of a recruit," was properly held illegal, there being no such grade. G. C. M. O. 21 of 1893. '" Otherwise in the British code. Army Act § 44, 183. '" In G. O. 76 of 1824, is a case of a corporal sentenced " to perform the duties of private sentinel for one month." Such a sentence would not be warranted by present usage. "See Hughes, 95; Hough, (P.,) 734. 432 MILITARY LAW AND PKBCEDBNTS. Beduction with ignominy. In some few cases reduction has been made ignominious, i. e. has been directed in the sentence to be accompanied by the cutting off, in the presence of the command, of the chevrons and stripes of the non-commissioned officer.'* 659 Executioi^ of the punishment. This is a punishment which, like dis- missal in the case of an officer, executes itself, taking effect, as it does, at once upon the approval of the sentence and notice to the accused. Upon the promulgation and announcement to him of the approval by the competent authority, he ceases forthwith to be a non-commissioned officer and becomes a private, no further act being requisite to make the punishment operative in law: his pay also is from the same date correspondingly reduced. He cannot however legally be required to surrender his warrant as sergeant or corporal, unless it is expressly declared therein, or is accepted by him upon the express condition, that it shall be surrendered upon reduction. A non-commissioned officer duly reduced by sentence remains reduced, (and borne on the muster-rolls as a private,) till the end of his enlistment, or till the punishment, (which is a "continuing" one,) is remitted by the competent pardoning authority. But even a remission will not restore him to his former rank if the vacancy caused by his reduction has been filled. In such a case he cannot, after remission, be restored till a vacancy occurs and he is reap- pointed by his regimental commander. Seduction of officers. By two statutes enacted and in force during the late war, reduction to the ranks was authorized as a punishment for commissioned officers. These were the Act of March 3, 1863, c. 75, s. 22, empowering courts- martial — "to sentence officers, who shall- absent themselves from their com^ mands without leave, to be reduced to the ranks to serve three years or dur- ing the war; " and the Act of the same date, c. 120, s. 6, requiring the imposi- tion of this punishment upon officers convicted of failing to tui-n over to the proper official " captured or abandoned property " coming into their possession. No case is known of a conviction under the latter statute, and but few trials were had under the former." No Act passed since the war has 660 authorized such punishment. Reduction of officers in grade — as from captain to lieutenant — is also unknown to our law." »See Instances in G. O. 11 of 1849; G. C. M. O. 70 of 1868, G. O. 46, 67, Army of the Potomac, 1861. In G. C. M. O. 7, Navy Dept, 1887, is a sentence of a non- commissioned officer of Marines — " To be reduced to the rank of private, and to liave his insignia stripped ofE in presence of all the marines at the station." »• Instances of officers convicted under this statute and sentenced to reduction are published in G. O. 27 of 1864 ; Do. 80, Dept. of the Gulf, 1863 ; Do. 38, Dept. of the East, 1864; Do. 36, Middle Dept., 1864; Do. 5, 2d Dlv., 5th Army Corps, 1864; G C. M. O. 26, 51, Army of the Potomac, 1864 ; Do. 12, Id., 1865. Reduction Is authorized of cadet ofilcers, (Mil. Acad. Regs. § 107,) but these are not commissioned officers of the army. Reduction is a recognized punishment for officers in the European armies See recent case of the reduction to the fanks of a Russian general officer by the Czar In 1892 N. T. Herald, September, 1892. In 1887, the Czar commuted to this punishment the sentences of exile to Siberia of eighteen young officers convicted of engaging in a revolutionary conspiracy. N. T. Herald, Nov. 30, 1887 n.r,cHh?r;h!r!r' ""^ i^- ^- ^;..?- ^^ °^ ^^^^-^ * ^^^t^-^^^- «'*<«-«'«^<«» ^tuara^n, prescribed that the accused, m addition to suspension, should be reduced to a lower grade and rank m his corps. Upon this it is remarked by the President as follows- The provision that the accused shall, after a suspension for the period of oneT^ from rank and du^f in the office now held by him, be placed In another office of lower rank in the department of which the office now held by him is a part Is one imZ sible Of enforcement by the Executive alone. That offl'ce of lowerTn'k can on^be filled m the method pointed out by the Constitution, namely, nomination by the Presi dent a.^ confirmation by the Senate, and then only in case of an existing vacancy The amended sentence, in effect, creates an office and fills it, thus at once embodying t^e MILITARY LAW AND PEECEDElfrTS. 433 DISHONORABLE DISCHARGE,— Nature of and authority for the pun- ishment. This punishment corresponds to dismissal in the case of an officer, in that it expels the offender with disgrace from the army and remands him to the status of a civilian : it entails however no legal disability either military or civil." It is to be distinguished from the discharge given by executive order, as authorized by Art. 4, the latter being, not a putdshment, but a mere re- scinding or discontinuance of a contract." Dishonorable discharge, though not expressly required or authorized to be adjudged for any particular offence by the Articles of war, is indicated in general terms by Art. 4, as a penalty which courts-martial may award, and is recognized in the Army Regulations, (par. 1019,) as a legal punishment for enlisted men : it may thus be imposed wherever the sentence rests in the dis- cretion of the court. When properly resorted to. This punistiment is usually and properly ad- judged by courts-martial in connection with terms of imprisonment 661 in a military prison or penitentiary ; it being in general regarded as for the interests of the service that a military convict, before being subjected to a protracted confinement, should be formally separated from the army." The view has also been repeatedly declared In General Orders that dishonorable discharge aUme is not an adequate or proper penalty for desertion or other grave military offence, since merely to require soldiers, upon conviction of such offences, to leave the army is in effect to offer a premium for their com- mission." On the other hand it has been viewed as an inappropriate, and too severe, punishment for a single act — especially where a first offence — of breach of discipline." The result is that dishonorable discharge, except in combina- tion with confinement, has become a comparatively rare form of sentence in our service; and, where resorted to, it is usually also accompanied with for- feiture of pay. Porm of the punishment." The ordinary and proper form of this punish- ment in a sentence is — " to be dishonorably discharged ;" the words " the service," or " from the service " or " military service," or " the service of the United States," being often added. The form—" to be discharged the service," without using the word " dishonorably," though unusual, is sufficient in law, and has the exercise of legislative and executive functions, and the approving power of the Senate." In consequence of this disapproval, a new sentence, not legally objectionable, was sub- stituted. « Dishonorably discharged soldiers, who have also been confined under their sentences at Fort Leavenworth or Alcatraz Island, are not unfrequently re-enllsted where their record for conduct In confinement has been good. *> See FouKTH ARTICLE, In Chapter XXV, post. « See G. O. 36, 58, 73, Army of the Potomac, 1862 ; G. C. M. O. 50, Id., 1864 ; Do. 71 Dept of Texas 1873. The discharge not only relieves the army of a member found unworthy, but— the number of enlisted men being fixed by statute— enables the authori- ties to enlist a new man In his place. « Such a sentence is particularly objectionable where the soldier has yet a long time to serve under his enlistment. G. C. M. O. 23, Dept. of the Mo^ 1870. «G. O. 9. Dept. of the South, 1873; Do. 61, Id., 1874; G. C. M. 0. 42, Dept. of Texas 1874; Do. 18, Div. of Pacific & Dept. of Cal., 1881. Otherwise where tte offence is a grave one, exhibiting the soldier as morally unfit to remain in the service-such as larceny G O 48, Dept. of Dakota, 1869. In a case of a post quartermaster sergeant convicted of drunkenness on two occasions, it is. observed by Gen. Merrltt, (G C M O 30 Dept. of the Mo., 1887,)-" A non-commissioned staff officer, convicted of drunkenness, should not be permitted to remain in the service." «ln the Navy, beside mshonoram disctwrge, imposed as In the Army occurs some- times the following form-" To be aisclu^ged Mh ioA^omluct discharge." G. C. M. O. 87, Navy Dept., 1887 ; Do. 70, Id., 1889. 440593 O - 42 - 28 434 MILITAKY LAW AND PRECEDENTS. same effect as if such word were not omitted ; the discharge adjudged 662 by a sentence being a punishment and therefore necessarily dishonorable." A sentence-r-" to be dismissed the service," while a rare and irregular form, inappropriate to a case of a soldier, has, where employed," the same effect as if the word discharged had been used." Where dishonorable dis- charge and imprisonment are imposed together, the sentence will preferably be so expressed as to indicate that the soldier is to be first discharged and then imprisoned." It may be added that the court, when proposing to award this punishment, should adjudge it in specific terms. No other punishment, (except death,) nor any conviction of an offence however grave, can operate per se to discharge a soldier from the army." Discharge with ignominy. A mode of dishonorable discharge, sanctioned by usage for time of war,'" is drumming, (or bugling,) out of the service," with the " Rogue's March," in the presence of the command. This ignominous form is sometimes conjoined with circumstances of special ignominy. Thus soldiers have been sentenced to be drummed out after having their cloth- 663 ing stripped of all military insignia, or after being tarred and feathered, or with their heads shaved or half-shaved, or with straw halters around their necks, or bearing placards inscribed with the names of their offences." Execution of the punishment. This punishment is executed by the deliv- ery to the soldier of a certificate or " discharge in writing," which, as required by the 4th Article of war, must be " signed hy a field officer of the regiment to ichich he belongs, or by the commanding officer when no field officer is present." The delivery may be constructive. If the soldier is at the time in confine- ment awaiting sentence, (or under a previous sentence,) a delivery of the discharge to the post commander, or other proper officer, for him, to be ren- dered to him on his release from confinement, is equivalent to a delivery to " It is of course not within tlie power of a court-martial to award an honorable discharge. Nor can it award what Is now designated as a " discharge without honor." See FODKTH Article, ch. XXV, post. « See instances in G. O., May 17, 1821 ; Do. 298 of 1863 ; G. C. M. O. 227, 616, of 1865 ; Do. 58, 66, of 1866. " G. O. 45, Dept. of the Cumberland, 1867. "" A sentence adjudging a dishonorable discharge " to talce effect at such period in a term, of confinement as shall be designated by the reviewing officer," was disap- proved as exceptional and Irregular, by the Secretary of War, (concurring with the Judge Advocate General,) in G. O. 90 of 1872, (now incorporated in par. 1930, A. E.) And to a similar effect see G. O. 30, Dept. of Cal., 1872. In the na/val practice, the dishonorable discharge is usually adjudged to follow the imprisonment. '^ It has been held in a civil court that a conviction of oigamy could not so operate. Regina v. Creamer, 10 Lower Canada K., 404. "' This punishment — as also shaving of the head — has been referred to in some Orders, (see G. 0. 44, Dept. of the Mo., 1867 ; Do. 51, Id., 1880,) as not authorized beoause not contained in the list of " legal "- punishments set forth In G. O. 4 of 1867, (now par. 1019, A. E.) Instances of these punishments, however, occur as lately as in G. C. M. O. 23, 40, of 1867 ; Do. 6, 36, 55, of 1868 ; G. O. 52, Dept. of the South, 1870 ; Do. 30, Id., 1871. As to the non-application of par. 1019 to time of war, see text ante, p. 400. •» The sentence has sometimes been phrased in general terms — " to be ignomlnlously discharged." As In G. C. M. O. 596, 616, of 1865. " Instances of these forms are to be found in G. O. of Aug. 6, 1813 ; Do. of Feb 1 1814 ; Do. 32 of 1822 ; Do. 34 of 1826 ; Do. 4 of 1828, Do. 29 of 1835 ; Do. 39 of 1838 •' Do. 80 of 1842 ; G. C. M. O. 124, 163, 276, 294, 432, 442, 513, of 1865 ; Do 11 224 227, of 1866; Do. 23, 40, of 1867; Do. 6, 36, 55, of 1868; G. O. 49, Army of the Potomac, 1862 ; Do. 49, Dept. of the South, 1862 ; Do. 11, 20, Northern Dept 1864 ■ Do. 33, Dept. of the East, 1868. '' ' MILITARY LAW AND PRECEDENTS. 435 f«r fn ;^'^^"*^''t ^^"^'■al's Office," « but the blank in the body of the certifi- cate for the msertion of the cause or occasion of discharge, will be filled by lln^f '" **"' '"^' *^^* *^^ ^^-"^ ^^^ ^^'^ ^-- in consequence o?t£ sentence of a general court-martial published in a certain General Order describing It by the command or authority from which it has proceeded, its number and date." Such statement will show that the discharge was awarded as a punuhment and is therefore dishonoraUe in law The clause generally added in discharges, that "no objection to the re- enlistment of the soldier is known to exist," is properly struck out; and the space at the bottom of the certificate headed "Character," (which, however IS no part of the discharge,) is filled out or cut off as directed in the Army Regulations." Where this punishment is* imposed in connection with imprisonment, the terms of the sentence will in general indicate whether the discharge is intended by the court to take effect before the imprisonment is entered upon or 664 after it is completed. To postpone until after a term of imprisonment a dishonorable discharge required by the sentence to be executed first in order, has been held by the Judge Advocate General to be beyond the authority of a reviewing officer." In practice, where the penalty of dishonorable discharge is mentioned in the sentence before that of the confinement, it is understood as intended to be executed first and is executed accordingly. Forfeiture of pay usually accompanies dishonorable discharge in a sentence. Where not expressed, however, the effect of the dishonorable discharge is to forfeit the pay due at the date of the discharge and dependent upon its charac- ter for its payment — as all retained pay.^ Ignominious discharge by drumming out, &c., is generally executed upon the party in the presence of the command, under the immediate direction of the adjutant, provost marshal, or other suitable officer, the proceedings and orders in the case being first publicly read." In a case in the Army of the Potomac,'" the form of the execution was indicated as follows : — " To be drummed along his regiment at dress parade, preceded by the drum band playing the Rogue's March and a file of soldiers with arms reversed, and followed by a file of soldiers at ' charge bayonets.' " " SOLITARY CONTINEMENT. The usage of the service, as recog- 665 nized and expressed in par. 1019 of the Army Regulations, is the authority for this form of imprisonment. In par. 1021 it is specified that the "Par. 146, A. K. »« Par. 143, A. R. "'.This opinion was approved by the Secretary of War in G. O. 71 of 1875, and is now incorporated in Army Regs., par. 1031. So, when a sentence provides for the dishonorable discharge of a soldier at the termination of an imprisonment, (now a rare case in the army,) it has been held by the same authority that it Is not within the province of the reviewing officer to order his Immediate discharge. Digest, 357. See this opinion followed by MaJ. Gen. Hancock in two cases, in G. O. 52, Dept. of Dakota, 1872. «Secs. 1281, 1282, Rev. Sts. ; Par. 1503, A. R. ™ See De Hart, 249. "° G. O. 49 of 1862. " In an old case — in G. O. of Aug. 6, 1813 — two privates, on conviction of mutinous conduct, are sentenced in full as follows : " Each to be kept in close confinement, fast- ing, and in irons, for 24 hours; after which to have, severally, the hair on the left side of the head shaved oft and on the right side painted, and to be tied together by the neck, and sent with a guard, and drums and fife playing the Rogue's March, from the encampment on the Severn, through the streets where the offences were committed, through Church street and on to the suburbs of the town," (Annapolis,) "where they shall be discharged." 436 MILITARY LAW AND PRECEDENTS. same," shall not exceed fourteen, days at a time, or eighty-four days in, any one year." " The term, therefore, of this confinement can In no case legally tran- scend the Umlt here fixed,™ nor can it properly transcend for any period the proportion indicated." Such term has in some Instances indeed been extended, but not lawfully since the adoption of the regulation." In the early sentences the solitary confinement was sometimes required to be " in the black hola" " Later it has in a few cases been directed to be exe- cuted in a " light cell," "^ or In a " dark cell." " In one of these cases "" soUtary confinement in a dark prison was disapproved, as being a punishment likely to impair the health of the prisoner. CONFINEMENT " ON BBEAI) AND WATER DIET." This form of con- finement, which is derived from an early period, being mentioned in Arts. 43, 81 and 129, of the Ck)de of Gustavus Adolphug, is specified in par. 1019 of the Army Regulations as among the legal punishments for soldiers. Though formerly frequently employed in our service, it is now comparatively 666 rare. Where resorted to in the later cases," it has generally been ad- judged in connection with solitary confinement, and the Regulations, (par. 1021,) prescribe for it the same limits as to duration. BALL AND CHAIN. This punishment, still recognized as legal by the Army Regulations, (par. 1019,) has been adjudged in sentences from an early period, generally in cases of soldiers convicted of desertion, or of aggravated offences characterized by violence, and in connection with the punishment of imprison- ment. In some instances it has been imposed continuously for long periods — in one instance indeed for and during an entire term of five years' confinement.'' In another class of cases this penalty has been awarded for a portion or portions only of the term of the sentence, — as for the " first twenty days of each month " of a term of five years' confinement,™ or the " first week of every three months " of a term of one year," or for " each alternate week " of a confine- ment " during the continuance of the rebellion." " "" That Is to say, " no more than six such periods " of fourteen days " In any one year." G. O. 75, Army fit the Potomac, 1862. The total of 84 days is, of course, the quantum by one sentence. Simmons § 683. "" In a case In G. O. 75, Army of the Potomac, 1862, a penalty. In a sentence, of one pear's soUtary confinement was properly disapproved as unauthorized. °* Thus, where a sentence imposed solitary confinement for two days out of every three In a term of two months — i. e. forty days out of si,xty — the legal proportion was held to be exceeded. Digest, 708. » In a case In G. 0. 72 of 1832, (before the date of the regulation,) a cerm of this confinement for six months was legally adjudged. In a case in G. O. 234 of 1863, (since the date of the regulation,) a sentence, (upon a conviction of a soldier of murder,) which embraced solitary confinement at hard labor for eighteen years, was (improperly) approved ; but the unexecuted portion was remitted in the, later Q. C. M. O. 186 of 1866. "• See G. O. of April 3, 1809 ; Do. of Aug. 12, 1836. " G. C. M. O. 50 of 1873. "» G. C. M. O. 24 of 1873. "See the G. C. M. O. last cited. More recently, however, it has been employed at Fort Leavenworth as a punishment for convicts tried under Sec. 1361, Rev. Sts. See G. C. M. O. 3, Dept of the Mc, 1878, imposing dark cell on bread and water '»G. C. M. O. 68 of 18G7; Do. 24, 50, of 1873. In 6. O. 287, Navy Dept., 1882, this punishment, and also " solitary confinement on diminished rations," are condemned, and It is declared that they " will hereafter be disused." In G. C. M. O. 47, Navy Dept, 1886, however, is a sentence imposing " solitary confinement on bread and' water for a period of 30 days, with full rations every fifth day." And see similar case in Do. 20, Id., 1891. 1 This part, however, of the sentence was remitted. G. C M O 465 of 1865 " G. C. M. O. 595 of 1865. ' " G. C. M. O. 651 of 1865. " G. C. M. O. 306 of 1865. MILITARY LAW AND PRECEDENTS. 437 It has been remarked in a General Order" tliat whenever ball-and-ehain Is Imposed, the sentence " should state the weight of the ball, the length of the chain, and how to be attached." In practice, the court has generally ftxed the weight of the ball" at from six to forty, (most frequently perhaps twenty- four,) pounds, and the length of the chain at from three to six feet, and has specified that the latter should be attached sometimes to the right leg or ankle and sometimes to the left. In certain of the cases the weight indi- 667 cated is that of ball and chain combined ; in others the chain Is directed to be of a " convenient " length ; in others It Is specified simply that the party is to be confined "with ball and chain." In an early instance, a part of the sentence is—" to wear a ball and chain attached to his neck for two weeks." " This punishment, however, though very frequently imposed during the late war, is now comparatively rarely adjudged. The opinion was expressed by Judge Advocate General Holt that it was not a penalty to be resorted to except in aggravated cases, and, in his reviews of the proceedings of court- martials which directed it, he commonly advised that it be remitted except where the offender was shown to be a violent person, or where attempts to escape were to be expected and he could not otherwise be secured." VI. PROHIBITED AND DISUSED PUNISHMENTS. As a part of the history of Military Punishment, it is proper here to make reference to certain penalties, formerly adjudged by sentence of court-martial,- but now either expressly prohibited by statute, or disused in practice, at least in time of peace. OBSOLETE PENALTIES. Some of the military punishments of the Ro- mans and early Germans have been mentioned in Chapter II. In the early English Articles and contemporary Code of Gustavus Adolphus are prescribed sundry punishments long obsolete, such as— Decimation, (where regiments were concerned in misbehaviour before the enemy;") Beheading;" "To be drawn," (in connection with the death penalty;") To be drowned or buried, bound to the person killed, (a punishment for homicide ; ") To have the tongue perforated with a red hot iron, (for blasphemy ; ") Loss of the right hand, or of a 668 hand;" Loss of an ear;'" Running the Gate-lope;" To be "beaten '•G. O. 8, Dix's Division, Baltimore, 1862. " A shell filled with lead has sometimes been indicated instead of a ball. " G. O. of Jan. 26, 1814. "DlQBSTj 697. » 4. 1, a "Arts. 60, 67, 73, of Gustavus Adolphus; Art. 8 of James II. And see Art. Id, Sec. VI, of Charles I. " Arts. 2, 7, 10, 20, 21, of Elchard II. "'Arts. 2, 9, 17, of Richard II. "Ordinance of Richard I. « Art. 1, Sec. 1, of Charles I ; Art. 4 of James II. "Ordinance of Richard I ; Arts. 22, 29. 32, 33, of Gustavus Adolphus. » Arts 8. 11. 24, of Richard II. . , ,. ^ > « See Art 122 of Gustavus Adolphus. " Running the gantlet," (the same punishment,) was sometimes practised in our army in the Revolutionary War. See Thacher's M.htary Journal, 183. 438 MILITABY LAW AND PEBCEDENTS. through the quarters ; " " To be ducked in the sea : " To perform the duty of scavenger ; *" To forfeit his horse," or his horse and armor." IN AMEEICAN LAW. In our law, of the class of proMMted punishments are Flogging, and Branding or Marking; of disused punishments are Weight carrying. Wearing of irons, Shaving of the head, Placarding, Standing on or carrying a barrel, and a variety of other forms of corporal punishment. FLOGGING — The law on the subject. Our original code of 1775, in enu- merating—in Art. 51— the punislmients authorized to be imposed by courts- martial, specified — "whipping, not exceeding thirty-nine lashes," and in the " Additional Articles " of that year, certain offences were declared to be punish- able with "not less than fifteen" (or "twenty") "nor more than thirty-nine lashes." In the code of 1776, it was provided, by Art. 3 of Sec. XVIII, that " not more than 100 lashes should be inflicted on any offender at the discretion of a court-martial." To the same effect was Art. 24 of 1786 ; a proposition to extend the limit to 500 lashes having meanwhile— in 1781— been rejected by Congress." Public whipping was also authorized by certain statutes of this period as a punishment for sundry civil offences — as, by the Act of April 30, 1790, c. 9, for larceny, embezzlement, &c., the limit being fixed at " thirty-nine stripes," and by the Act of March 2, 1799, c. 43, for robbing the mail, &c., the limit being forty lashes. It was finally abolished as a punishment for civil offences by the Act of February 28, 1839, c. 36, s. 5. 669 In the military code of 1806, the 87th Article fixed the maximum of this punishment at fifty lasheS; but, a few years after, by an Act of May 16, 1812, this provision was expressly repealed, and whipping or flogging for the time done away with. By the Act, however, of March 2, 1833, this form of discipline was revived for cases of deserters. At length, at the beginning of the late war, by a statute of August 5, 1861, it was enacted — " that flogging, as a punishment in the Army, is hereby abolished." The code of 1874 — in Art. 98 — merely states the existing law, in regard to flogging, in enacting that — "No person in the military service shall be punished by flogging, (or by branding, marking or tattooing on the body.)" An Article of the Naval Code — ^No. 49 — is expressed in almost identical terms. By Sec. 1354, Rev. Sts., it is forbidden to subject to whipping a prisoner at the Fort Leavenworth Military Prison." In the British law, flogging is no longer authorized to be adjudged as a punishment by courts-martial,"* though it may be employed as a corrective, to the extent of twenty-five lashes, at military prisons.™ For some civil offences — "< Art. 80 of Gustavus Adolphus. " Ordinance of Richard I. 8»Art. 40 of James II. And see Arts. 60, 72, 79, of Gustavus Adolphus; Art. 13, Sec. VI, of Charles I. The doing of " police duty," however, though no longer adjudged by sentence of court-martial, is sometimes, though not always legally, imposed as a measure of discipline. »Arts. 4, 11, 24, of Richard II. "Arts. 5, 6, 8,. 13, 14, 15, 23, 26, of Richard II. And see Arts. 1, 17, of Same, as to penalty of forfeiture of goods and heritages ; also Arts. 66, 67, 68, of Gustavus Adolphus, as to confiscation of goods. " 3 Jour. Cong., 634. '" The whole Sec. is— "Jn mo case shall any prisoner he suijected to whipping, brand- ing, or the carrying of weights for the purpose of discipline, or for producing penitence." And see— as to the carrying of a heavy log, as a punishment for militarv orisonersl- Circ. No. 4, (H. A.,) 1887. " Army Act § 44. ^ Army Act 5 133, (2.) MILITARY LAW AND PRECEDENTS. 439 mainly violent assaults-it may legally be inflicted to the extent of not more than fifty lashes at one time. As heretofore administered. The disrepute into which this punishment has fallen is in great part due to the fact that formerly, in the British service, it was carried to a brutal and perilous extreme. "Five hundred lashes" was a not uncommon sentence ; one thousand were imposed in repeated recorded cases • and fifteen hundred and even two thousand were sometimes reached •" The execution of such sentences, while savage in its cruelty to the subject was demoralizing to those who inflicted and who witnessed it. The offender 670 being secured in an unnatural position, the lashes were applied by an enlisted man, (a "right-and-left-handed drummer" being preferred,) with the "cat," (its thongs sometimes steeped in brine or salt and water,) upon the bare back and shoulders, which soon became flayed and raw. The victim was not relieved till the surgeon pronounced that he had endured as much as could safely be inflicted for the time. He was then removed to the hospital, to be brought out again, when his wounds were partially healed, for a second instahnent of the punishment, and this process was repeated till the whole number of lashes had been administered. The sufferer, however, some- times perished under the blows, or in consequence of the injuries received, be- fore the law had been fully vindicated." In consequence no doubt of these extreme proceedings, and the fact that the employment of this punishment, subject as it was to abuse, became the occa- sion of suits in which heavy damages were recovered," the authority to resort to the same was gradually restricted by the Mutiny Act till, in 1832, the maximum was fixed at 200 lashes." In 1868 it was abolished for time of peace, and in 1881 altogether, (except as above indicated.) As a penalty to be resorted to in moderation, it has not been without its advocates among Eng- lish writers.™ In the American service, after the RevOlution,"^ comparatively few sentences of flogging were adjudged" until after the punishment 671 had been revived for deserters in 1833, when the same was frequently resorted to,' especially during the period of the Mexican war. By reason of the legislation of August, 1861, it was scarcely employed in our late war. An instance of a sentence, approved, of fifty lashes is found in a " See McArthur, Table of Trials in Appendix ; Hough, 80, 91, 99, 100, 103, 105, 110, 147-8, 643-4; Id., (P.) 3, note; Col. Quentin's Trial, Table op. p. 218; Grant v. Gould, 2 H. Black., 72 ; Warden v. Bailey, 4 Taunton, 67. " See Napier, 150-1, 159-60, 163-4 ; Stocqueler, (Hist. Brit. Army,) 295-6 ; Gov. Wall's Case, 28 Howell S. T., 57, 157 ; De Hart, 244-247. " Grant v. Gould, Warden v. Bailey, Gov. Wall's Case — ante; Comyn v. Sabine, 1 Cowper, 169. "Clode, 1 M. F., 155. i«o McNaghten, 222-232 ; Harcourt, 28-9, 31 ; Napier, 188 ; Clode, 1 M. F., 155. ' During the Revolutionary War, this punishment was not untrequent. Thacher's Mili- tary .lournal, 182-183. In G. O., Hdqrs., Valley Forge, March 25, 1778, a soldier, con- victed of attempting to desert to the enemy, is sentenced " to receive 100 lashes, 50 per day, two days successively," and " to be well washed with salt and water after he has received his last fifty." The Commander-in-Chief, (Washinston,) approves, and orders the execution of the sentence " to-morrow n. m., at the head of his regiment." = See instances in G. O. of May 9, May 31, Aug. 11, and Dec. 26, of 1809; Do. of Nov. 5 1811. These are in the interval between the enactment of the code of 1806, and the original abolition of the punishment in 1812. In the case of Col. Wm. King, 4th Infy., (G. O. of Feb. 7, 1820,) one of the offences of which the accused was convicted was the approving and executing of sentences imposing flogging, in violation of the Act of 1812. In 1832, Lt. Col. Woolly was sentenced to dismissal, on conviction, (with other offences,) of illegally flogging a soldier. IV Am. S. P., Mil. Af., 850, 854. " In G O. 45 of 1841, Gen. Scott mitigates several sentences of fifty lashes with a " cowsMn •' to thirty, on the ground that the " instrument " named is deemed much severer than a " cat o'nine tails." 440 MILITABY LAW AND PRECEDENTS. General Order of July, 1861:* a similar one adjudged by court-martial in February, 1862, (the last case of the kind discovered by the author,) was disapproved by the reviewing authority on account of the previous abolition of the punishment." BRANDING OB MABEING — As now prohibited. This punishment, as heretofore remarked, is prohibited by Art. 98, which is but a reiteration of the provision of sec. 2 of the Act of June 6, 1872, (the only previous legislation on the subject,) by which It was declared that — "hereafter it shall be illegal to brand, mark, or tatoo on the body of any soldier by sentence of eowrt- martial." This provision is inadvertently repeated in Art. 38. Marking in the British service was abolished in 1871. As heretofore administered. The marking of deserters with the letter "D" dates from the Koman law," and was authorized by the British Mutiny Act at an early date.' Later, that Act also authorized the marking of offenders discharged with ignominy, with the letters " B. C." (Bad Charactei-.') In our service this punishment has been carried considerably far- 672 ther, additional forms of it having been sanctioned by usage. Soldiers have been sentenced to be branded, as well as marked," with D, both for desertion and for drunkenness. The mark has commonly been placed on the hip," but sentences to be branded on the cheek" and on the forehead" have been adjudged. Other markings imposed by our courts have been H D for habitual drunkard," M for mutineer," W for worthlessness," C for cow- ardice," I for insubordination," R for robbery," T for thief." Sometimes also entire words were required to be marked as " Deserter," " " Habitual Drunk- ard," " " Mutineer," " or " Swindler." " The branding was done with a hot iron ; the marking with India ink or gunpowder, usually pricked into the skin or tattooed. This species of punishment, except in so far as necessary or expedient In cases of deserters, was repeatedly during the late war unfavorably commented * G. O. 32, Dept. of WashlngtoD. ■G. 0. 16, Dept. of Kansas. Similar action was taken about the same time, In G. O. 31, Dept. of the Mo., 1862, In a case tried by military commission. And see case in G. C. M. O. 64 of 1865, noted under " Disciplinary Punisliments," poat. ' Vegetlns, De Re Militarl, p. 1, c. 8. ' The marking, as adjudged by the court-martial, was required, by an army regula- tion, " invariably to be performed under the personal superintendence of a medical officer." ' Simmons | 119, note. 'The branding, however, was of rare occurrence compared with the marking. " To be marked with the letter D on his right hip " is recognized as n legal penalty, as adjudged by sentence of a naval court-martial, in 9 Opins. At. Gen., 80. In a case In an Order of April 4, 1833, a soldier is sentenced to be marked with D " on both thighs." "^G. O. 65, Dept. of the Bast, 1864. Here the sentence is mitigated by the review- ing authority to a branding on the hip. " G. O. of Feb. 1, 1814. " G. O. 35 of 1838 ; Do. 31, Army of Occupation, 1846. " G. O. 81. of 1833 ; G. C. M. O. 513 of 1865. "See Order last cited; also G. O. 66, Dept. of Washington, 1866; Do 14 Dept of the East, 1868. -« G. C. M. O. 107, 115, 126, of 1865. " S. O. of Jany. 6, 1862. " G. O. 45, Dept. of So. Ca. 1866. '" G. O. 2, Dept. of the East, 1868 ; Do. 6, First Mil. Dlst., 1868 » G. O. 25, 48, of 1827 ; Do. 29 of 1835. " G. O. 25 of 1827. " See Order last cited. ^ G. O. 59 of 1826 ; Do. 34 of 1827. MILITAKY LAW AND PRECEDENTS. 441 upon by Judge Advocate General Holt as being " against public policy " and "not conducive to the best interests of the service." These views were re- peated by other authorities, until Congress took the matter into considera- tion, and at length, by the enactment already cited, prohibited such punishment altogether. 673 Military prisoners, however, convicted of escape or attempted escape from the late Military Prison (now " U. S. Penitentiary") have been frequently sentenced, (In connection vnth other penalties,) "to have the letter B marked upon their clothing." " DISUSED PUNISHMENTS."' — Carrying weights. Among the more usual of the punishments by sentence, now practically disused, was the carrying of weights, which consisted mostly in marching for a certain time, in front of the guard-house, on the parade, on a ring, &c., carrying a loaded knapsack, (loaded with brick, sand, &c.,) a log, a fence-post, or other weighty article; the weight, (commonly 25 or 30 lbs.,) being generally prescribed in the sentence." "Wearing of irons. This has been in some cases so imposed in the sentence as to amount to a distinct punishment. The following forms may be cited from the General Orders : — " To be well ironed with handcuffs and leg-irons," " (in connection with confinement;) To be confined "in double irons ;""* "To be sent to his regiment in irons ;" '" " To be sent in chains to the Dry Tortugas," " Shaving of the head. This has already been noticed as imposed in some Instances as a mark of ignominy in connection with Dishonorable Dis- 674 charge. The sentence has sometimes directed that the head be " half- shaved ;" '^ also, that it be " close-shaved " and a " pitch canvas cap " worn upon it." Placarding. Standing or marching for a certain time bearing a placard or label inscribed with the name of the offence — as " Deserter," " Coward," "Mutineer," "Marauder," "Pillager," "Thief," "Habitual Drunkard "—was at one time a not uncommon punishment. In some cases the inscriptions were more extended — as "Deserter: Skulked through the war;"^' "A chicken- thief;"" "For selling liquor to recruits;"" "I forged liquor orders;"" "I presented a forged order for liquor and got caught at it ;" " " I struck a non- commissioned officer ;" "* " I robbed the mail — I am sent to the penitentiary for « Recent Instances appear in G. C. M. O. 24, 26, 30, 64, 79, 82, 85, of 1893. "None of the punishments Indicated under this head are mentioned in the list of legal punishments for soldiers contained in par. 1019, Army Regulations. Viewing this paragraph, however, as applying strictly to time of peace only, some of these " disused " penalties may perhaps properly be revived in a time of war. ^In a recent order — G. C. M. 0. 10, Dept. of the Mo., 1885, the Dept. Commander, (Gen. Augur,) in disapproving so much of a sentence as required walMng in a ring and carrying a log, adds : — " Such punishment is a great waste of man power ; something useful ought to be found for prisoners to do instead of such idle exercise." See Circ. No. 4, (H. A.,) 1887. " G. O. 72 of 1832. * G. O. 103 of 1832. " Double Irons " have been much more frequently employed In the Navy, In eases in which the confinement has to be executed on board a vessel. » 6. C. M. O. 173, 195, of 1864. » G. O. 33, Northern Dept., 1864. «G. 0., Seventh Mil. Dlst., Jan. 22, 1815; G. C. M. O. 23 of 1867; Do. 6, 86, of 1868. "" G. O. of Feb. 1, 1814. Compare Ordinance of Richard I, in Appendix. " G. C. M. O. 451 of 1865. " G. O. 23, Dept. of the Pacific, 1866. " G. C. M. O. 7, Army of the Potomac, 1865. " G. O. 15, Dept of Va. & No. Ca., 1865. " G. O. cited In note 3. "G. O. cited In note 3. 442 MILITAEY LAW AND PRECEDENTS. 5 years;"" "The man who took the bribe from deserters and assisted In their escape."" Standing on a barrel, &c. Soldiers have been not unfrequently sentenced, for minor ofEences, to stand on the head of a barrel for certain periods, some- times also bearing a placard. Another punishment by the use of a barrel wa»— " to carry a barrel with his head through a hole in one end, and resting on his shoulders." " Other punishments. Less usual were such punishments as the fol- 675 lowing:"— Riding the wooden horse," (sometimes with hands tied be- hind the person, or a musket tied to each foot;) Wearing a wooden jacket ; Wearing an iron collar or yoke ; " Wearing partly-colored clothes, or Marching with coat turned wrong side out; Bucking; Picking; Tarring and feathering;" Pillory;" Stocks; Gagging; Fasting; Tying up by the thumbs; Stopping " grog," or " ration of whiskey." ■" VII. REMARKS WITH SENTENCE. As has been indicated in the last Chapter, a court-martial may, in connec- tion with its Sentence, as with its Finding," present such animadversions, recommendations, explanations, or other remarks, as it may deem properly to be called for. Thus it may comment unfavorably upon the accuser or prosecutor;" may recommend that an officer or soldier, (other than the ac- cused, ) compromised by the evidence, be brought to trial ; ™ may reflect upon certain action, discipline, or want of discipline, developed by the testimony, &c. It is not uncommon for a court, in adjudging an unusually mild sentence, to add that it is "thus lenient" on account of certain circumstances men- tioned — as that the accused has undergone a long confinement in arrest before trial, or has borne a good character or rendered valuable services prior to his offence, or has voluntarily surrendered himself from desertion, or has been captured and imprisoned by the enemy, or is young or inexperienced as a soldier, or physically or mentally deficient, &c." So the court may ex- 676 plain an exceptional sentence by a statement of its conclusions from the »G. C. M. O. 58 of 1866. " G. O. 76, Dept. of the East, 1864. " G. O. 8, Dept. of the West, 1861 ; 6. C. M. O. 58 of 1866. " Of these punishments, " bucking " and " tying up by the thumbs," have been specially condemned as " not warranted by law or usage." See G. O. 80 of 1842 ; Do. 3 of 1853 ; Do. 44, Dept. of the Platte, 1871 ; Do. 1, Dept. of the South, 1873. "This punishment is prescribed in Arts. 43 and 49 of Gustavus Adolphus, and Arts. 30 and 34 of James II. " A comparatively recent instance of this punishment, to wit — " to wear an iron yoke weighing nine pounds, with three prongs six inches long," is found in G. O. 38, Army of the Potomac, 1861. "Imposed in connection with Dishonorable Discharge. See instances in G. O. 34 of 1827 ; Do. 29 of 1835. In the Ordinance of Richard I. (see Appendix,) it is prescribed that one conyieted of theft " shall have his head cropped • * • and boiling pitch shall be poured thereon,, and then the feathers of :i cushion shall be shaken out upon him." "Abolished as a punishment for civil crimes by Act of Feb. 28, 1839, c. 36, s. 5. " G. O. of April 19, 1814 ; Do. of June 7, 1817. "See Chapter .XIX. " G. O. of 1853. See Chapter XIX— "Additions to the Finding." ™G. O. 45, Dept. of 'Washington, 1866. =1 See G. O. 20, Dept, of the South, 1866 ; Do. 115, Dept of the- Mo., 1867 ; Do. 47, Dept. of the Lakes, 1868; Do. 8, Dept. of Arizona, 1874; G C M O 10 of 1883 '• Hough, 488. MILITARY LAW AND PEEOEDENTS. 443 testimony, or an expression of Its estimate of the amount of criminality involved In the case, or otherwise." But In general it will be more military and dignified on the part of the court to abstain from any remarks which may have the effect of an excuse rendered for its action. Where some material proceeding, or the general course of proceeding, has been unusual, but justified by the peculiar character of the case, it will not be objectionable for the court to state the reason for the same In connection with the sentence. As was done by the court on the trial of Lt. Col. Fremont, where the great mass of evidence admitted was accounted for on the ground that, in view of the variety and complication of the circumstances surrounding the alleged of- fences, it was deemed proper to allow the fullest scope to the defence." BECOMMENDATION. Where a severe sentence, made imperative by a mandatory provision of the code, has been adjudged by the court, or — though more rarely — where a severe discretionary sentence has been Imposed, the members, or a portion of them, sometimes join in a recommendation, i. e. a written statement commending the accused, for reasons stated, to the clemency of the reviewing authority." This statement is not a proceeding of the court, and no part of the record of the trial. It is therefore not properly incorporated with or added to the sentence," but, in practice, is usually appended to the record as a separate paper. It may Indeed form the subject of a distinct official communication to the reviewing commander or pardoning power, and this is the form which it usually takes in the French and German procedure." 677 Being the act, not of the court, but of the members who take part in it," the recommendation may be subscribed by all the members, or by a majority or minority, or by one member only. There may be two or more recommendations, signed by different members, and on different expressed grounds."* The judge advocate may properly join in a recommendation. A recommendation should not omit to state the reasons upon which it is based." Among the grounds generally advanced have been — ^the previous military services of the offender, his general good character, his youth or inexperience, the fact that he has been held for an unusual period in arrest or confinement awaiting trial, or that he is in infirm health, the absence in his case of a deliberate criminal intent, &c. A recommendation should proceed "See the explanations of the sentences of admonition and reprimand In G. O. 250 of 1863 ; G. C. M. O. 212 of 1866. »» Printed Trial, p. 338. „ . , .. ,. "Unfavorable recommendations— as that the accused be dismissed or discharged, though recognized In the British, (see Hough, (P.,) 762 ; Hughes, 99 ; Bombay E., 41,) can scarcely be said to be sanctioned in our practice. , ^. , K See Army Kegs par 1040. So, in the civil practice, a recommendation to mercy by a jury is no part of the verdict, but only a communication addressed to the Judge. People V. Lee, 17 Cal., 76. ^ ,. ^ ^ *,. ., 4.- Mln Marshal Bazaine's Case, in 1873, after the court had agreed upon the deatn sentence seven of the ten members addressed a communication to the President of the Eepublic recommending a commutation of the punishment, which was commuted accord- Inelv to twenty years' imprisonment in a, fortress. , .^ „ , t. « " Only those members who concur in the recommendation will sign it." Army Eegs., Dar. 1040. And see Digbst, 638. "in a late case in G. C. M. O. 92 of 1875, there were two separate recommenda- tions one being signed by a single --^-^^ ^..^^ ., j, ,,„„,,, ,^ ,^, ,,,,,,i„, »In a case m G. O ^0' ^«P^.."^^ ^^^ ^'^bers of the court are silent with regard the sentence. No consideration can, tnereiore, u» v Dlv. of the Atlantic, 1874 ; Hough, (P.,) 793. 444 MILITAHY LAW AND PEECEDBNTS. upon foots— mainly or entirely upon facts in evidence on the trial. It should not be actuated by the personal feelings of the members, whether feelings of partiaUty toward the accused or of disfavor toward the prosecutor." It should of course not disclose opinions on the question of guilt or innocence." Further, it should not assume to dictate, or to suggest, to the reviewing authority what mode or measure of clemency will properly be resorted to in the case." It seems to be the sentiment of the authorities that recommendations 678 are not much to be encouraged."" They have indeed been characterized in some instances rather by a weakly lenient or temporizing spirit than a sound appreciation of the circumstances or merits of the case; in others they have been so materially inconsistent vrith the findings and sentence as to detract materially from their weight. In a proper case, however, a recom- mendation, especially if signed by all the members, will be duly deferred to, as being in efCect a qualification of the sentence. VIII. DISCIPLINARY PUNISHMENTS. NOT AXTTHORIZBD BY LAW. The different specific penalties which have been considered in this Chapter practically exhaust the power to punish con- ferred by our military law. We have in that law no such feature as a system of disciplinary punishments" — or punishments Imposable at the will of mili- tary commanders without the intervention of courts-martial- -such as is gen- erally found in the European codes. Except so far as may be authorized for the discipline of the Cadets of the Military Academy,* and in the cases men- tioned in two or three unimportant and obsolete Articles of war,™ our law recognizes no military punishments for the Army, whether administered 679 physically, or by deprivation of pay," or otherwise, other than such as may be duly imposed by sentence upon trial and conviction. NOT SANCTIONEB BY tTSAG-S. By the authorities nothing is more clearly and fully declared than that punishments cannot legally be Inflicted at the will of commanders — that they can be administered only in execution of the « See James, 619. "See Ben^t, 145. «" James, 527, 528 ; Simmons § 698 ; Kennedy, 211 ; De Hart, 108 ; Copp4e, 85. " The Secretary of War is " surprised to find that any officer of the court could recommend remission or commutation of the sentence in a case where the conduct of the officer tried was as reprehensible as that of" the accused. G. C. M. O. 92 of 1867. " The practice of the members of a court-martial flnst finding an officer guilty, and then recommending him for clemency, is to be deprecated. It is an endeavor, too frequently made, to transfer the responsibility of their findings to the Department of War when it should rest upon the court itself." G. O. 36 of 1843. And see Do. 39 of 1845 ; Do. 26 of 1851 ; Do. 342 of 1863 ; G. C, M. O. 27 of 1871. «It is quite otherwise in the Navy. See Art. 24 of the code of Articles for the Government of the Navy, Rev. Sts., Sec. 1624. In the British Navy, where a similar authority exists, " courts-martial," according to Clode, (M. L., 44,) " are seldom re- sorted to." The power of summary punishment accorded to naval, but denied to army, commanders, is analogous to the authority to chastise or punish disorderly and dis- obedient seamen in the merchant service. See Turner's Case, 1 Ware 77 • Bangs v Little, Id., 520. As to the summary power of disciplinary punishment now vested in commanding officers of the army in the British Law, see Manual, 35, 36 ; Army Act, ss. 46, 138, Queen's Regs., Sec. VI. •■ See Regulations of the Military Academy § 107, 108. "Arts. 25, 52 and 53. The nearest approach, however, to a disciplinary punish- ment in our law is the reducing of non-commissioned officers by order, under par 172 Army Regulations. But this may be resorted to for purposes quite other than punish- ment. " See Circ. No. 14, (H. A.,) 1890. MILITAEY LAW AND PRECEDENTS. 445 approved sentences of military courts." Such punisliments, whether ordered by way of discipline irrespective of arrest and trial, or while the party Is in arrest awaiting trial, or between trial and sentence, or after sentence and while awaiting transportation to place of confinement, or while he Is under sen- tence and in addition to the sentence, — have been repeatedly denounced in General Orders and the Opinions of the Judge Advocate General," and 680 forbidden in practice by Department commanders." Officers who have resorted, or authorized inferiors to resort, to them have not imfrequently been brought to trial and sentenced, sometimes to be dismissed:" if ac- quitted or lightly sentenced, the proceedings have in general been disapproved or severely commented upon." On the other hand, enlisted men tried and sen- tenced for insubordinate conduct, where such conduct has been induced or aggravated by illegal corporal punishments inflicted upon them by superiors, have commonly had their sentences remitted or mitigated, or altogether dis- approved." " De Hart, 218 ; O'Brien, 487-8 ; Digest, 700 ; and Orders cited in succeeding notes. »» " No oflScer has the authority in any case to inflict punishments for past offences of any kind. This authority is possessed by courts only." J. C. Spencer, Sec. of War, in G. O. 4 of 1843. And see Do. 81 of 1822 ; Do. 23 of 1824 ; Do. 28 of 1829 ; Do. 25 of 1840 ; Do. 63, 80, of 1842 ; Do. 2 of 1843 ; Do. 39 of 1845 ; Do. 31, Div. of the Atlantic, 1873, (where to impose solitary confinement before trial is declared " clearly illegal ;") Do. 1. Dept. of the South, 1873 ; Do. 23, Id., (where the Inflicttag of a punishment — without trial — on a soldier when drunh is especially disapproved by Maj. Gen. McDowell ;) G, C. M. O. 90, Dept. of the Bast, 1871, (where a soldier, for disorderly conduct in ranks under liquor, was ordered to carry a fence-post, and on refusal was gagged and subsequently confined with hall and chain and in Irons till brought to trial — action se-rorely condemned by the same commander;) Do. 71, Dept. of Dakota, 1882; Digbst, 364, 365. . In G. C. M. O. 195, Dept. of Dakota, 1883, the requiring of a soldier, confined In the guard-house before trial, to perform unusual police work, was held unauthoried. In 6. O. 53, Dept. of Va. & No. Ca., 1864, the striking, &c., of colored soldiers without sufficient cause is especially reprobated ; these troops being docile and obedient if properly treated and set a good example. And compare case of Lt. Col. Broughton, an officer of a " black corps " in the West Indies, James, 261. See also G. O. 148, Navy Dept., 1869; Do. 168, Id., 1872; Do. 217, Id., 1876— where the trans- cending of the authority of summary punishment by naval commanders is severely commented upon by the Secretary of the Navy. It may be noted here that, by the authority of express statute — Sec. 1353, Rev. Sts. — convicts at the Leavenworth Military Prison, (now "V. S. Penitentiary,") offending against discipline, were sometimes subjected to solitary confinement; the system here being analogous to that of a penitentiary. '» G. O. 23, Dept. of the Lakes, 1870 ; Do. 44, Dept. of the Platte, 1871 ; Do. 7, Dept. of the Gulf, 1872, also Orders cited in last note. " See G O of Feb 7, 1820, (case of Col. Wm. King ;) Do. of June 30, 1821, (case of Col Talbot Chambers, sentenced to suspension for inflicting illegal punishment in "cropping" the ears of iwo soldiers;) Do. 23 of 182* = Da 8, 20 of 1826; Do. 28 of 1S29- Do 25 47, of 1830; Do. 64 of 1832; Do. 34 of 1842; (Capt. Howe's Case;) Do 2 4 17 of 1843; Do. 39 of 1845; G. C. M. O. 645 of 1865; Do. 112, Dept. of the ^st 1870 -DO 53 Dept. of Va. & No. Ca., 1864; Do. 9, Dlv. of the Atlantic, 1869; ^14 Dept of the South, 1869; G. C. M. 0. 50, Dept. of the Mo 1871; Do. 30, GC MO 64 Of 1865, of a Brig. Gen., convicted of causing two soldiers to be flogged with'stlashet each a; a disciplinary punishment, and sentenced to suspension. The ""^ro'"4 z^Tis:rv:T:i tf::rz:^^ of 1845; do. 22. dcp. „f the Piatte. 1867%''-c'M*a uTDept. of the East, 1870 And see a O. 9; Dlv. of the Atlantic. 1869 ; DO. 5, Id., 1870 ;G^C. M- a 29, D^pt. o t^e M^«0;^^ ^^^,_ ,,,3 ^ ^. ,. ^. „. Of the South. 1873. And see cases specified in Am. S. P., MU. Af.. vol. II, p. d»-H. 446 MILITAKY LAW AND PEECEDENTS. The practical result is that the only discipline in the nature of punishment that, under existing law, can in general safely or legally be administered to soldiers in the absence of trial and sentence is a deprivation of privileges in the discretion of the commander to grant or withhold, (such as leaves of ab- sence or passes,) or an exclusion from promotion to the grade of non- commissioned officer, together with such discrimination against them as 681 to selection for the more agreeable duties as may be just and proper." To vest in commanders a specific power of disciplinary punishment, ex- press legislation would be requisite. SITMMAIIY DISCIPLINE IIT CASES OF EMERGENCY. Cases will indeed sometimes arise in the military service when a superior is called upon to em- ploy toward an inferior a degree or quality of force not In general permissible. As where he is required to defend himself against an assailant, to suppress a mutiny, to quell a dangerous offender or quiet a turbulent one, to overcome resistance made to an arrest, to secure a soldier attempting to desert, or 'to capture a prisoner escaping from custody: — ^in such instances the superior may in general resort ta the necessary personal force, use of arms, imprisonment, ironing, or other available form of constraint," and in extreme cases may even be warranted in taking life.™ Especially In time of war, and when the com- mand is before the enemy, will such forcible and vigorous measures be justi- fied." This, however, is repression and restraint, not punishment; no greater force or more severe restriction is therefore to be employed than may be reasonable and needful under the circumstances ; and where the commander is provided with the usual or with adequate facilities for apprehending and confining an offender with a view to trial, he is not, even in time of war, to inflict personal chastisement upon him or subject him to any arbitrary punitory treatment, much less, by the use of arms, to put him in danger of his 682 life.™ In violating these rules the superior subjects himself to charges and trial by court-martial," as well as to civil suit or prosecution." " See G. O. 7. Dept. of the Gulf, 1872. "See G. O. 81 of 1822; Do. 53 of 1842; Do. 2, 4, of 1843;. Do. 21 of 1851; Do. 3 of 1853 ; G. C. M. O. 47 of 1877 ; Do. 53, Dejjt. of Va. & No. Ca., 1864 ; Do. 40, Dept. of the East, 1868 ; G. C. M. O. 112, Id., 1870 ; Do. 90, Id., 1871 ; G. O. 23, Dept. of the Lakes, 1870 ; Do. 106, Dept. of Dakota, 1871 ; Do. 1, 93, Dept. of the South, 1873 ; Do. 31, Div. of the Atlantic, 1873; G. CM. O. 37, Dept. of Texas, 1880; Do. 23, Dept. of ArizoDa, 1891 ; DiQBST, 701. '• G. C. M. O. 47 of 1877 ; G. O. 29, Dept. of N. B. Va., 1861, Do. 5, Dept. of N. Mexico, 1863 ; Do. 54, Dept. of So. Ca., 1865 ; Do. 25, Dept. of La., 1866 ; U. S. v. Carr, 1 Woods, 484 ; DiGDST, 486-7. " DiGKsi, 487 ; Clode, M. L., 117, 118. ™ G. O. 54, Dept. of So. Ca., 1865 ; Do. 40, Dept. of the Bast, 1868 ; G. C. M. O. 112, Id., 1870, (Remarks of Maj. Gen. McDowell;) G. O. 5, Div. of the Atlantic, ' 1870 Q. C. M. 0. 45, Dept. of Dakota, 1880. See also Do. 93 of 1867 ; Do. 36 of 1880 Digest, 701. And compare cases at maritime law — as Turner's Case, Ware, 77 ; U. S. V. Freeman, 4 Mason, 505 ; Perkins v. Hill, 1 Sprague, 119. ""An excess wantonly committed would Itself be punishabje In the superior." MaJ. Gen. Scott, in G. O. 53 of 1842. And see cases In Orders cited in the previous notes under this head. "See Part III, "Amenability to Criminal Prosecution in State Courts," where, among other adjudications, is noticed the recent (1892) remarkable case of Common- wealth V. Hawkins and Streator, In which' certain commanding officers of the Pennsyl- vania militia, indicted for assault and battery in summary disciplining a private (W. L. lams,) by tying him up by the thumbs, shaving his head, and drumming him out of camp, for a trifling offence — the use of foolish words savoring of insubordination, but unaccompanied by acts — are held Justified and acquitted ! CHAPTER XXI. ACTION ON THE PROCEEDINGS— THE REVIEWING AUTHORITY. 683 THE NEXT BEQtTISITE. While the function of a court-martial is, regularly, completed in its arriving at a sentence or an acquittal, and reporting its perfected proceedings, its judgment, so far as concerns the execvr tion of the same, is incomplete and inconclusive, being in the nature of a recom- mendation only. The record of the court is but the report and opinion of a body of officers, addressed to the superior vi^ho ordered them to make it, and such opinion remains virithout effect or result till reviewed and concurred in, or otherwise acted upon, by him.' This superior, sometimes referred to as the Approving or Confirming Authority, but more commonly known in military parlance as the Reviewing Authority or Officer,'' is, as will presently be more fully indicated, the official — ^military commander or Commander-in-chief — by whom the court was originally constituted and convened, or — ^where there has been a change in the command since the convening — his successor therein. In some cases indeed where, beside the approval of the original commander, further confirmatory action by a higher commander or the President is required by law, there are in fact, as will also be pointed out, two separate reviewing officers.' It is the function of such officer (or officers) which we now proceed to consider. 684 THE LAW ON THE SUBJECT.* The provisions of our statute law which relate to the authority and action of the "Reviewing Officer," in the approving and confirming, &c., of sentences and judgments, and in the execut- ing, pardoning and mitigating of punishments, are contained in Articles 104 to 112 of the code, and — as to the execution of the sentences of courts for the trial 1 See Tytler, 163, 169, 227 ; Kennedy, 212, 217 ; Simmons § 709 ; Macomb, 33 ; 5 Opins. At. Gen., 511. A sentence is " interlocutory and inchoate " till duly approved. Mills v. Martin, 17 Johns., 30; Runkle v. U. S., 122 TJ. S., 555. 2 The term " Reviewing Authority " occurs in Sec. 1228, Rev. Sts. ' In the case of In re Esmond, 5 Maekey, 74, the court, having in view the commanders, as well as the .Judge Advocate General, hy whom the proceedings are passed upon, well observes that Congress has provided, in addition to the court-martial, a " separate and complete line of reviewing authorities terminating in the Executive." * By the earlier statutes — Art. 67 of 1775 ; Arts. 8 of Sec. XIV and 2 of Sec. XVIII, of 1776 ; Resolutions of April 14, May 27 and June 18, of 1777 ; Art. 2 of 1786, and Arts. 65 and 89 of 1806 — the general in chief, and subsequently the general commanding in the State, and the commanders of separate departments and armies, were authorized to act, (with some limitations hereafter to be noticed,) as reviewing ofScers. Prior, however, to the adoption of the Constitution, Congress itself, in which then resided the executive power of the government, not nnfrequently exercised the power of finally acting upon the proceedings of general courts-martial and of remitting and mitigating their sentences. See 2 Jour. Cong., 69, 195 ; 3 Id., 5, 37, 144, 158, 210, 223, 386, 433, 714; 4 Id., 255, 259, 268, 367. 447 448 MrLITABT LAW AND PBECEDENTS. of Cadets— Sec. 1326, Kev. Sts. These provisions, with a few Army Regulations and some usages of the service relating chiefly to the return of proceedings to the court for correction, the formulating and publication of the final action taken thereon, and the ultimate disposition of records of trials, constitute the law on the subject of this Chapter. Art. 110, and the Act of October 1, 1890, (relating to summary courts,) vhich refer to the action of sentences of Inferior Courts, will be more specifically noticed in Chapter XXII. The matter of the execution of particular punishmmts has already been remarked upon In the preceding Chapter. Except as thus treated, the present subject will here be examined under the heads of — I. Approval or Disapproval of the proceedings. II. Return of the proceedings for correction. III. Action of the President as confirming authority. IV. Action of commanding general as confirming authority. V. Execution of sentences. VI. Suspension of execution of sentences. VII. Pardon and mitigation of punishments. VIII. -Formulating of action and promulgation. IX. Disposition of records. 685 I. APPROVAL OR DISAPPROVAL OF THE PROCEEDINGS. APPROVAL — Art. 104. Upon this subject this Article provides as fol- lows : " No sentence of a court-martial shall he carried into execution until the same shaU tuwe been approved by the officer orderi/iiff the court, or by the officer commanding for the time being." The approval by the proper superior is thus seen to be as necessary to the operation of the sentence as is the judgment of the court which awarded it. It Is indeed the final, conclusive, official act in the absence of which the judgment would remain as a mere award without sanction or efficient quality." SIGNIFICANCE OF TERM "APPROVED." This word, as technically construed in practice, designates the fact of the official acceptance of and concurrence in the proceedings or sentence by the reviewing authority. Art. 109 uses the word " confirmed " as describing the ratification of the sentence, and it would Indeed be in general more strictly precise to speali of the pro- ceedings (except the sentence) as approved, and of the sentence as confirmed.' In practice, however, no essential difference In meaning Is recognized between the two terms, " approved " and " confirmed," ' but both are often indifferently employed in reference to the sentence. Inasmuch, however, as " confirmed " Is the word used in Arts. 105-108 to describe the action of the President, (or other superior authority,) in cases where his action is required upon the sentence. In addition to that of the original reviewing authority, this term has come to be more commonly reserved for the designation of such action, while "approved" is more usually employed to indicate the action of the 686 original commander — the commander of the department for example — by whom the court was ordered, (or his successor, if there has been a " " The effect and conclusiveness of any action of the court stands as much upon the reviewing officer's approval and order as upon the original proceedings and sen- tence of the court The two constitute an entire proceeding and are to be considered together." In re Esmond, 5 Mackey, 70. °In some cases the expression "approved and confirmed" has been adopted in passing upon proceedings and sentence together, but this has been more common In the British service, (see James' Precedents,) than with us. ' O'Brien, 277 ; De Hart, 111-112. MILITARY LAW AND PRBCBDBNTS. 449 change in the command.) The two terms will accordingly thus be distinguished in this Chapter, and generally throughout this treatise. In exceptional cases, reviewing officers, in acting upon a sentence have de- clared of the same that it was " confirmed but not approved," the intent being to impart the mere official assent necessary in law to the execution of the sentence while withholding personal approbation of the same or of the pro- ceedings or findings upon which it is based. Such a distinction, however, in giving to the two words the one a technical and the other a colloquial meaning Is a departure from estabUshed usage and without legal significance.' APPROVAIi AS AN ESSENTIAL. Approval is necessary, not only to vital- ize the sentence as such, but to give it substance as material upon which further official action can be predicated. By Art. 104 the official approval of the convening commander, (or his successor,) Is made an essential requisite to the taking effect of the sentence, both in cases where such approval is final and conclusive per se,' and in those where further action is necessary to supplement it. In other words, approval is equally essential where the sentence, in order to be executed, requires the subsequent confirmation of superior authority, (as In the cases specifled in Arts. 105-108, and Sec. 1326, Rev. Sts.,) as where the same is fully executed by the act of the original commander alone." It is, similarly, a prerequisite to the suspending of the sentence for the action of the President under Art. Ill, as also to the exercise of the pardoning power by him, or by a commander under Art. 112." Unless the sentence has been previously duly approved, and has thus a legal existence, it cannot, nor can any punishment included in it, be either remitted or mitigated. It may be observed that while an approval is necessary to give effect 687 to a sentence, it cannot validate what is In itself invalid and inoperative. Thus an illegal sentence — as a sentence adjudged by a court without legal existence — cannot be cured or rendered operative by the approval of a commander or of the President." BY WHOM TO BE APPROVED. The Article requires the approval of the sentence by "the officer ordering the court," or "the officer commanding for the time being." " The officer ordering the court." This is of course the officer, (President or military commander,) who, by virtue of the authority vested in him by the law as already considered in Chapter VI, on the Constitution of General Courts-Martial, has originally convened the court by which the sentence has been adjudged. In the great majority of cases he Is the official by whom the sentence Is approved or otherwise acted upon. Extent of his discretion. Whether and how far the proceedings and sen- tence, or any part of the same, shall be approved, ,&c., is a subject wholly wifliln the discretion of such officer. As to this he is invested by the Article with the sole authority, and cannot therefore be directed either by the Presi- dent or other superior. While deferring to any known views of a superior as to any question of law or discipline involved In the particular case, it is yet his duty as it is his right, In the exercise of the. power of approval or disap- proval, to act according to his own best judgment, and in the light of the facts and the law as understood and held by himself. s Simmons, (5 730,) observes of the term " confirmed but not approved," that Its 'legal effect differs In no degree from an approval." • See poet — '• V. Execution of sentences." »» G. O. 27, Army of the Potomac, 1868. " G. C. M. O. 101, Division of the Atlantic, 18V4 ; Do. 66, Dept. of Cal., 188B. " See Lieut. Cobb's Case. Am. S. P., Mil. At, vol. 4, p. 854. 440593 0-42-29 450 BDLITAKY LAW AKD PBECEDBHTS. Delegation of his authority. This officer must act personally. He cannot delegate his function as reviewing authority to another officer— as a staff officer or an inferior commandei^to act in his stead. If he assumes to do so, the acts of his delegate will be of no legal virtue. Effect of his absence from command. While the personal presence of the commander within the territorial Umits of his command may not be abso- lutely essential to give validity to his action as a reviewing officer, or the mere fact of his absence therefrom sufficient to invalidate such action," 688 yet where he is absent on a duty or under orders practically detaching him from his command, or the effect of which Is, in a military saise, properly incompatible with its exercise, his power to act upon the sentences of courts-martial convened by him may be materially affected. Thus while a Department Commander, who has temporarily passed the boundary of his department when pursuing hostile Indians, or while engaged in some other miUtary service as such commander, is not so absent from his command as to be disqualified from taking the action required by Art 104 or 109, it may be quite otherwise where he is absent under orders placing him upon a distinct and separate duty of some continuance, or by virtue of a leave of absence for any considerable term." Under any such circumstances, indeed, it will in general be safest to devolve the command temporarily upon some other officer, and for such officer to act as revievylng authority for the time being. Effect of the absence of the accused. It cannot however aflCect the author- ity of the convening officer to approve, &c., the proceedings, that since the trial the accused may have been transferred with his company to another depart- ment, &C., or is otherwise absent from the command, as by reason of having been talien prisoner by the enemy or having deserted. The authority of the commander having once attached to the case, he still remains the reviewing authority whose formal approval is necessary to the execution of the sentence, though the matter of its actual enforcement may have to be directed by a superior or other commander. " The officer commanding for the time being." This is an officer who, by reason of the absence, removal, disability, &c., of the officer who originally ordered the court, or the merger or discontinuance meanwhile of his command, has succeeded to the exercise of such command and is exercising the same at the time when the proceedings and sentence are completed and require to be acted upon. Such officer will usually have been temporarily or indefinitely detailed for the command by the President, (or other superior;) but, where no such formal detail has been made, and none is required by statute or regu- lation to be made, he may be an officer upon whom the command has 689 devolved by reason of his seniority in rank according to the usage of the service. Upon duly assuming the command "for the time being," such officer succeeds to all the rights of review and action wliich would have been possessed by the convening authority had his exercise of the command not been interrupted. It may be noted that the rank of such successor is not fixed by the Articles, and It cannot therefore be held to be essential that he should be of equal rank with the officer who convened the court, or of a rank sufficient to authorize him himself to convene such a court. Thus a department or an army commander, "16 Opins. At. Gen., 679. u G. C. M. O. 26 of 1878 ; Do. 9, Dept of the Columbia, 1880. MILITABY LAW AND PEECEDBNTS. 451 to be empowered to assemble a general court under Art. 72, must be a general or a colonel, but " the officer commanding for the time being," in the absence of any requirement as to his rank, may legally and efEectually act upon and approve the proceedings though, — as might be the case in time of war, — his rank be less than colonel. Where, pending the proceedings in a case on trial, the command of the con- vening officer has been discontinued and included in a larger or other command, as where one department has been merged in another or in a Division, the com- mander of the latter will be the authority answering to the description of " the officer commanding for the time being," and will properly act upon the pro- ceedings and sentence as indicated in Arts. 104 and 109. Where, under similar circumstances, the command of the convening officer has been discontinued altogether without being renewed in any form or Included in another command, the General, if any, duly assigned by the President to the command of the army, will be " the officer commanding for the time being," or, if there be no authorized military commander of the entire army, the President himself as constitutional Commander-in-chief.'" "The officer commanding for the time being" Is Invested with the same authority and discretion, and held to the same obligation, in the exercise of the power of approval, &c., as would be "the officer ordering the court" in whose stead he acts. DISAPPROVAL — ^Its nature and effect. " Disapproval," in military 690 law, is not a mere expression of disapprobation," but a technical term employed to indicate the action of the reviewing officer where he does not approve the sentence or a punishment. Such officer, wherever authorized to approve, may, instead, disapprove ; disapproval being simply the absence or withholding, stated in terms," of the approval or confirmation which is necessary to the taking effect of the judgment of the court. As approval or confirmation vitalizes and makes operative the sentence or a punishment, disapproval nullifies and vacates It." Like approval, it may be full or partial, i. e. where a sentence imposes several punishments, one 6t more may be disapproved, and the other or others approved ; the disapproval of a part not affecting the validity or execution of the remainder." Where the en- tire sentence is disapproved, the proceedings in the case are wholly termi- nated and nugatory; there remains therein no material upon which the original reviewing officer, or the President or other superior authority whose confirmation would be necessary to the enforcement of the sentence, can exercise the power of execution, or that of pardon or mitigation ; and to transmit proceedings, for the confirmation of the sentence or other action by higher authority, when the sentence or judgment has been formally disapproved in the first instance, must be as futile as it is unauthorized. Upon such a disapproval also the accused is restored em vi to his normal legal status as existing before his arrest, and is entitled to be at once released from any form of restraint to which he may have been subjected, and to be returned " Martin v. Mott, 12 Wheaton, 34. 1° As to the action, commonly classed as " disapproval," but which Is no more than unfavorable Comment upon proceedings of secondary Importance, see post — '' Disapproval not affecting the sentence." " That Is must 'be express, see Digest, 671 ; 16 Opins. of At. Gen., 312. »8G. 0. 209, 341, of 1863; Do. 27, Army of the Potomac, 1883; O'Brien, 277; 1 Opins. At. Gen., 242 ; Digest^ 671. " See 6. O. 72, Dept. of the East, 1865. 452 MrLITABY liAW AND PKBCEDENTS. to the duties and rights of his rank or office; his legal rights and privileges remaining no more affected than If the trial had resulted in an acquittal." Where the disapproval of the sentence is but partial, its effect is to 691 nullify the punishment or punishments disapproved, leaving the other or others which are approved to be executed, remitted, or mitigated, precisely as if the sentence had included this or these only. Grounds of disapproval. The grounds upon which the authority to disap- prove a sentence or punishment may properly be exercised are mainly of two classes ; some going to the legal validity or to the regularity of the proceedings, and others to the justice or expediency of allowing the judgment to stand or the sentence or punishment to be enforced. Thus where the court was not legally constituted or composed, or was without jurisdiction of the offence or offender, or proceeded with the trial when below the minimum of members ; or where the record discloses irregularities which, though not amounting to fatal defects, are of a gross character ; or where the accused has been denied material testimony, or otherwise prejudiced in his defence;" or the findings or a part of them are unwarranted by the testimony; or the sentence itself is inadequate to the offence, or too severe, or quite unmerited, or imposes a punishment not authorized by law, — in any such case the Reviewing Officer may, in his discretion, withhold his approval from, and formally disapprove, the sentence, in whole or in part, as the law or facts may require or render proper. His discretion indeed is here without restriction; its exercise does not depend upon the quality of his reasons: whether or not any reasons are stated by him, or whether his actual reasons are in point of fact good and sufficient, or the reverse, the disapproval is equally effective In law. At the same time he will, of course, not properly disapprove without good reason- without better reason than the court had for the action which he fails to approve. Where, for example, the evidence in the case was conflicting, and It is apparent that the court, having the witnesses before it^ must have been the best judge of their relative credibility and of the weight of the testimony, it will in general be wiser for the Reviewing Officer to defer to, rather 692 than disapprove, its conclusion.'' Nor will he properly disapprove a sen- tence on account of a mere error on the part of the court which does not affect the merits or Impair the final judgment — as, for instance, an im- proper rejection of testimony offered by the defence, which however would have added to the case no material facts.^ Nor wiU he ordinarily disapprove where he can have the defect remedied by a remsion by the court, as pres- ently to be indicated. "> " The effect of the disapproval Is not merely to annul the sentence hut also to prevent the accruing of any disability, forfeiture, &c., which would have been Incidental upon an approval." Digest, 672. And ?ee Circ. 12 of 1883. The disapproval Is " tantamount to an acquittal by the court." 13 Opins. At Gen., 460. That the fact of the disapproval does not divest the accused of the right to plead the acquittal or conviction in the event of a second arraignment for the same offence — see Chapter XVII — " Plea of Former Trial." » See an instance in G. C. M. O. 43 of 1885. "^Capt. Weisner'g case, Am. Archly., 5th Series, vol. 2, p. 895; also G. O. 153, Dept. of Dakota, 1881 ; Opinion of Atty. Gen. Brewster In 18 Opins., 113. Similarly, upon an application for new trial in the criminal practice, — " if there be conflicting evidence on both sides, and the question be one of doubt, it seems the verdict will generally be permitted to stand." Wharton, C. P. & P. | 813; also Wright v. State, 34 Ga., 110 ; Whitten v. State, 47 Id., 297. «See G. O. 70, Dept. of So. Ca., 1865. In such a case the reviewing authority should in general simply express his disapprobation of the ruling, as indicated under the next bead. MILITARY LAW AND PRECEDENTS. 453 Approval or disapproval of proceedings other than sentence. Art. 104, as has been seen, provides for an approval of the sentence, and in no other of the Articles Is any other form of approval indicated. In practice, however, the Reviewing Officer approves also, or disapproves the " finding " or " pro- ceedings," both In connection with or distinct from the sentence, if any. Where there is a sentence, he may, and often does, exercise the authority of disapproval as to some portion or portions of the proceedings not essential to support the sentence; such disapproval not being a determinate legal act like the other, but an expression of disapprobation or difference of opinion on the part of the commander. Thus he may, in his review, disapprove a ruling of the court upon an objection to evidence, or a ruling upon some inter- locutory matter as a motion for a continuance, which, though erroneous, does not impugn the final judgment; or he may disapprove some statement or omission In the record, which, not being at variance with a statutory require- ment, does not constitute a fatal defect. But this form of unfavorable com- ment is entirely consistent with a final approval of the sentence or of a punishment: a disapproval indeed of certain of the proceedings is often accompanied by an approval of the sentence or of a part of it. Censure with Disapproval. The expression of a disapproval is sometimes and properly accompanied by animadversion upon the court,^ the prose- 693 cution, the administration of a command,^ &c. Such comn.ent has not unfrequently been added where the court, in the opinion of the reviewing authority, has failed to appreciate the gravity of the ofEence and awarded a too lenient punishment. Reviewing officers have also not unfre- quently been induced to remarli upon the very improper admission or rejection of testimony offered.™ Allowance of new trial, upon disapproval. It was held by Atty. Gen, Wirt, in the early case of Captain Hall," that a reviewing officer, ia disapprov- ing a sentence, is authorized further, in his discretion, (for the allowance Is not a matter of right,) to i order a new trial of the accused; provided he specifi- cally applies therefor, thus waiving his privilege under the provision agalust second trials for the same offence now contained in Art. 102. But, beside the new trial granted under these circumstances in the case of Hall, the similar in- stances in our service have been very few and rare,^ and the subject of new trial Is now one quite without material significance in our military law and need not therefore be dwelt upon. It is to be noted that it is only upon, and as an incident to, a disapproval of a sentence that the new trial can be allowed ; after approval there can legally be no such proceeding. Action where the accused is insane or imbecile. Here should be 694 noticed the action to be taken in cases in which the accused is found « See, for example, the recent Instance In G. C. M. O. 56 of 1893. In this case, where the court, in finding the accused guilty of a. duplication of pay accounts, sen- tenced him only " to be reprimanded," the Secretary of War ohserves^" That a court- martial, comprising officers of rank and experience, should so lightly regard the offences here fully established and found, is a reproach to the service, and the proceeding is In marked inconsistence with the duty of protecting and maintaining that high sense of personal honor which has long characterized the reputation of the army." " "An examination of this case and that of " (another officer named) " tried by the same court-martial, has fully convinced me" (the President) "that a condition exists at Fort that must, if allowed to continue, result in scandal and demoralization." G. C. M. O. 27 of 1888. " G. C. M. O. 37, 44, 84, Dept. of the Platte, 1892 ; Do. 78, Dept. of Dakota, 1892. "1 Oplns. At. Gen., 233, (1818.) »See Instances in G. 0. 18 of 1861; Do. 8, 9, 26, First Mil. Dlst., 1869. "The privilege has naturally been but seldom exercised; parties convicted and sentenced be- ing in general satisfied that the proceedings In their eases should be terminated by the disapproval, on whatever grounds the same may be based." Digest, 536. 454 MHilTAKY LAW AND PRECEDENTS. by the court, or deemed by the reviewing authority himself, to have been at the time of the ofEence or the trial, or to be at the time of the review, mentally deranged or otherwise irresponsible. When the accused was ap- parently insane, &c., at the commission of the offence, and the court, notwith- standing, have sentenced him, the reviewing officer will properly disapprove the sentence ; and in such a case, or in one where the court has not proceeded to sentence, but the fact of insanity, &c., appears from the evidence, or the find- ing, or a recommendation of the members, he will in general properly discharge the accused, (under the 4th Article of war,) or recommend his discharge by superior authority, and take measures for his commitment, if the case warrants it, to the Government Asylum for the Insane. Where the insanity, &c., has de- veloped since the commission of the ofCence, the reviewing oflicer will in gen- eral properly approve and remit the sentence, (if any,) with similar action as to discharge, &c. ; first, if desirable, assuring himself as to the question of sanity by causing 'the accused to be examined by a medical oflBcer or board.*" II. RETURN OF THE PROCEEDINGS FOR CORRECTION. Nature of the Authority. Incident to the discretion, vested by the code In the Reviewing Officer, (whether military commander or President,) to approve or otherwise act upon the proceedings and sentence, is the authority, long recognized at military law,°° (and now affirmed in the Army Regula- 695 tions,") to cause any error or errors appearing in the record, and capable of correction, to be corrected by the court before final action taken by him on the case. Where, in reviewing the record as transmitted to him, he believes that he has discovered a material omission or other defect, either in the findings or sentence or some Interlocutory proceeding of the court, which may properly call for a disapproval, he may, instead of formally disapproving, return the record to the court for the purpose of having the requisite amendment made, with a view, if it be duly made, to a final approval. To this alternative indeed a reviewing officer will in general naturally and properly resort, provided the court has not yet been dissolved — as of course, (except In an emergency,) It should not be before a case tried by it has been finally acted upon. He may also be called upon to take this course by a superior commander or the President, who, upon the proceedings being transmitted to him for final action, has discovered some material error therein. It Is evi- dently only by the return of the record to the court that the correction can legally be procured to be made, since the reviewing officer cannot make it himself Independently of the court,"" nor can the court, after it has once duly completed and forwarded to him the record, recall it for modification.'" " See, as illustrating the text, eases in the following Orders : — G. O. 54, Dept. of the Pacific, 1864 ; Do. 13, Northern Dept., 1864 ; Do. 49, Dept. of the Susquehanna, 1864 ; Do. 81, Middle Dept, 1865; Do. 5, Dept. of Ark., 1866; Do. 22, Dept. of Cal., 1866; Do. 40, Dept. of Va., 1866 ; Do. 62, 73, First Mil. Dist., 1867 ; Do. 1, Div. of the Pacific, 1872 ; G. C. M. O. 39, Dept. of the Mo., 1868. * » Kennedy, 214 ; McNaghten, 146 ; O'Brien, 277 ; De Hart, 203 ; 18 Opins. At. Gen., 119 ; Swaim •;;. U. S., 28 Ct. CI., 173. It is equally recognized in the Navy. 4 Opins. At. Gen., 19 ; 6 Id., 204 ; Ex parte Eecd, 100 TJ. S., 22 ; Smith v. Whitney, 116 U. S., 168. And see recent cases in G. C. M. O. 35, 38, Navy Dept, 1892 ; Do. 9, 93, 102, 103, Id., 1893. Compare the analogous authority of the criminal Judge to call upon a jury to correct a defective verdict. Wharton, C. P. § 751 ; 1 Bishop C. P. 5 1004 ; Regina ■». Meany, 9 Cox, 233. Tar. 1043. "The action talten by the court is usually designated in practice by the term " Eevlsion." "The situation is of course to be distinguished from that of a court which has not yet transmitted its proceedings to the reviewing officer for bis action, and which, until it does so, may reconsider and reform its findings and sentence at discretion. MILITARY LAW AJTO PEBOEDENTS. 456 OCCASIONS AND ailOTTNDS FOB ITS EXEBCISE. These, as stated In the Army Regulations, (par, 1043,) are—" When the record of a court-martial exhibits error In preparation, or seemingly erroneous conclusions on the part of the court." More fully and specifically, these grounds and occasions, (simi- larly to those which may warrant a disapproval of the proceedings,) may be said to consist of the following :— 1. Clerical omissions or mistakes in material formal particulars in the making up of the record; such as— an omission to prefix or append a copy of the order convening the court or of an order modifying the detail, &c., or to specify the numbers present at any session, or to state the fact of the administration of the oath or of the according 696 of the right of challenge, or to include a portion of the charges of specifi- cations, or to enter the pleas made thereto or any special plea, or to show that the witnesses were sworn, or fully to record the evidence, finding, or sentence, or to attach an exhibit; or a mis-statement of the name of the accused in the sentence or a specification, thus making a material variance. And with these Is to be classed an omission by the presiding officer or judge advocate to certify the sentence or authenticate the record: 2. Errors of law or fact, or of judffment or discretion, on the part of the court, in its rulings or conclusions. Such are, mainly, errors in the substance of the findings or sentence — as that the findings, or some of thenj, are not warranted by the evidence, or are based upon the improper admission or rejection of evidence ; " or that the sentence is not warranted by or consistent with the findings, or is not itself legally authorized for the offence or offences found ; or that the sentence is Inadequate, or undfily severe, or Inappropriate or inexpedient under the circumstances of the particular case. Whether the defect be occasioned by inadvertaiee, or arise from a miscon- ception of law or military usage, or from an imperfect logic or a misuse of the judicial faculty, it is of course most desirable that It be removed. If practicable, from the proceedings, and the due and rational course of justice be relieved from obstruction and embarrassment. This is particularly to be desired where there has been a edrwiotion, since, in the absence of the cor- rection, the sentence may not legally be capable of execution or for other reason may properly have to be disapproved. But In a case of acquittal also It is no more than just that an error in form or substance should be caused to be corrected, in order that the record may go on file so perfected that the accused will be fully sustained by it In the event of a subsequent plea of autrefois acquit. EBBOES WHICH CANNOT BE COBBECTED. Radical fatal defects, sudi as an Illegality in the constitution or composition of the court, or a want of jurisdiction of the offence or offender, are of course irremediable by this 697 procedure. So, defects or errors cannot here be corrected which from their nature can be remedied or prevented only at the stage of the proceedings at which they occur, or at least at some time pending the trial — as errors In the charges or specifications, or misrulings of the court upon objections to testimony. Further, the object of the revision being to make the proceedings conform to the fact, the power in question does not extend to the correction of errors of form, capable of being corrected if the facts warrant, "A modification by the court of a finding may require a modification in the sentence, GriflJths, 90. The court, on the revision, may so far change the finding as to substitute a conviction for an acquittal, adding thereupon a sentence. Griffiths, 92 ; G. O. 6, Dept. of Va. & No. Ca., 1864 ; Do. 13, Dept. of Va., 1866. 456 MILITARY LAW AND PRECEDENTS. When the facts do not warrant the correction. Thus If the members or jndge advocate were not in fact swom, the court, on being reassembled, could not supply an omission of the usual statement in regard to the administering of the oath, by a statement to the effect that the members, &c., were duly sworn ; nor could it cure the defect by thereupon causing itself, or the Judge advo- cate, to be sworn nunc pro tune. So, if only four members were present on a certain day of the trial, the court could not, on reassembling, declare that a quorum was really then present, nor could It make good or replace the proceedings of that day by repeating them formally and with an actual quorum. COBrBECTION BY MEANS OP NEW TESTIMONY NOT AXLOWABLE. Nor can the record be returned on account of an error which can be cor- rected only by means of the introduction of testimony on the merits. The object of the proceeding is not to reopen an investigation which has been closed, or rehear a case once tried and brought to judgment, but simply to revise what has been judicially completed. To permit the introduction of such additional testimony upon the merits would amount substantially to a new trial." Moreover such testimony would have to be received subject to the usual objections and to cross-examination, and to the further Introduction of other testimony to meet It, on the part of the defence; and the investiga- tion would thus not only be reinitiated but indefinitely prolonged. And although the evidence admitted were simply that of previous witnesses recalled to elucidate their former statements, there would still practically be a rehearing, and the proceedings would be liable to be protracted in the same manner as where the witnesses were new, only in a less degree. Interest reipub- 698 licae ut sit finis litium, and most of all that part of the republic em- braced in the military state, where prompt and final action is of the very essence of government and discipline. That no evidence whatever shall be presented or heard at this stage is indeed a principle established by the great weight of authority," and this principle, upon a recent reconsideration of the subject, has been emphatically realBrmed in General Orders," and incorporated in the Army Regulations." COTTBSE OP PBOCEEDING. The record is returned to the court, through the president, or through the judge advocate, (from whom, pursuant to par. 1041, Army Regulations, it should have been received,) with an order or oflS- cial communication requiring it to reassemble in the case and reconsider the proceedings, or the findings or sentence, with the view of making a certain Indicated correction, (or corrections,) therein. Where the alleged error is merely clerical or formal, it Is commonly sufficient merely to specify it.' In an instance of a supposed error of law or opinion, in the verdict or award Of punishment, a brief statement of the reasons deemed to call for the amendment is usually added, or indicated as contained in an accompanying indorsement or report. "6 Oping. At. Gen., 204-5; G. C; M. O. 6T, Dlv. Atlantic, 1888; Do. 89, D®t. of the Platte, 1892. " McNaghten, 146 ; Simmons § 724 ; note 3 ; Clode, M. L., 167 ; Macomb, 69 ; O'Brien, 280; De Hart, 204; G. C. M. O. 16, Dept. of the Platte, 1875. And see 6 Opins. At Gen., 201. The present British law Is to the same effect. Army Act § 54, (2;) Rules of Procedure, § 51, (A.) «'2G. O. 47 of 1879; publishing an opinion of Judge Advocate General Dunn. And see Digest, 679 ; also G. C. M. O. 130, Dept. of Dakota, 1885. In a case in G. C. M. O. 36, Dept. of the Mo., 1886, the proceedings were returned to the court for the Insertion of evidence of previous convictions. But this is not evidence on the merits. And see Do. 36, Id., 1887, where the record was returned " because of an irregularity in receiving " such evidence. "•Par. 1043. MILITARY LAW AND PEECEDETTTS. 457 Upon the receipt of the order, the judge advocate, (or president,) notifies the several members, who proceed to reassemble at the original place of meet- ing, or at a new one if the order, as it may, shall name such. The same rule prevails at such meeting as at all the sessions of a general court-martial, that five members are both necessary and sufficient for the transaction of 699 business.^" If meanwhile, by absence or any casualty of the service, the members who sat on the trial have been reduced below five, the order cannot take effect. But if five at least can assemble, it is immaterial that their number be considerably less than the original number of the court in the case, provided — for this is essential — such five all took part in the trial and judgment." If the court has been increased in the number of its mem- bers, it cannot, as increased, (i. e. composed In part of the new and addi- tional members,) be convened to revise proceedings taken by it before such increase.*' A proper quorum being convened, the judge advocate should withdraw, the proceeding being analogous to that which takes place upon a deliberation when the court is cleared." The accused is not present. Of course, if evidence were taken, the accused would properly attend, (with his counsel, if any,) and the session would be open to the public; but, as already stated, the occasion is not one at which testimony can be Introduced. If indeed the correction be one which cannot accurately or fairly be made without the concurrence of the accused, as where it concerns the form of some peculiar special plea, motion, objection, &c., interposed by him, it will be regular and proper to admit him (with the judge advocate,) to the revision. Such cases, however, are most rarely presented, since the reading, on each day of the trial, of the previous day's proceedings wiU In general enable the accused to have every particular relating to his defence fully and precisely set fortli. Upon the assembling of the requisite members, the order, and accompanying papers if any, are read, and the court, after such deliberation and voting as may be necessary, proceeds, if concurring with the Reviewing Officer, to rectify the error by making the proper minute on the subject." If it determine that no error has been comntltted, it will return the record with an official 700 communication, declining, for reasons stated" to make the correction." In such event the Reviewing Officer, cannot of course actually compel the court to take the action proposed," but he may return to it the record for a reconsideration, of its conclusion, at the same time responding to or com- menting upon the reasons of the court as he may deem expedient. The court " DiGESO?, 678 ; 7 Opins. At. Gen., 338 ; G. C. M. O. 54, Dept. of Texas, 1873 ; Do. 35, Dept. of the Platte, 1891. In the case of a regimental or garrison court. It would be necessary of course that all the three members should reassemble. •" Digest, 678 ; G. O. 45, Dept. of the Bast, 1865. In a case in G. O. 28, Northern Dept., 1865, the proceedings were disapproved because one officer of the original detail who did not sit on the trial took part in the revision. "G. O. 64 of 1827. (Ruling of President J. Q. Adams.) "See Clode, M. L., 167. " The request to make the correction is one which, in a proper case, " a court with a soldierly sense of its duties never refuses." G. C. M. O. 7, Dept. of the Platte, 1893. ♦iiThe court is not obliged to give reasons for adhering to the proceedings as they stand, but it will in general be no more than properly deferential for it to do so. *> Instances of the court declining to amend may be noted in the following Orders : — G. 0. 48, Dept. of Va. & No. Ca., 1864 ; Do. 21, Dept. of the Ohio, 1866 ; Do. 48, Dept. of Dakota, 1868 ; Do. 5, Dept. of the Lakes, 1869 ; G. C. M. O. 159, Dept. of the Mo., 1871 ; Do. 55, Dept. of Cal., 1875. In G. G. M. O. 20, Dept. of the Colorado, 1894, the Reviewing Officer notices an " unbecoming pride of opinion," on the part of the court. In refusing to make a proper correction. « DlGESOV 878. Plpon & Col., 63. 458 MILITARY LAW AND PRECEDENTS. may then decide to adopt his view and make, finally, the correction, or It may again return the proceedings with an official statement to the effect that It adheres to Its former determination, adding such argument or observations as it may see fit. There is in our military practice no limit to the number of times that the record may thus be returned," but it is not often that the same Is in fact returned a second time after the court once decide not to make the amendment. Upon such conclusion the Reviewing Officer, (unless convinced that the court l.«! In the right in the matter,) will commonly dispose of the case with an expression of disapproval of Its action on the revision, as also, in general, of the sentence, finding, or other proceeding In respect to which the desired correction has been declined to be made. If, however, the error 701 does not affect the validity of the sentence, he may, while disapproving the conclusion of the court, approve the sentence rather than that the offender go unpunished." Perm of recording the revision. The proceedings of the court upon the re- vision are to be recorded with the same formality as those had at any other session.*" The record of the revision will propprly consist of a continuation of, or rather supplement to, the previous record lu the form of an addition at the end of the original proceedings.'^ It will regularly comprise the reconven- ing order and accompanying papers, or copies of the same, a statement of the fact of the reassembling at the time and place specified, with a designa- tion of the quorum of members present, and a brief account of the action taken In considering the matter of the alleged error, making the correction, &C. In setting forth the details of a correction, proper reference will be made to the part of the original record in which the error appears. The record of the revision will be authenticated by the signature of the president: if an amended sentence is adjudged It vnU be certified In the same manner as the original sentence." It Is particularly to be noted that the action had and correction made by the court, (except where consisting merely In the affixing of an omitted sig- nature,) can legally appear— be stated and made — only in and by the supple- mentary record of the revision; that it cannot, by interlineation, annotation, or otherwise, be inserted in, or attached or added to, the original proceedings. These must remain intact as recorded; no word or statement thereof, how- ever erroneous or objectionable per ae, cm be erased, expunged, or modified; nor can a re-wrltten and corrected page or extract be substituted for a defec- tive portion In the body of the record.** « G. O. 2 of 1844 ; O'Brien, 279. Digest, 678. So a criminal Judge may " send back " a Jury " any number of times to reconsider their finding." Eegina o. Meany, 9 Cox, 233. In the British military law the proceedings may be returned to the court for correction but once. Army Act § 54, (2.) It may be noted that where the court has been made or attempted to make the correc- tion, the proceedings may again be returned for the correction of errors in the form or substance of the revision itself, or for the purpose of having it completed or eluci- dated. See the marked instance in Gen. Swalm's Case, as fully set forth in G C M O 19 of 1885. .... " See case in G. C. M. O. 16, Dept. of the Platte, 1875 ; also G. C. M O 19 of 1885 " Digest, 646. « See G. C. M. O. 29, Dept. of the Mo., 1874. " Griffiths, 90 ; Clode, M. L., 167 ; O'Brien, 280 ; G. O. 42, Dept. of the Tenn 1863 • Digest, 646. '' ' "Simmons § 726; Kennedy, 215; Griffiths, 90; Clode, M. L., 167; Macomb 69- O'Brien, 280; De Hart, 205; Digest, 646, 679; Capt. Barron's Trial p 47 ■ G o' 42, Dept. of the Tenn., 1863 ; Do. 26, Northern Dept., 1865 ; Do. 64 Dept of Dakota' 1867; Do. 42, Id., 1868; Do. 3, Dept. of the South, 1870. G C M O 47 (H A 1 1886 ; Do. 36, Dept. of the Mo., 1886 ; Do. 35, Dept. of the Platte, 1891 • Do 6 26 Dept. of Cal., 1891. In a recent case in G. C. M. O. 114, Dept. of Cal 1882 Gen MILITAKY LAW AND PRECEDENTS, 459 702 The correction must be the act of the court. The proposed amend- ment can only be made by the court as convened for the purpose, and must be the act of the court as such. That the error is a merely clerical one does not authorize its being amended by the judge advocate alone, and any correction assumed to be made either by that official, or by the president or other member, apart from the court and without its authority, by means of an erasure, interlineation, addition to the record or otherwise, must be wholly unauthorized and ineffectual in law." Nor can either the president or the judge advocate, at this stage, properly add his signature, (previously omitted,) to the original proceedings without the concurrence of the court. In a word, each and every amendment, whether of form or substance, must be made by the court, or by its direction, and as a part of its formal pro- ceedings had under the order reassembling it. III. ACTION OF THE PRESIDENT AS CONFIRMING AUTHORITY. PROVISIONS OP THE ARTICLES OP WAR. We have seen that, under Art. 104, the President is the approving officer in all cases in which he has himself ordered the court. The law on the subject of the confirmation 703 of military sentences by the President, which has been compared to "the judgment of a court of last resort,"" is contained in Arts. 105, 106 and 108, as foUows :— " Abt. 105. No sentence of a court-martial, inflicting the punishment of death, shall be carried into execution until it shall have been confirmed by the Presi- dent; except in the ca^es of persons convicted, in time of war, as spies, muti- neers, deserters, or murderers, and in the cases of guerilla-m,araud6rs, convicted, in time of war, of robbery, burglary, arson, rape, assault with intent to com- mit rape, or of violation of the laws and customs of war; and in such excepted cases the sentence of death may be carried into execution upon confirmation by the commanding general in the field, or the commander of the department, as the case may be. " Abt. 106. In time of peace no sentence of a court-martial, directing the dismissal of an officer, shall be carried into execution, until it shall have been confirmed by the President. " Abt. 108. No sentence of a court-martial, either in time of peace or in time of icar, respecting a general officer, shall be carried into execution, until it shall have been confirmed by the President." Schofleia disapproves the action of the court, in " the rt-vision of the plea, which was incorrectly made by Inserting the omitted words in the body of the original record, instead of adding them in the record of the revision with the proper reference to the original proceedings." (Citing Digest.) " The irregularity, however, is not regarded as affecting the legality of the proceedings." "G. C. M. O. 47, (H. A.,) 1886; Do. 38, Dcpt. of Texas, 1893; Do. 22, Dept. of the Col., 1894 ; G. O. 3, Dept. of the South, 1870. Compare, in connection with the present Title, the following Orders, in which are published proceedings had upon Revision, in a variety of cases: — G. O. 61, 75, 76, 90, Army of the Potomac, 1862 ; Do. 23, Dept. of Va. & No. Ca., 1863, Do. 6, 48, 53, 60, Id., 1864 ; Do. 13, Dept. of Va., 1866 ; Do. 21, Dept. of the Ohio, 1866 ; Do. 48, Dept. of Dakota, 1868 ; Do. 5, Dept. of the Lakes, 1869 ; Do. 57, First Mil. Dist., 1867 ; Do. 22 Id., 1869; G. C. M. O. 159, Dept. of the Mo., 1871; Do. 55, Dept. of Cal., 1875. Such proceedings are now rarely specifically promulgated. In general, where a re- vision has been had and a correction made in the findings or sentence, or otherwise, only the proceedings as flnallv settled are published. 06 " Like the judgment of a court of the last resort, final and conclusive." Wooley v. V. S. 20 Law Kep., 631. But the approval ty u military commander of a sentence which does not require the action of the President, (or other superior authority,) is equally final and conclusive. See ante — "Approval." 460 MrLITAEY lAW AND PKECEDENTS. ABT. 105 — ^ACTION XTPON DEATH SENTENCES. This Article con- sists of a provision of Art. 65 of tlie code of 1806, consolidated with and modi- fied by provisions of the Act of July 17, 1862, c. 201, s. 5, the Act of March 3, 1863, c. 75, s. 21, and the Act of July 2, 1864, c. 215, s. 1. The Article of 1806 had required the approval of the President in cases of death sentences, only in time of war. The Act of 1862 made this approval a requisite to the execu- tion of aU death sentences. The Act of 1863 engrafted an exception upon this general rule by authorizing the execution of such sentences " upon the ap- proval of the commanding general in the field," in cases of " any person con- victed as a spy or deserter, or of mutiny or murder." The Act of 1864 ex- tended this authority by empowering "the commanding general in the field, or the commander of the department, as the case may be," to carry into execu- tion all sentences imposed by military commissions upon " guerilla-ma- 704 rauders for robbery, arson, burglary, rape, assault with Intent to com- mit rape, and for violations of the laws and customs of war." It may be observed that Art. 105, probably by inadvertence, has included this class of war-criminals as subject to trial by court-martial: they are properly triable only by military commission, — the tribunal employed for their trial during the late war, — as the Act of 1864 recognizes. These exceptions related to time of war, and are therefore so distinguished in the present Article. The effect of the Article thus is — that, in time of peace, and in time of war except in the particular cases specified, (when the military commanders indicated may finally act upon and enforce the sentence,) a con- firmation by the President is essential to authorize the execution of the death penalty. In Chapter XXV will be considered in what consists the crime of the spy, and the crimes of desertion, mutiny and murder. What is the further ofEence of " violation of the laws and customs of war," and what is the class termed in the statute " guerilla-marauders," or, as they have commonly been designated, " guerillas," will be set forth in Paet II relating to the Law of War. The established principle that a sentence of death, (or any other sentence,) requiring the cbnfirnmtion of the President, must receive the approval of the proper military commander — the original Reviewing Officer — ^before it is for- warded or presented for the action of the President, or confirmed by him, has already been stated. Of course if such sentence is disapproved by such com- mander, nothing remains for the President to act upon, and the proceedings are not forwaraded. The further principle that, in the absence of any legal requirement as to the forrn of the confirmation, the same may be authenticated and declared by the Secretary of War, as the representative of the President, wiU be more par- ticularly noticed under the next head. AKT. 106 — ^ACTION UPON SENTENCES OF DISMISSAL. This Article is but a transcript of a provision to the same effect contained in Art. 65 of the code of 1806. In providing that, in time of peace, sentences of dismissal, in order to have effect, shall be confirmed by the President,^" it impliedly 705 authorizes their being executed upon the approval of the proper military commander alone, in time of war — an authority further conferred by Art. 109. "In a single case — that of Surgeon Sumby — the President has exercised the power of confirming a sentence of dismissal of an officer of the District of Columbia Militia, after the same had been duly approved hy the Brig. General Commanding. G. O. 17, Hdqrs., D. C. M., July 14, 1890. These militia were not at this time " called forth," hut the power was apparently exercised in view of the Act of March 1, 1889, c. 328, which, in sec. 6, provides " that the President of the United States shall be the commander- i«-chief of the militia of the District of Columbia." MILITAEY LAW AND PBECBDENTS. 461 Form of confirmation' — ^Authentication by the Secretary of War. The only material questions which have been raised under this Article are— whether, and If so In what form, the action of the President, In confirming a sentence of dismissal of an officer, may legally be authenticated by the Secretary of War. These questions have within a recent period given rise to much judicial consideration. It had been held by Judge Advocate General Holt in Major Haddock's case, in 1867, and later in that of Major Runkle," (see post,) that a confirmation of a sentence of dismissal made and subscribed by the Secretary of War was presumptively the act of the President and sufficient In law. In the latter case this view was sustained by the Court of Claims." In this case. In which the court-martial was convened by the President, the action taken on the sentence consisted of an endorsement signed by the Sec- retary in which it was stated that the findings and sentence were " approved," and It was added that, for reasons specified, " the President is pleased to remit all of the sentence except so much thereof as directs cashiering, which will be duly executed." On appeal of the case to the U. S. Supreme Court, It was there held," (in 1886,) that the action required of the President, in passing upon a sentence of dismissal under Art. 106, was judicial not administrative, and therefore not one of those cases in which, in the exercise of executive power, he " may act through the head of the appropriate executive department;" that his personal action and decision were here required ; but that it did not affirmatively appear, in that instance, that the proceedings had been ever laid before or submitted to him. " Under these circumstances," the court observe, " we 706 cannot say it positively and distinctively appears that the proceedings have ever in fact been approved or confirmed in whole or in part by the President as the Articles of War required." The court does not decide "what the precise form of an order of the President approving the proceed- ings and sentence of a court-martial should be, nor that his own signature must be affixed thereto. But"— the court concludes— " we are clearly of opinion that it will not be sufficient unless it is authenticated in a way to show, otherwise than argumentatlvely, that It is the result of the judgment of the President himself, and that it Is not a mere departmental order which might or might not have attracted his personal attention. The fact that the order was his own should not be left to inference only." The court refers, in its opinion, to the exercise by the President of the pardoning power, at the end of the action upcn the proceedings, but treats this as a quite distinct and Independent act, not affecting the matter of the approval of the sentence. But the Important point, famlUar to military law, does not appear to have been considered — that there can be no remission without an approval, and that the fact of the remitting by the President of a specific part of the sentence necessarily implies that the sentence must have been first submitted to the President and duly approved by him. The decision In Runkle's case took the army and the War Department by surprise. In the opinion of the author it was unsound law, and Indeed it has been since so qualified by decisions made in similar cases by the sanje court as to convey the impression that the court has little confidence in it as settling the law. Thus in Lieut. Page's case — one very similar to that of Runkle — the Court of Claims," following, as it supposed, the ruling of the Supreme Court, " Published In G. C. M. O. 7 of 1873. « 19 Ct. CI., 396. ••122 n. S., 548. "26 Ct. CI., 264. 462 MILITARY LAW AND PBECEDENTS. in the latter case, had decided in favor of the claimant on the ground that the approval of the sentence signed by the Secretary of War was insufficient and inoperative. But, on appeal to the Supreme Court, this decision also vyas reversed, and it was held"^ that, inasmuch as it was stated, in the form of action and approval, that, in conformity with the Articles of war the proceedings had been "forwarded to the Secretary of War and by him submitted to the President," the approval was to be presumed to be the act of the Presi- 707 dent, .whose actual sign manual, it was now held, need not be affixed. The court say — the " only possible conclusion " from this statement " Is that the approval was by the President." Later, in Captain Fletcher's case, the statement, signed by the Secretary of War, in the form of action and approval, was that, in conformity with the Articles of war, " the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War for the action of the President. The proceedings, findings and sentence are approved, and the sen- tence will be duly executed." It was held by the Court of Claims'" that, as the statement did not show affirmatively that the proceedings had been actually submitted to the President, the ruling in EunJfle's case, and not that in Page's case, was to be allowed as controlling. On appeal to the Supreme Court, this decision was reversed.'' The court remark that — " It would be unreasonable to construe the Secretary's endorsement as meaning that he had received the proceedings for the action of the President, In conformity with Article 65," (now Art. 106,) "and had approved them himself and ordered execution of the sentence in contravention of the Article. * * * While it is not said that the proceedings were submitted to the President, it is stated that they had been forwarded to the Secretary of War for the action of the President, and as that is followed by an approval and the direction of the execution of the sentence, which approval and direction could only emanate from the President, the conclusion follows that the action taken was the action of the President." And with regard to the case of Runkle, the court adds — " Refer- ence to the report of that case shows that the circumstances were so excep- tional as to render it hardly a safe precedent in any other! " The ruUng in Runkle's case has thus practically ceased to be authority." But while it can now scarcely be questioned that an approval by the Secretary of War of a sentence of dismissal of an officer of the army, where tlie proceed- ings had presumptively taken the usual direction, would be held valid and effective, the result of the ruling in that case has been that the President now personally subscribes all such forms of confirmation, as well as all other' 708 approvtls required of him by the Articles of war, with his sign manual, and they appear so signed in the General Orders promulgating the proceedings and action in the case.°° AST. 108 — Sentences respecting General Officers. This Article, repeated from a provision of Art. 65 of 1806, does not call for extended remark. It may merely be observed that a sentence " respecting a general officer " is a sentence imposing any punishment whatever, whether light or severe, upon an officer of that rank. «i 137 U. S., 673. And see 17 Opins. At. Gen., 19, 43 «>26 Ct. CI., 541. «■ 148 U. S., 84. Affirmed in Ide v. V. S., 150 U. S., 517. «As further illustrating this ruling, see 15 Oping. At. Gen., 290- 17 Id 43 397- Idc f. U. S. 25 Ct. CI., 401; Armstrong v. V. S., 26 Ct CI., 387; Senate Report, 868! 45th Cong., 3d Sess., March 3, 1879. . ° . MILITARY LAW AND PBKCEDENTS. 463 IV. ACTION OF COMMANDING GENERAL AS CONFIRMING AUTHORITY. The statutes authorizing and defining this action are Articles 105 and 107. ABT. 105. The cases in which, under this Article, sentences of death may be confirmed and executed by " the commandmg general in the field, or the commander of the department" have already been Indicated under the Title of the Action of the President as Confirming authority. AST. 107. This Article prescribes as follows: — "'No sentence of a court- viMrtial appointed hy the commander of a division or of a separate brigade of troops, directing the disrwissal of an offlcer, shall be carried into execution until it shall have been confirmed by the general commanding the army in the field to which the division or brigade belongs." This Article is a provision of the Act of December 24, 1861, of which the main portion is contained in Article 73, considered in Chapter VI, where are defined the terms " division " and " separate brigade." Like Art. 73, the present Article is operative only in time of war. It need only be observed that, as in cases of sentences required to be con- firmed by the President, the sentences Indicated in this Article, preparatory to being confirmed by the army commander, must be duly approved by the offlcer who convened the court or his successor in the command. 709 V. EXECUTION OF SENTENCES. THE LAW ON THE SUBJECT. The general law authorizing the execu- tion of sentences, (and which may be regarded as including sentences im- posed by regimental and garrison as well as general courts,) is contained in Art. 109, as follows: — "All sentences of a court-martial may be confirmed and carried into execution by the offlcer ordering the court, or by the offlcer com^ manding for the time being, where confirmation by the President, or by the commanding general in the field, or com/mander of the department, is not re- quired by these Articles." EFFECT OF THE ARTICLE. The effect of this Article is, that the sen- tence may be executed or caused to be executed by the officer who ordered the court and has approved the sentence, (or his successor in command,) in all cases except those in which the President, (by Art. 105, 106, 108, or Sec. 1326, Rev. Sts.,) or a superior commander, (by Art. 105 or 107,) is required finally to confirm the sentence; and that, in the excepted cases, the order for the execu- tion shall proceed from the President or such superior. In all but the ex- cepted cases, the approval of the original reviewing offlcer remains a complete and sufficient warrant and order for the execution ; and his action thereon is final and conclusive," and to forward the record for the action of the Presi- dent, &c., must be not only superfluous but unauthorized.'" DISCRETION OP " THE OFFICER ORDERING THE COURT," &c. The discretion of this offlcer is absolute under the Article in all cases not belonging to the excepted classes. Whether he shall confirm and execute the sentence rests entirely with him, and is for him alone to determine. Here no superior can direct or instruct him. Where the case involves a question «"The action" (under Art. 109,) "is not final until the oflBcer ordering the court shall confirm it. This confirmation is the judgment of the law." 19 Opins. At. Gen., 107. " Where the sentence " may be lawfully carried into execution on the confirmation of the officer ordering the court, neither the President nor Secretary has lawful authority to approve or disapprove" the same. 11 Oplns. At. Gen., 251. And see G. O. 341 of 1863. 464 MILITABY LAW AND PBKCEDENTS. of law or fact upon which, in a similar Instance, an opinion has been expressed by an official superior, he will, as remarked in referring to the 710 exercise of the power of approval under Art. 104, properly take such opinion into due consideration ; but he is -not required to concur therein, nor should he do so if the same does not accord with his own views of law and justice. To the exclusive authority here conferred upon him is attached an obligation to exercise such authority in conformity virith law, and for the best interests of the service as he understands them. THE TERMS USED TN THE ABTICIE. The technical or descriptive terms employed in Art. 109, such as "confirmed," "the officer ordering the court," " the officer commanding for the time being," have been construed in considering the subject of Approval and the provisions of Art. 104. EXECXTTION OF SPECIFIC PUNISHMENTS. The execution of the dif- ferent specific punishments imposable by sentence — as death, dismissal, im- prisonment, forfeiture, reduction, discharge, &c. — ^has already been fully con- sidered in Chapter XX. GENERAL PRINCIPLE GOVERNING EXECUTION — ^PUNISHMENTS NOT TO BE ADDED TO. When a legal military sentence has been duly passed upon and approved by the competent authority, "it becomes," in the language of the U. S. Supreme Court," " final and must be executed ;" that is to say" unless the power of pardon or mitigation, conferred by Art. 112, (or by the Constitution upon the President,) be interposed. That the adjudged punishment may not be added to, by or through the action or order of the reviewing officer, is a fundamental principle of the law of the execution of sentences.* Thus a sentence of simple dismissal, suspension, or discharge may not be made to work a forfeiture of pay, nor may a sentence of simple impris- onment be made to involve compulsory hard labor or solitary confinement. This principle has also been Illustrated In treating of the different punishments In Chapter. XX. The most marked instance in our military history of 711 a violation of this principle was the action of Major General Jackson, when commanding in Florida in 1818, In the case of Robert C. Ambrister, tried by a general court-martial for inciting and aiding the Creeks in prose- cuting war against the United States. The court first sentenced the accused to be shot; then, having reconsidered, as it could legally and regularly do, its judgment, substituted therefor the milder punishment — ^whleh thereupon became the legal and only sentence — " to receive fifty stripes on the bare back and be confined with a ball and chain to hard labor for twelve calendar months." In acting upon the case as reviewing officer. Gen. Jackson disapproved of the reconsideration, approved— as he could not legally do, since It did not legally exist — the first sentence, and ordered that the accused "be shot to death agreeably to the sentence of the court;" and he was shot accordingly." This order not only contained a false statement of fact, but— not being an act of war or resorted to in the exercise of martial law, but official action taken upon the proceedings of a court-martial under the Articles of war was " Dynes «. Hoover, 20 Howard, 81. "Harcourt, 133, 146; Maltby, 101; Simmons § 762; 11 Opins. At. Gen, 139 "A commanding officer charged with the duty of reviewing the proceedings of' the court cannot increase the severity of a sentence. He may approve or disapprove or mitigate but he cannot Impose a new sentence of a more severe character." Swaim i; U S 28 Ct. CI., 174. ■' "The record of this trial, with that of A. Arhuthnot tried by the same court 1b con- tained In full In American State Papers, Military Affairs, vol, I, pp. 721-734 And Bee Printed Trials of Arbuthnot and Ambrister, London, 1819. MILITARY LAW AND PBECEDENTS. 465 wholly arbitrary and Illegal." For such an order and its execution a mili- tary commander would now be indictable for murder. COITCLtrSIVE EFFECT OF AN EXECUTED SENTEKCE. It, is a further general principle that a sentence once duly approved or confirmed, and carried into execution, is beyond the reach, i. e. no longer subject to the action, of the Reviewing Officer, in the exercise of his authority under the Articles of war. In the first place, a sentence thus duly executed is wholly beyond the control of the revisory function — is no longer subject to review by the com- mander who has approved or the President who has confirmed it. Of course ^ thing done — as an imprisonment undergone, for example — cannot, physically, be undone.'^ But where, though the punishment itself cannot be undone. Its effect may be — as in a case of a sentence of dismissal of an officer or of 712 the forfeiture of the pay of a soldier — ^here also the sentence cannot be recalled or reopened, nor can the executed penalty be reversed, rescinded, or .modified." Further, such a sentence is beyond the reach of the pardoning power: neither can the commander, under the authority conferred by Art. 112, " pardon or mitigate " an executed punishment, nor can the President remit it by a pardon of the offender under the Constitution." Thiis, as to a sentence of court-martial when duly and fully executed, the Reviewing OflScer is functus officio, his authority is exhausted ; some new act quite outside of the powers of revision and pardon must be resorted to for the rehabilitation or relief of the party. An officer, for example, duly dismissed the service by sentence of court-martial cannot be restored to the army by an attempted revoking of the confirmation or setting aside of the sentence, or by a pardon or remission, but can be so restored only by a new appointment made by the President and confirmed by the Senate. And an officer or soldier who has been condemned by an executed sentence to forfeit or pay to the United States a sum of money, can be relieved from or reimbursed for such payment, only by an act of legis- lation in his behalf on the part of Congress. VI. SUSPENSION OF EXECUTION OF SENTENCES. ABT 111. The provision of law on this subject is contained in this Article, as follows : — "Any officer who has authority to carry into execution the sentence of death, or of dismissal of an officer, may suspend the game until the pleasure of the President shall be known; and, in such case, he shall irmnediately trans- mit to the President a copy of the order of suspension, together with a copy of the proceedings of the court." EFFECT AND OBJECT OF THE ARTICLE. This Article, derived from a provision to a similar effect of Art. 89 of 1806, extends to officers, when author- ized, (under Art. 105, 106, or 107,) to execute sentences of death or dismissal, the privilege of suspending the execution of the same till they shall have been submitted to and finaUy acted upon by the President; in other words 713 the t)riyilege of devolving upon the President the responsibility of the action to be taken upon such sentences. "The Report of the House Committee on Military Affairs condemned Jackson for this very conduct, and other conduct In the case, and also reflected upon the court. Am. S. P., Mil. At, vol. 1, p. 735. (Jan. 12, 1819.) " See Hoffman v. Coster, 2 Whart., 468. "4 Opins. At. Gen., 170, 274; 6 Id., 369, 514; 10 Id., 64; 15 Id., 291, 433; 17 Id., 32, 297 ; 18 Id., 21. " Bx parte Garland, 4 Wallace, 381 ; 12 Opins. At. Gen., 548. As to the remission of oontUming punishments, see pott. 440593 O - 42 - 30 466 MILITARY LAW AND PEECEDENTS. The principal object, however, of the Article, which Is operative only in time of war, would appear to be, not to relieve commanding officers of their due responsibility in proper cases," but to afford an opportunity for the remission or mitigation of a sentence of death or dismissal when, in the opinion of the commander, it should properly be remitted or mitigated." The power of pardon or mitigation In cases of such sentences cannot, even in time of war, legally be exercised by a mlUtary reviewing officer, but, by Art. 112, is expressly reserved to the President." By the suspending, therefore, of the execution of the sentence as Indicated in the Article, an opportunity is afforded for the exercise of executive clemency, if the President think proper to extend it. APPROVAL A PREBEQTTISITE TO SUSPENSION. As has already been remarked, the exercise of the function specified In this Article must have been preceded by a formal approval of the sentence by the officer ; in other words, the execution of a sentence which has not been duly approved, or which has been disapproved, by the convening authority, (or his successor in command,) cannot legally be suspended, nor can the sentence be acted upon by the Presi- dent under the Article." TRANSMISSION OF THE ORDER AND PROCEEDINGS. The " order of suspension " is merely the official statement, appended to the record after the sentence, and signed by the reviewing authority, to the effect that the sentence is approved but its execution suspended, and that the proceedings are transmitted to the President for his action under the 111th Article of war. The transmittal of copies only is called for by the Article: in practice, how- ever, the original proceedings, with the original action of the reviewing officer, are always forwarded. " THE PLEASURE OP THE PRESIDENT." This term is a broad 714 one, and the Article has been construed in practice as not limiting the President to a remission or mitigation of the punishment or punishments, but as empowering him to approve or disapprove the suspended sentence, (or to approve in part and disapprove as to other part,) in the same manner and with the same effect as if it had been a sentence to the execution of which his confirmation was made requisite by Art. 105 or 106. VII. PARDON AND MITIGATION OF PUNISHMENT. EXERCISE OP PARDONING POWER BY THE PRESIDENT, IN MILI- TARY CASES. The President, where he is Reviewing Officer, vig. when act- ing upon the sentence of a court convened by himself, or a sentence requiring his confirmation or action, while he may of course exert the plenary power vested in him by the Constitution, in practice almost invariably exercises a partial pardoning power of remission of the punishment analogous to that conferred upon reviewing officers by Art. 112, (see post.) In otJier military cases,— as in cases of applications or appeals addressed to him for clemency by officers or soldiers, whose sentences have been sometime finally acted upon by the competent authority and who are undergoing the same,— here, where he acts not as reviewhig officer but as constitutional pardoning power, he exer- cises a full or limited measure of such power according to circumstances. In some early cases formal pardons wer e issued by the President to enlisted " See G. O. 139, A. & I. G. O., Richmond, 1863. ■" Note context of Art. 89 of 1806. " See G. O. 97, 101, 147, of 1863 ; 6 Oplns. At. Gen., 124-6 "G, 0. 209 of 1863, MIIiITAEY LAW AND PEBOEDENTS. 467 men under sentence," but at present, In cases of prisoners confined at Leaven- worth or Alcatraz Island, the mere remission In Orders" of the unexecuted portion of the punishment of Imprisonment Is the form', commonly, of the act of grace. In cases of officers under sentence, formal pardons. In terms similar to the pardons Issued to civilian offenders, have more frequently been granted," but even these have not been common. 715 AS EXTENDED TO CLASSES OF PERSONS — ^AMNESTY. The constitutional pardoning power, being plenary, is not restricted in Its exercise to the pardoning, or remitting of the punishment, of a single individual at a time. The authority of the President, under the pardoning power, to extend amnesty to a class of similar offenders has been affirmed by the authorities,^ and he has repeatedly, by proclamation or general order, offered pardon to deserters who may return to duty within a time specified.™ This instance indeed illustrates another attribute of the power under consideration, vie. that it may be exercised prior to the conviction or trial of the offender," Other attributes of the pardoning power will be considered in connection with the next Subject. EXERCISE OF THE POWER OE PARDON AND miTIGATION BY COSEKEANDERS — ^ART. 112. This provision, derived from Art. 89 of the code of 1806, and which completes the grant of powers to the officers authorized to act upon the sentences of courts-martial, is expressed as follows: — "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 punishm,ent of death or of dismissal of an officer." Nature of the Authority Conferred — Remission. This Article confers upon the commanders specified two distinct powers — a power to " pardon " and a power to " mitigate." As to the former, this, though of a quality similar to that of the pardoning function vested In the President by the Constitution, is different from and Inferior to the same in effect and scope. That is a plenary power to pardon the offence and the offender, by the exercise of which the stigma of the conviction is done away with, the penalties and disabilities 716 incident thereto or to the sentence are removed, and the offender is personally completely rehabilitated in law." But the power given by the Article is a power only to "pardon" a "punishment," that is to say a ™ The early Order books in the A. G. O. contain formal pardons Issued by President Monroe to soldiers, under sentence of death for desertion or mutiny, dated March 17, 1817, and March 5, Oct. 13, and Dec. 22, 1818. ™ The President, in remitting punishments, may act through the Secretary of War, in Orders emanating from the War Department, as he may in approving or confirming sentences. See ante — "Art. 106." ""A formal pardon was Issued to Fitz John Porter, formerly Maj. Gen., on May 4, 1882 ; but this In terms only remitted the punishment, I. e. the continuing punishment of disqualification for ofllce adjudged by sentence of court-martial in January, 1863. <^ Jones V. V. S., 137 U. S., 202 ; Jenkins v. Collard, 145 U. S., 547 ; U. S. v. Klein, 13 Wallace, 141, 147; Armstrong v. U. S., Id., 154; Pargoud v. V. S., Id., 156; Cooley, Frlns. Const. Law, 100; Do., Const. Lim., 139. And see the very Interesting opinion on this subject of Solicitor General Taft in 20 Oplns., 330. M See instances cited in Ch. XVI — " Plea of Pardon," p. 270 and note. " In military cases, the Instances In which the pardoning power has been exercised before trial have generally been of the class known as constructive pavdons. See post — " Constructive Pardon ; " also " Plea of Pardon " in Ch. XVI, p. 270. M " The pardon makes him, as It were, a new man, and gives him a new capacity and credit." 2 Hawkins, c. 37, s. 48. And see Eiv parte Garland, 4 Wallace, 380; U. S. V, Klein, 13 Id., 128 ; OBt»m v. V. S., 91 U. S., 474 ; Knote v. V- S., 85 U. S., 149. 468 MILITARY LAW AND PKECEDENTS. power of remission, ■" and if the word remit — the term properly describing the pardoning of a punishment — ^were substituted for the word pardon in the Article, its phraseology would be less antiquated" and more precise. The exercise of this limited power simply relieves the accused in whole or in part from the punishment; the guilt of the offender as found, and the penal lia- bilities consequent thereupon, remaining unaffected in law. Thus a mere re- mission of the punishment adjudged a deserter will not relieve him from the civil disqualification attached by statute to his conviction;" nor, in a case contemplated by Art. 100, will such a remission relieve an officer from the consequence, incident upon his conviction and sentence, of not being asso- ciated with by other officers: in either case a pardon of the offender by the President will be necessary to restore the forfeited right. So — it has been held by the Attorney General" — a remission of a continuing sentence of sus- pension will not restore' to the officer the relative rank which he has mean- while lost, while a fuU pardon may have that effect. The " power to pardon " accorded to commanders is thus seen to be quite distinct from the pardoning power of the President, which, devolved upon him alone by the Constitution, could not indeed be delegated by Congress to any other official or person. This power in fact, and also that to " mitigate," given by Art. 112, are not modes or measures of the constitutional function, but 717 powers attached as incidents to the power to order courts and approve and execute their sentences, being simply forms of discretion vested in the reviewing officer to reduce or dispense with, when deemed by him just or expedient, the punishment or a punishment awarded by the court. ATTEIBUTES OF THE POWER OE PAKDON OB BEMISSION — 1. It is co-eztensive with the punishment." Assimilated in a measure to pardon proper, remission has, within its scope, some corresponding attributes. Thus its exercise Is not restricted to -the time and occasion of the formal approval of the sentence by the reviewing authority, but may be resorted to at any stage of the execution of the punishment, and so long as any portion of the same remains unexecuted." What remains, for example, of a term of im- prisonment of a soldier may be remitted, at aiTy time before its expiration, by the commander who originally ordered the court and approved the sentence, or by his successor meanwhile in the command, provided of course the soldier Is still confined within the command. So, a continuing punishment — as one of disqualification to hold office, or of a loss of files — may be remitted at any time prior to the completion of its term." The President has frequently par- doned military punishments pending the period of their enforcement, and in repeated instances at or near the end of the late war remitted the unexpired portions of the sentences of a large class of offenders, in and by one and the same General Order." The same course was also pursued by department and ""As to the distinction between remission and pardon, compare Perkins v. Stevens 24 Plclj., 277; Lee v. Murpliy, 22 Grat., 799; 1 Bishop, C. L. § 763 ; 2 Opins At' Gen., 329 ; 5 Id., 588 ; 8 Id., 283-4. "•The term has been derived without change from the early codes of 1775 and 1776. "As those imposed, upon deserters by Sees. 1996, 1998, Rev. Sts. So forfeitures by operation of law remain unaffected — as those attaching by the operation of Sec 1265 Rev. Sts., apd pars. 128 and 1514 Army Regs. And see 18 Opins. At Gen 427 ™ 17 Opins., 31 ; 20 Id., 243. » " Coextensive with the offence and the punishment." Rawle on the Const 178 "The counter view, as expressed in 1888 by Att}'. Gen. Garland, (19 Opins 106) was not accepted by the Secretary of War but dissented from, as indicated by the Army Regulations of 1889, par. 1044, and by the uniform practice. "1 12 Opins. At. Gen., 547 ; 17 Id., 303, 656. "As by G. C. M. 0, S8 of 1865; Do. 46 of 1866; G. 0. 19, Mid. Mil. Dept.. 1866. MILITARY LAW AND PREOEDBKTTS. 469 army commanders."' At present military reviewing officers are authorized to remit the unexpired terms of soldiers confined within their commands, though such soldiers have been dishonorably discharged under their sen- 718 tences ; " except that in cases of convicts confined at the Military Prison at Leavenworth, or, (after discharge,) in penitentiaries,"' the remissions have been ordered by the President through the Secretary of War. 2. It may be full or partial. That is to say, where a sentence includes sev- eral punishments, the President, or a commander thereto authorized by Art. 112, may remit all, or one or more ; and a remission of one will not affect the authority to execute, or Interrupt the execution of, another or the others.*" So a part of a punishment may be remitted at one time and another part at a subsequent time." A full and unqualified remission— it may be added — of a particular punishment will operate to remit an additional punishment the execution of which Is made dependent upon the execution of the other. Thus a remission of a term, or the unexecuted portion of the term, of an imprisonment, will remit a penalty of dishonorable discharge directed by the sentence to take effect at the end of the full term. 4. It may be unqualified or conditional. That a pardon or remission may be conditional, and that the condition may be precedent or sulisequent, is settled law.™ During the period especially of the late war, pardons on express conditions, granted, in Orders, both by the President and by army commanders, were not unfrequent in military cases. Thus sentences were remitted on the conditions precedent — that the accused re-enUsted, or enlisted " during the war ;" °° that he paid back certain bounty money received by him ; ™ that he paid a fine, or part of a fine imposed by his sentence ; ' or gave satisfac- 719 tory security for its payment ; ° that he turned over the company fund in his hands ; ' that he made good an amount found to have been em- bezzled by him ; * that he reimbursed the expenses incurred in his apprehension as a deserter;' or the value of public property, (as a horse, carbine, &c.,) ap- propriated in deserting," or that he made good the time lost by his absence ; ' that he allotted certain pay sentenced to be forfeited, or other pay, to the sup- port of his family.' Similarly sentences of military commissions have been remitted on the condition precedent that the accused took an oath of allegiance and obedience to the laws, or gave bond for his future good behaviour, or both." "In G. O. 8, Mil. Div. of the Tenn., 1865, MaJ. Gen. Thomas remitted the unexpired terms of 245 military prisoners confined in the military prison at Nashville. And see Do. 26, Id., Do. 2, 3, 7, Id., 1866 — in each of which a similar authority was exercised in a large number of cases. •* Circ. No. 3, (H. A.,) 1893. •=Circ. No. 5, (H. A.,) 1888. " Perlsins v. Stevens, 24 Pick., 280. And compare the provision of the Act of Feb. 20, 1863, relating to punishments for civil offences, now incorporated in Sec. 5330. Rev. Sts. " 3 Opins. At. Gen., 418. w 2 Hawk., c. 37, s. 45 ; 4 Black. Com., 401 ; 1 Bishop, C. L. § 760 ; TJ. S. v. Wilson, 7 Peters, 150 ; Ex parte Wells, 18 How., 307 ; Com. v. Haggarty, 4 Brewst., 326 ; 1 Opins, At. Gen., 77, 341, 482 ; 5 Id., 368 ; 6 Id., 405 ; 11 Id., 229 ; 14 Id., 124. " G. O. 3, 6, 104, Dept. of Va. & No. Ga., 1864. Compare 1 Kent, Com., 308. >«" G. O. 184, Dept. of Va. & No. Ca., 1864. 1 G. C. M. O. 428, 640, of 1865. 2 G. C. M. O. 117 of 1864. ' G. C. M. O. 14 of 1868. * G. C. M. O. 228 of 1865. And see Dibbst, 554. 6 G. O. 29, Dept. of the Platte, 1869. • G. O. 32, Dept. of the Platte, 1869. ' G. O. cited in last note. » G. C. M. O. 214 of 1864 ; Do. 503, 668, of 1865. » G C M O 103, 119, 151, 156, 203, 229, 251, 256, 270, 528, of 1865. 470 MILITAEY LAW AITD PRECEDENTS. So, though more rarely, military pardons have been granted oi) express condi- tions subsequent. As where an officer was pardoned on condition of his resign- ing his commission ; " where the sentences of soldiers in confinement were re- mitted on condition that th^ faithfully served their full terms of enlistment ; " where, in certain cases tried by military commission, the sentences were re- mitted on the condition that the party should forthwith quit a certain place or part of the country and remain absent during the war," or that he should en- gage In no tUielt trade, nor aid or have intercourse with the enemy, during the war." 720 Where the pardon is conditional, the condition must be accepted by the beneficiary:" in military cases, the acceptance is generally indicated, not formally, but by his voluntarily submitting to the proceeding or performing the act required as a condition. '° As remarked by the court in a case In Penn- sylvania " — " It lies upon the grantee to perform the condition. If he does not, in case of a condition precedent, the pardon does not take effect ; in case of a condition subsequent, the pardon becomes null; and if the condition is not performed the original sentence remains in full vigor and may be carried Into effect." The condition, whether precedent or subsequent, must be legal, reasonable, and not repugnant to the grant." But, at present, in time of peace, conditional remissions, under Art. 112 ate of most rare occurrence." " See I Opins. At. Gen., 343. " O. O. 46 of 1866. And see G. C. M. O. 94 of 1867 ; G. O. 104, Dept. of Va. & No. Co., 1864 ; G. O. 108, Dept. of the East, 1872, Compare the terms of the offers of amnesty to deserters In G. O. 43 of 1866 ; Do. 102 of 1873. " G. O. 34, Dept. of Washington, 1865. So, it is held in the civil courts that a condi- tion attached to a pardon of a conTict sentenced to Imprisonment, that he leave the State or the country, and do not return during his term or at all. Is a valid condition ; and that if, after accepting the condition, be does return, he may be remanded to prison to serve the sentence. Fiavell's Case, 8 W. & S., 199 ; Com. v. Haggarty, 4 Brew^st., 326 ; People V. Potter, 1 Edmonds, 235 ; Bai parte Loclchart, 1 Disney, 105. " G. C. M. O. 99 of 1865. In Do. 131, Id., the party, sentenced to be imprisoned " to the end of the lebellion," was " enlarged to remain at liberty so long as he does not mis- behave." " " The offender may accept or not at his option." 6 Opins. At. Gen., 405. For " the condition may be more objectionable than the punishment." tl. S. v. Wilson, 7 Peters, 161. And see 6 Opins. At. Gen., 537 ; Lee «. Murphy, 22 Grat., 798. Some form of acceptance indeed is necessary to give effect to any pardon. As the court say in U. S. v. Wilson, ante — "A pardon is a deed to the validity of vrhlch delivery is essential, and delivery is not complete without acceptance." And see In the matter of De Puy, 3 Benedict, 307. "In civil cases the condition is often formally accepted in writing upon the pardon by the beneficiary. In Ex parte Wells, '18 Howard, 307, the form of acceptance was as follows : — " I hereby accept the above and within pardon, with condition annexed." And see the similar form of acceptance in Lee v. Murphy, 22 Grat., 790. " Flavell's Case, 8 W. & S., 199. Or, as the law is stated by Bishop, (1 C. L. § 914) " If the condition of the pardon is precedent, that is if, by its terms, some event is to transpire before it takes effect, its operation is deferred until the event occurs. If the condition is subsequent, the pardon goes into operation Immediately, yet becomes void whenever the condition is brolien." In Eai parte Wells, the law is stated to be that where the condition is not performed, "the party may be brought to the bar and remanded to suffer the punishment to which he was originally sentenced." 'if the conditional pardon has been granted hefore trial, and the condition not performed, the party may be brought to trial for his offence. See Digest, 554. "People V. Jease, 3 Johns. Cas., 335. Flavell's Case, ante; People v. Potter 1 Edmonds, 235 ; Com. v. Haggarty, 4 Brewst., 326. ' " See an Instance of a conditional nUtiaation recognized as legal, under " Mitigation," pott. MILITARY LAW AND PRECEDENTS. 471 721 BY WHOM THE POWESS MAT BE EXEBCISEB TJNDKR THE llSth ABTICLE. The Article describes In general terms the persons by whom the powers specified may be exercised, by the words — " Every officer who Is authorized to order a general court-martial." A better designation — one more In haMnony with the other provisions relating to the action of the reviewing authority— would be: "Any officer authorized to execute the sentence of a court-martial." As expressed, the Article Includes — (1) the officers author- ized by Arts. 72f, 73, 81 and 82, and Sec. 1326, Rev. Sts., to order certain courts, and who have ordered such courts, which have adjudged sentences; (2) the successors in command of such officers or " commanding for the time being " — a class already defined in construing Arts. 104 and 109. An officer thus authorized must of course exercise personally the powers conferred: he cannot delegate the same — to an inferior commander or staff officer — any more than he may delegate the power to order the court or approve Its proceedings. EXECUTION OE BEMISSION. Remission Is pointedly distinguished from pardon proper by the form and manner of Its execution. Thus while a con- stitutional pardon is a deed which takes efEect upon delivery and acceptance," remission is executed by order simply. The remission is an order made In his discretion by the commander, and, like any other mlUtary order, executes Itself, that Is to say is executed upon its promulgation to the party affected. Whether or not he may have applied for the remis^on, no acceptance by him is neces- sary or material. COMMTJTATIOIT. Comrnvtation is conditional pardon. It is pardon granted on the condition subsequent that the party receive and undergo a less 722 severe punishment of a different nature" — a condition which, like all conditions annexed to pardons, must be accepted or the grant will not take effect. In military cases, the acceptance Is general given, not formally, but impliedly by the party's entering upon without objection, and duly under- going, the substituted punishment." Commutation is distinguished from miti- gation, which, as wiU hereafter be noticed, is a reduction of a punishment in degree or quantity only ; the power to mitigate not authorizing the changing of the species of the penalty adjudged. But there are certain punishments not sus- ceptible of being reduced in degree ; consequently where one of these is Imposed by the court, and the same is deemed too severe a penalty to be inflicted upon the accused, who yet, it Is considered, deserves some measure of punishment, the mere power of mitigation Is inadequate for the occasion, and commMtation, or the substitution of a lesser penalty of a different nature, must be resorted "U. S. V. Wilson, 7 Peters, 150. "•The leading adjudged case on the quality of commutation is Ess parte Wells, 18 Howard, 307, with which see Opinion of the Justices, 14 Mass., 472 ; Perkins v. Stevens, 24 Pick., 278 ; Lee v. Murphy, 22 Grat., 789 ; Cooley, Prins. Const. Law, 100 ; — also 5 OplBB. At. Gen., 369, in which is practically overruled an earlier opinion of Mr. Wirt, in 1 Opins., 328, in which commutation is confused with mitigation. It may be added that the phraseology of some of the existing statute law has also tended to confuse the student. Thus, while the Act of July 13, 1866, provided that in time of peace no officer should be dismissed except in pursuance of the sentence of a general court- martial, or " in commutation thereof," using here the proper term, this term, though retained in one port of the Revised Statutes, — Sec. 1229 — has been carelessly changed to " mitigation " In the 99th Art. of war and in Art 36 of the naval code. It may be noted in this connection that the naval code — ^In Arts 54 and 33 — ex- pressly prohibits the commutation of sentences. The provision of the modern British code corresponding to our Art. 112 — Army Act I 57 (ij expressly empowers the reviewing authority to "remit, mitigate or commute" punishments adjudged by sentence of court-martial,— 'a form of conveying the power much to be preferred to that retained in our statute. " See ante as to acceptance of conditional pardons In general. 472 MILITARY LAW AND PKBCEDENTS. to. Death and dismissal, for example, are punishments not admitting of lesser degrees or capable of being mitigated ; they must therefore, when deemed too rigorous, be exchanged or commuted for distinct penalties of minor severity. Thus death may be commuted to dismissal or dishonorable discharge, or, to imprisonment, or to both, — ^indeed to any recognized military penalty or combi- nation of penalties, since any such penalty or combination Is in law less griev- ous than the summum, supplicium of death. So, dismissal may be com- muted to suspension," loss of flies, or other punishment appropriate to 723 an officer and less severe than an absolute and disgraceful separation from the army." And, in a case of an enlisted man, a sentence of dis- honorable discharge or reduction to the ranks may be commuted to a moderate forfeiture of pay. It is to be noted, however, that commutation, though more appropriate to cases of punishments which do not admit of mitigation, is not restricted to these in Its application. It thus may be resorted to in cases where mitigation is permissible and In lieu thereof. Thus a considerable term of Imprisonment, instead of being mitigated to a less term, may be commuted to dishonorable discharge or to a forfeiture of a small amount of pay." Like other conditional pardon, commutation Is, in practice; employed at the time of the approval or confirmation of the sentence or punishment: unlike remission, it Is rarely if ever resorted to at a later stage. Not authorized under Art. 113. The "power to pardon" given by this Article being a power of remission only, and remission consisting simply In the doing away with a punishment, the exercise of the authority to commute would appear to be excluded from the contemplation of the statute. We have seen that commutation Is distinct from mitigation. The conclusion would thus be that a military commander could not legally commute a punishment by the authority of this Article." In this connection there may be some significance In the fact that the Article expressly excepts from the application of the power conferred the punishments of death and dismissal, these being punishments which can be abated by commutation only. In practice, however, com- 724 mutation has not unfrequently been resorted to by military reviewing officers, and there has at yet been no authoritative ruling that such action Is not legitimate. CONSTEUCTIVE PABDON. A party may sometimes be reUeved of pun- ishment by an executive act attaching to him a status Inconsistent with the infliction or continuance of such punishinent." An act of this character oper- " Suspension has Indeed sometimes been regarded as an inferior degree of the punish^ ment of dismissal, and as a penalty to which the latter might therefore be mitigated, (See 4 Opins. At. Gen., 434; 5 Id., 43.) But such view is a mistaken one, dismissal being an absolute and final separation of the person from the military oflk:e and from the army— a status admitting of no degrees. Dismissal is therefore commuted, not miti- gated, when suspension is substituted for It by the pardoning power. ""Dismissal has in a few cases been commuted to reprimand. See instance In G C M. O. 18 of 1868. In cases of Cadets, dismissal and suspension have been commuted by the President to confinement in a Ught prison for one to three months 6 C M O 70 of 1887. In G. C. M. O. 31 of 1889, is a peculiar instance of a commutation by the President of a sentence of dismossal of an officer to— " confinement within such limits as the Secretary of War may pres^ibe and to deprivation of the right to wear the uniform and insignia of his rank in the army for a period of five years " "im -In substituting one distinct punishment for another by commutation, special care is to be taken that the rule forbidding any adding to the punishment by the reviewing officer is not transgressed. icviewiuB " See ruling in Digest^ 131 57. »6 Opins At Gen.. 715. But the mere ordering of an officer under sentence of suspension to attend a court-marUal as u witness, does not operate as such pardon! MILITAEY LAW AND PEECEDEITTS. 4 73 ites as an implied, or, as It Is usually designated, constructive pardon." Thus the appointment to a new office of an officer in arrest under charges will operate to pardon constructively the offence with which he is accused."" So, the promotion of an officer under sentence of s^uspension from rank, or the replacing In his proper command, by authority competent to remit the sentence, of an officer under sentence of suspensio.i from command, will constructively pardon and terminate the suspension." So, the ordering on active duty of a soldier under a sentence of confinement will have the same effect as a formal remission of the punishment ; " and it will remit also any other punishment the execution of which is made dependent upon that of the confinement — as a dishonorable discharge directed by the sentence to be executed at the end of the confinement. Similarly, a constructive remission of a sentence of con- finement of a soldier is effected where, pending the execution of a confinement adjudged to be suffered during the remainder of his term of enlistment, a discharge fropi the service is given him by competent authority." 725 The subject of constructive pardon, as granted prior to trial, has already been considered under the title of the Plea of Pardon, in Chap- ter XVII. niTIGATIOIT. This, which, as already observed, is distinct from and not included in the pardoning power,*" differs from commutation in that It consists, not in changing the nature or quality of the punishment or in substituting a different punishment for it, but simply in reducing it in quantity." Thus an imprisonment or suspension adjudged for a certain term is mitigated by reduc- ing It to one for a less term ; " a fine or forfeiture of a certain amount, by reducing It to one of a less amount ; "^ a loss of a certain number of files, by "In Sir Walter Baleigb's Case, (Cro. Jac, 496; Frendergaet, 246,) it was held that had his offence been less than treason, — had it been only felony, — ^hls being released from imprisonment while awaiting the execution of his sentence, and placed In command of an army and sent on a foreign expedition, would have operated as an Implied pardon. » 8 Oplns. At. Gen., 237. " 4 Opins. At. Gen., 8 ; 6 Id., 123, 715 ; McNaghten, 22 ; Digbst, 732. But allowing an officer under sentence of suspension from rank to turn over property, &c., with a ' view to settling his accounts as acting quartermaster, has been held not to have any such effect. Digest, 554. " See De Hart, 249 ; Ben^t, 168 ; G. O. 98, Dept. of the Bast, 1868. "This ruling of the Judge Advocate General was approved by the Secretary of War, and communicated to department commanders, from the A. G. O., under date of Aug. 12, 1871. See the same, (published as a decision of the Secretary,) In G. O. 72, Dept. of Dakota, 1871 ; G. C. M. O. 118, Dept. of the Mo., 1871 ; Clrc, No. 15, Dept. of Texas, 1871. ■^ That the President may exercise the power of mitigation only in the capacity of re- viewing officer, see note ante, citing 2 Opins. At. Gen., 289 ; Digest, 606-7. as •• rpjig right of mitigatmff only extends, in my opinion, to lessening the degree of punishment in the same species prescribed, and does not Imply any authority to change the nature or quality of It altogether." Washington to Gates, Feb. 14, 1778. Sparks' Writings of Washington, vol. 5, p. 236. And see Digest, 131 ; Circ. 2 (H. A.) of 1885 ; also 1 Oplns. At. Gen., 328, 331 ; 4 Id., 433, 446. These Opins., however, so far as they relate to commutation, were corrected by 5 Oplns., 369. [See note ante.'] »In the late war. Imprisonments for life or for very long periods were not unfre- quently mitigated to imprisonment " during the rebellion." "A general forfeiture of pay. Imposed in connection with confinement, has some- times been mitigated by directing that a small sum, as $10 or $20, or " so much of that amount as may be found due the soldier on the settlement of his account," he retained and paid him on his discharge from confinement. See, for example, G. C. M. O. 1, 4, 8, 10 13 Dept. of the South, 1881. The object of this form of mitigation is to provide against the party's being discharged in a destitute condition; praetioallv, it is un- certain and scarcely to be recommended in general. 474 MILITAEY LAW AND PKBCEDENTS. reducing It to one of a less number." But dishonorable discharge, or forfeiture of pay, cannot, by mitigation, be substituted for confinement, or vice versa. 726 The punishment as mitigated must be ejusdem generis with original ; that is to say must be a part of the very punishment Imposed by the court." Pardon and mitigation, though separate functions, may concur In action. Thus where a sentence Imposes Imprisonment and forfeiture, the reviewing authority may at the same time remit the imprisonment and mitigate the for- feiture, or vice versa. A mitigation must of course be preceded by an approval or confirmation, in whole or In part, of the sentence, since, if tlie sentence is wholly disapproved, there remains nothing to be mitigated. The punishment at least which Is miti- gated must have been approved, although other punishments contained In the same sentence may have been disapproved. But mitigation, unlll^e remission, (and like commutation,) is rarely if ever employed at a stage subsequent to the approval or confirmation, but, in practice, is contemporaneous with and a part of the same action. As already noticed, the power conferred by Art. 112 Is to mitigate, &c., a puriishment, not the sentence. So, where a sentence contains several punish- ments, action taken thereon which detracts from the severity of the sentence In the aggregate but does not specifically reduce any punishment as such, Is not a legal exercise of the power of mitigation. Thus where a court-martial sentenced a soldier to be dishonorably discharged and then Imprisoned for a certain term, and the reviewing officer directed that the discharge be postponed till after the Imprisonment, it was held by the Judge Advocate General that this action was not legal mitigation and was unauthorized.™ A case Illustrat- ing the same point and also the principle that an adjudged punishment cannot be added to, was that of a naval officer in which It was held by the Atty. General that the President could not legally mitigate a sentence of five years' suspension from rank to one of six months' suspension with forfeiture of pay for the same period, although by such action the sentence would as a whole be rendered less severe." 727 So, it has been held. In a case of an enlisted man, that a punishment of a term of confinement without hard labor could not legally be miti- gated to a shorter term with hard labor. Nor, in such a case, could a mitiga- tion legally have the effect of causing a punishment to exceed the established maximum. So, a punishment in itself illegal cannot of course be mitigated. Thus a confinement in a penitentiary, not authorized by Art. 97, is not sus- ceptible of mitigation to confinement in a military prison. A conditional mitigation has been recognized as legal in a case where a soldier, sentenced to a term of confinement, was allowed, by way of mitigation, a credit of his " guard-house time," (i. e. time spent awaiting sentence,) on the condition subsequent of continuous good conduct to the- end of his term. GROUNDS OP PARDON OR MITIGATION. The subject may well be illustrated by noting here some of the principal grounds upon which the discre- " Or a public reprimand to a private. G. 0. 31, Dept. of the East, 1868. So, a sentence of Imprisonment for three years In a penitentiary has been held to be " mitigable to an imprisonment for two years In a military prison." Digest, 131. So, one year in a penitentiary to one year in the Military Prison. G. C. M. O. 37, Dept. of the East 1893 " See 1 Opins. At. Gen., 327 ; 4 Id., 434, 447. =» See this opinion published as approved by the Secretary of War in G. O. 71 of 1875, and incorporated in par. 1031, Army Regs. "i Oplns. At. Gen., 444. And see 5 Id., 46. Action which diminished the severity of the sentence as a whole, by mitigating one punishment and increasing another, would as to the latter proceeding, be Illegal and inoperative. MILITAEY LAW AND PRECEDBITTS. 475 tlon to " pardon or mitigate " has been, in practice, exercised under the Article. Among these, which are as varied as the circumstances of the different cases tried, are the following: — ^That the accused had been formally recommended to clemency by members of the court; that his previous general character or conduct had been exemplary ; that his record in war or Indian hostilities had been good; that he had received a wound in battle or a certificate of merit; that the war services of his father or family had been distinguished; that he had behaved with gallantry before the enemy since the commission of his offence ; that he had been required to take part or had voluntarily taken part in an engagement while under arrest ; that he had been held an unreasonable time in arrest or confinement before trial, or while awaiting action on his sen- tence; that he had already been subjected to a disciplinary punishment by his commander; that he had been punished by the civil authorities for the civil offence involved in his act; that he had never had read to him, or been informed of, the Articles of war; that he had been but a short time in the United States, or had but an imperfect knowledge of the English language; that he was a recruit or unusually young and inexperienced ; that he had been required to perform an unreasonable proportion of an onerous duty; that he had been improperly put on duty when under the influence of liquor; that, as a deserter, he had voluntarily returned or surrendered himself; that 728 his offence had been induced in part by the harsh treatment or unjusti- fiable conduct of a superior, or had been attended by special circumstances of provocation or extenuation to which the court had not given sufficient weight, or — the punishment being mandatory — could not legally allow to affect the sentence; that his health was such that he could not safely undergo the con- finement adjudged; that his conduct had been good in confinement; that he had become morally reformed ; that a remission of his sentence had been asked for by civil officials or other citizens of high standing ; that he had testified fully and honestly as a material witness for the government on another trial. In cases of officers the more usual grounds have been that their military record, especially in war, has been distinguished, or their public services valuable; that they have borne a high personal character; that their offences were not apparently actuated by a fraudulent or criminal intent, or wilful and deliberate design; that they had made good to the United States or to individuals the losses occasioned by their misconduct ; that they were wholly unable to satisfy a fine imposed by the sentence; that the payment of a forfeiture adjudged would impoverish their families, &c. These and similar circumstances, while, (unless connected with the merits of the case,) not such as legitimately to affect the judgment of the court, may, especially when two or more exist in combination, properly be taken into consideration by the Reviewing Officer in determining how much of the sentence it may be just or expedient to execute." VIII. FORMULATING OF ACTION, AND PROMULGATION. STATEMENT OP APPROVAL, &c. It is directed in the Army 729 Regulations, par. 1041, that the reviewing authority " shall state at the " See Chapter XXI — " Principles governing the imposing of discretionary sentences." In a case in G. C. M. O. 103, Hdqrs. of Army, 1885, in which the court had added to its sentence the following — " The court is thus lenient in view of faithful service hefore and after desertion and the good character of the accused," it was remarlted as follows by Gen. Sheridan : " The Lieutenant General is of opinion that the better practice is for a court-martial to award punishment appropriate to the offence established, leaving It to the reviewing authority, in the exercise of his vested powers, to talte into con- sideration previous good character." 476 MILITAKY LAW AND PRECEDENTS. end of the proceedings in each case his decision and orders thereon; "but no form for the statement of the action of such authority is prescribed in the military code." Usage, however, has indicated a form for the pui^ose which is in general substantially followed. This form, (given in the Appendix,) consists of an official statement, (with a proper heading, designating the head- quarters, &c., place and date,) to the effect that the proceedings, findings and sentence in the case of (naming the accused) are approved or Oisapproved. in whole or in part; or that the proceedings and findings are approved m whole or in part, and the sentence, punishment or punishments, is or are remitted, commuted, or mitigated, as the case may be ; with a direction as to the disposi- tion of the prisoner in case of conviction, designation of place of confinement if imprisonment be adjudged, &c. Where the sentence is one required to be executed at once in connection with the approval, as is usual in a case of a reprimand, the formal administering of the reprimand is added. The state- ment, (which, where no more cases are to be tried, generally concludes with an order dissolving the court,) is subscribed by the reviewing officer in his official capacity. Where the sentence is one requiring the action of the President, (or otjier superior,) the statement, after the formal approval, adds— "and the proceed- ings are hereby forwarded for the action of the President," &c., qr In terms to such efEect. " OBDEB OP SUSPENSION." Where the action authorized by Art. Ill is resorted to, the statement, after the approval, proceeds to add what is referred to in the Article as the " order of suspension," which Is simply a declaration to the efEect that the execution of the sentence is suspended until the pleasure of the President shall be loiown, and that the proceedings are accordingly transmitted to him for his action, under the Article. STATEMENT OE CONFIRMATION, &c. The action of the President, (or superior commander,) as confirming authority, is simply a formal statement to the efifect that the sentence in the case is confirmed and will be executed ; or that It is disapproved, remitted, or, in a manner specified, commuted or mitigated, as the case may be; the statement being authenticated by the proper 730 official signature. As above remarked, the action, here, of the President may legally be attested by the Secretary of War : it is the present prac- tice, however, for the President to subscribe the same in person." ACTION TO BE ATTACHED TO BECOBD. The action of the original reviewing officer is properly written upon a blank page at the end of the record or upon a sheet attached thereto, below or after the sentence, adjourn- ment, or other final proceeding of the court in the case." The action of the President, &c., if any, is properly written below or after that of the original reviewer, or upon a subsequent attached sheet. ACCOMPANYING BEMABKS. To the formal action or orders thus indi- cated, the commander or President may, if he thinks proper, add such reflections upon the proceedings or conclusions of the court, the conduct of the prosecu- tion or defence, the make-up of the record, &c., as the facts may warrant. Such comments have the more frequently been resorted' to where the finding, " See Vanderheyden v. Young, 11 J^ohns., 150. •" Ante — " Action of the President as Confirming Authority : Art. 106." " It is to be noted that the action taken upon the proceedings of inter%or coturta is often less detailed than here described, consisting sometimes in the mere signing, by the regimental, post, &c., commander, of the single word "Approved," written at the foot or in the margin of the record. Usually^ however — and more properly — a formula, similar to that employed for the proceedings of general courts, but briefer and simpler. Is adopted. MILITABY LAW AND PEECEDENTS. 477 sentence, &c., has been in whole or in part disapproved: the same, however, have been not unusual where it has upon the whole been deemed expedient that the proceedings or sentence should be approved. In some instances the remarks have taken the form of emphatic stricture or censure. Thus courts have been severely criticised for acquitting where, in the opinion of the re- viewing oflScer, the testimony called for a conviction ;" for imposing sen- 731 tences regarded by him as Inadequate to the ofEences found ;" for findings held by him to be unwarranted by the proof;" for error? In admitting or rejecting evidence;" for ignorance or neglect inducing grave irregularities in the proceedings or form of the record ; " for the personal misbehaviour of the members," &c. The conduct not only of the accused" but also of the judge advocate, prosecutor, or officer preferring the charges, has also been reflected upon," as well as that ot superiors of the accused whose 732 acts, deemed illegal or improper, have been regarded as having induced or aggravated the offences committed," or that of other officers implicated with the accused or otherwise culpable." In rare cases even a subordinate " See G. O. 81 of 1822, Do. 23 of 1824 ; Do. 4 of 1843 ; Do. 2 of 1844 ; Do. 6 of 1858 ; Do. 250, 385, of 1863 ; Do. 74, Army of the Potomac, 1862 ; G. C. M. O. 112, Dept. of the Bast, 1870. « See G. O. 64, 68, of 1843 ; Do. 39 of 1845 ; G. C. M. O. 88 of 1864 ; Do. 123 of 1865 ; G. O. 85, Dept. of the Gulf, 1862 ; Do. 21, Dept. of the Tenn., 1863 ; Do. 22, Dept. of the Platte, 1867; G. C. M. O. 50, 80, Dept. of the Mo., 1871; Do. 37 Id., 1875. In G. O. 78, Dept. of So. Ca., 1865, the action of the court is commented upon as incon- sistent In its adjudging sentences differing very considerably in severity in cases " entirely similar." " See G. O. 81 of 1822 ; G. C. M. 0. 88 of 1864 ; Do. 123 of 1865. "See G. d. 23 of 1824; Do. 4 of 1843; Do. 1 of 1861; Do. 185, Dept. of the Ohio, 1863; Do. 51, Dept. of the East, 1864; G. C. M. O. 11, Army of the Potomac, 1864. « See G. O. 185, Dept. of the Ohio, 1883 ; Do. 64, 68, Id., 1864 ; Do. -29, Northern Dept., 1864 ; Do. 51, Dept. of the East, 1864 ; Do. 51, Dept. of the South, 1864 ; Do. 4, Dept. of N. Mexico, 1864; Do. 29, Twenty-fifth Army Corps, 1865; Do. 25, Dept. of So. Ca., 1866 ; Do. 45, Dept. of the Cumberland, 1867 ; Do. 33, Dept. of Arizona, 1871 ; Do. 28, Id., 1876 ; G. C. M. O. 8, Dept. of Miss., 1865. In G. O. 64, Dept. of the OhiOi 1864, Gen. Schofleld, in ordering that the members and judge advocate of a certain court, (whose neglect and carelessness had been exceptional,) "be and they are hereby repri- manded," adds : " The Asst Adj. Genl. of the Department is hereby cautioned against patting any ofScer of this court on any Important court-martial duty. Of the entire number of cases tried by this court, at least nine-tenths have been disapproved for fatal Irregularities." "In G. C. M. 0. 123 of 1865, the Secretary of War, in commenting upon the findings as not In conformity with the evidence, and upon the sentence as Inadequate, adds : " The revlewinig officer also reports that the members of the court were guilty of conduct prejudicial to good order and military discipline in drinking with the accused at various times, and holding private conversations with his counsel, and of other irregularities," — and he thereupon proceeds to summarily dismiss all the members of the court, as well as the accused, from the service. «> In a recent G. C. M. O., Dept. of Dakota, (134 of 1884,) Gen. Terry reflects severely upon an accused officer for taking advantage of the privilege allowed to a person on trial, by assailing and Insulting his superior officer both In his cross-examination of the latter as a witness and in his statement to the court. »iln reviewing a case in G. O. 86, Dept. of the Mo., 1867, Gen. Hancock remarks, generally : " There being no evidence shown by the record to sustain any one of the charges or specifications, the case has the appearance of a. malicious prosecution to gratify personal resentment. To prefer accusations which cannot be maintained la highly injurious to the service and reflects discredit upon those who prefer them ; and if upon trial the charges are found to be groundless, the officer preferring them should be held accountable, and be tried himself for preferring malicious charges." And see G O 42 of 1851 ; Do. 239 of 1864 ; Do. 47, Dept. of the Cumberland, 1867. '" See G. 0. 62 of 1863 ; Do. 22, Dept. of Dakota, 1868 ; Do. 25, Id., 1873 ; G. C. M. O. 5, 38, Dept. of Texas, 1873 ; Do. 43, Id., 1875. « Q. O. 39, 41, 46, of 1835. And see Lieut. Jno. Mahon's Case. Simmons i 61. 478 MILITABY LAW AND PRECEDENTS. commander who has acted upon the proceedings has been censured." Observa- tions, suggested by the evidence, upon matters affecting discipline or other interest of the service, have sometimes also been promulgated." In this connection, it may be said that where the subject of the unfavorable criticism is an error capable of being corrected by the return of the proceedings to the court for the purpose, it is but just that this course should first be pur- sued. Further, the reviewing authority, if ha deems it his duty to indulge in reflections such as above instanced, should in general, where practicable, confine himself to comments upon facts, and, rather than resort to direct strictures upon individuals, should prefer or cause to be preferred against them formal charges. Such strictures, however, are in some cases quite legitimate, and cannot be avoided: in such cases if the party reflected upon demands a trial by court-martial for the misconduct imputed, his application cannot in general fairly be denied. 733 OBDER OF PKOMTJLGATIOIT. This is the formal written or printed General, (or Special,) Order, in and by which, by the invariable usage of the service, the final reviewing authority publicly announces his action, (and that of a previous reviewing oflBcer, if any,) upon the proceedings of the court in a case tried. It consists simply of a re-statement of such action, (with the accompanying remarks, if any,) as originally written and subscribed in or upon the record as above indicated, preceded by the details proper and sufli- cient to identify the particular case, vix. a designation of the court, and a recital of the charges and specifications,™ the pleas, (including special pleas,) the findings, and the sentence in case of conviction ; the whole being hcsaded by the name of the Headquarters from which issued, the date of issue, (which should preferably be identical with that of the original action.") and the num- ber of the Order in the current series. Where the record has been returned to the court for correction, this fact, together with the procedure upon the revi- sion, is sometimes set forth, but such mention is in general neither necessary nor desirable. The Order is mainly useful — 1st, as a publication to the Army of the result of the trial, and of the opinion of the commanding general, and, (where H^ action is required,) that of the President, upon the proceedings; 2d, as forming a permanent and convenient memorandum of the more material particulars of the case, for general reference and use in evidence, or for exhibiting pre- vious convictions; 3d, as constituting actual or presumptive legal notice to the accused of the operative sentence or other conclusion of the court, and of the approval, disapproval', remission or mitigation by the reviewing authority. " In G. O. 25, Dept of So. Ca., 1886, Gen. Sickles, In remarking upon fatal errors appearing in a. considerable number of cases, censures the original reviewing officer — a District commander — for repeatedly permitting records containing errors to pass through his hands, without having theifa returned for correction to the court, and thereupon proceeds to revoke an existing order hy which the District command had been designated as a " separate brigade," — thus divesting the commander of the power to convene general courts. "> See cases in James, 500, 501, 694, 831, 832. And see unfavorable comments on the course of official business. In Gen. Talcott's case, G. 0. 36 of 1851. In G. O. 43, Dept. of Cal., 1867, Gen. McDowell, In observing that several soldiers belonging to the same command, in pleading guilty to the charge of desertion, " allege, as the reason for com- mitting it, that the comfort of the soldier Is neglected, that the- food is insufficient, that an undue proportion of the ration is sold for the purpose of forming a company fund, and that reports that the rations were made away with were not attended to," — orders that the District commander "will immediately investigate the matters con- tained In these allegations, and will report the result to these Headquarters." "The specifications are sometimes omitted, but should always preferably he inserted except where they are too numerous or extended, or set forth grossly Indecent language or matter otherwise improper to be published. " That the dates should be the same Is now directed In par. 1026, A. E, MrLITAKY LAW AND PRECEDENTS. 479 As already observed, upon the subject of the execution of punishments, the day upon which the order promulgating the approved sentence is published to the command, or served upon and made known to the accused In person," 734 is that on and from which a sentence of dismissal, disqualification, sus- pension, loss of files, or reduction, in general takes efEect, and the rights of the party to pay, rank, &c., are divested or affected. 4th. It is to be added that in cases in which imprisonment is adjudged, the date of the Order of promulgation fixes, as heretofore noticed," the date at and from which the term of the imprisonment begins to be executed in law. The Order, however, though thus important, is not essential to the execution of the sentence or otherwise, and may be wholly dispensed with." This for the reason that the same is not an original proceeding and contains no original matter, its details being merely copies of the original particulars contained in the record and of the action taken upon the case. Not being original it is not signed as such; the signature of an assistant adjutant general or other staff officer, sometimes appended to it, being simply for the purpose of authenticating it as a true copy. As a form merely of publication, the Order, if found to contain an error or errors, may be withdrawn or cancelled and a new and correct form substi- tuted, or it may be amended by a supplementary Order specifying and rectifying the mistake. SPECIAL ACTION IN CASE OF ACQUITTAL. In such a case, if there is likely to be any material delay in the issuing of the Order promulgating the proceedings, the commander properly may, and in practice not unfrequently does, direct that the accused be forthwith released from arrest and restored to duty. In the absence of such anticipatory action, an officer or soldier fully exculpated on his trial might be held in undeserved restraint, and subjected to unnecessary suffering or humiliation, for a considerable period, while await- ing the publication of the formal Order." IX. DISPOSITION OF RECORDS. 735 TRANSMITTAL OF RECORDS OF GENERAL COURTS. Par. 985 of the Army Regulations directs that—" the original proceedings of all general courts-martial," &c., " which require the confirmation of the President, but which have not been appointed by him, will be forwarded to the Judge Advocate General," and that " the proceedings of all courts appointed by the President will be sent direct to the Secretary of War." The last duty of the military reviewing officer, after fully acting upon the proceedings of a general court, thus is to forward the record with reasonable promptitude to Washing- ton, as here directed. The transmittal is by mail or express: in cases of unusual public importance the records have sometimes been conveyed by the judge advocate of the court or other officer detailed for the purpose. A copy of the order of promulgation, if any, is properly transmitted with the record. ^Not only where the accused Is sick, a prisoner, &c., and cannot tie present at the publication of the Order to the command, but in all cases, a copy of the Order should be furnished to him personally. "» Chapter XX — " Imprisonment." ^Tn any event — whether or whenever the proceedings are formally promulgated — the accused should be notified of the result as promptly as is reasonably practicable. Note remarks of Samuel Warren, (Letter to the Queen on a late Court-Martial, p. 254-5,) on the cruelty of keeping an accused long in ignorance of the result of his trial. "In an Act of the Confederate States Congress, of June 14, 1864, relating to the proceedings of military courts, it is provided that, in cases of acquittals, "the findings of the court shall he announced immediately, and the person so tried and acquitted, if a soldier, shall te released from arrest and. returned to duty; amd if other than a soldier, discharged from custody, toithout awaiting the examination or report of the reviewing officer," CHAPTEE XXII. INFEBIOB. COTJBTS-MAHTIAL, AND MILITARY BOARDS. INFERIOR COURTS-MARTIAi. 736 There are known to our law three species of Inferior Courts-Martial, which will be considered in this Chapter under the titles respectively of— I. Regimental and Garrison Courts-Martial. II. The Field Officer's Court. III. The Summary Court. I. Regimental and Gabbison Cotjets-Mabtial. THE LAW ON THE SUBJECT. Courts for inferior commands have been authorized by our military codes from the beginning. The substance of the earlier Articles still remains ; the variations which the law has undergone will be noticed as we proceed. The existing statutory law relating to the courts under this Title, and to the taking of action upon their sentences, is contained in Arts. 81 to 83, Art. 84, Art. 104, Art. 109, and Art, 112— as follows : " Abt. 81. Every offlcer commanding a regiment or corps shall, subject to the provision of article eighty, be competent to appoint, for his own regiment or corps, courts^martial, consisting of three officers, to try offences not capital. "Abt. 82. Every officer commanding a garrison, fort, or other place, where the troops consist of different corps, shall, subject to the provisions of article eighty, be competent to appoint, for such garrison or other place, courts-martial, consisting of three officers, to try offences not capital. " Abt. 83. Regimental and garrison courts-martial, and field officers, detailed to try offenders, shall not have power -to try capital cases or commissioned 737 officers, or to inflict a fine exceeding one month's pay, or to imprison or put to hard labor any non-commissioned officer or soldier for a longer time than one month.^ "Art. 84. The oath administered to the members of a general court-martial 'shall also be taken by all members of regimental and garrison courts- martial.' * * * " Art. 104. No sentence of a court-martial shall be carried into execution until the same shall have been approved by the officer ordering the court, or by the officer commanding for the time being. " Art. 109. All sentences of a court-martial may be confirmed and carried into execution by the officer ordering the court, or by the officer commanding for the time being. * * * " Art. 112. * » • 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." " The naval courta-martial are but two — the " General " and " Summary." As to the British courts-martial, other than General, viz., the District, Regimental, Field General, and Summary — see Army Act, a, 47, 48, 40, 55. 480 militaey law and pkecedents. 481 The province and function of a Regimental Court, when acting not as a court but in quite a distinct capacity under the provisions of Art. 30, will be separately considered in Chapter XXV. The law of Regimental and Garrison Courts-Martial, as now established, will be presented under the following heads: L Constitution; 2. Composition; 3. Jurisdiction ; 4. Power of Punishment ; 5. Procedure ; 6. Action upon the Pro- ceedings ; 7. Disposition of Records. CONSTITTTTION. Arts. 81 and 82 authorize the convening of Inferior courts by three sorts of commanding officers: — Commanders of Regiments; Commanders of " Corps ; " and Commanders of garrisons, forts, or other places, " where the troops consist of different corps." The courts convened under Art. 81 are commonly distinguished as "Regimental," and those convened under Art. 82 as " Garrison " courts : regimental courts proper, however, are those ordered by the flrst-named commanders only. Commanders of regiments. The " officer commanding a regiment," referred to In Art. 81, Is the colonel, or other officer in command of the same 738 whatever be his rank. But he must be In the actual command of the regiment (m such, and competent to Issue orders to it as a body. The command must subsist as a regimental organization ; if companies are de- tached so that no officer properly commands it as a regiment, a regimental court cannot legally be ordered In or for It under Art. 81. Commanders of corps. The term " corps " may have different significations in different connections. As employed in Art. 81, it Is deemed to signify a separate Integral portion of the army, (other than a regiment,') "organized by law with a head and members." It must be complete within and of Itself, not a body made up of detachments from different commands temporarily act- ing together.' Further, it must contain not only a force of soldiers enlisted for or Incorporated in It, but also officers commissioned In or for it as such who may compose the court contemplated by the Article. The Corps of En- gineers, (including the engineer battalion,) as organized under Sees. 1094 and 1151, Rev. Sts., completely answers this description, and the Chief of En^neers is authorized to convene a court as a commander of a " corps " In the sense of the Article. The same has been held in regard to the Chief of Ordnance, in view of his separate command of officers and enlisted men authorized and organized under Sees. 1094, 1159 and 1162, Rev. Sts. So, the Signal Corps, as constituted, under existing law, of both officers and enlisted men under the command of the Chief Signal Officer, Is properly such a corps as here con- templated. On the other hand, the Corps of Cadets of the Military Academy Is not regarded as a " corps " within the meaning of Art. 81, because It com- prises no commissioned officers of the army and thus no material out of which the commandant could compose a court for It as a " corps." The Superintendent of course, as commander of the post of West Point, where the force always con- sists of " different corps " In the sense of Art. 82, may convene garrison courts for the trial as well of cadets as of the enlisted men of the army on duty at the post. 739 " Corps " courts, as such, even when clearly authorized, are rarely resorted to in our practice ; general courts, or — where le^Uy convenable — garrison courts, being commonly employed Instead. • The Article distinguishes It in terms from a regiment. So It may he regarded as dlstlnglished from any component of a regiment or multiple of regiments — as a com- pany or a brigade. • See Scott's Military Dictionary — '' Corps." 440593 O - 42 - 31 482 MILITAEY lAW AND PRECEDENTS. Commanders of Garrisons, &c. While Art. 81 authorizes courts for com- mands consisting of a single element, i. e. comprising only officers and men of one and the same organization, Art. 82 provides for the assembling of courts in commands of a composite character. The one Article Is thus the complement of the other. Construction of Art. 82—" Where the troops consist of different corps." The first point to be noticed in construing this Article Is that the term of description— " where the troops consist of different corps," is, according to the weight of authority, to be understood as general, vie. as applying not merely to the words " other place," but also to the words " garrison " and " fort." The original British article relating to inferior courts for mixed commands would seem to have distinguished between commanders of "districts, gar- risons, forts, castles, or barracks," as such, as one class, and commanders of " towns or places where the force was made up of detachments," as a separate class.* The context and punctuation, however, of our own earliest Articles of 1775 and 1776, favor the view that the limitation—" where the troops con- sist of different corps" was intended to apply alike to all the commands previously specified ; ' and though this punctuation was modified— by the drop- ping of the comma before " where "—in the Articles of 1786 and 1806, it has been revived in the code of 1874. Moreover, that the limitation was a general one was clearly the construction of Major General Scott in the General Order presently to be cited," and was evidently also that of O'Brien : ' further, it was expressly ruled to the same effect by Judge Advocate General Holt,' and this view is now uniformly acted upon In practice. If it be objected that 740 this interpretation would preclude from convening a court-martial the commander of a garrison whose force was wholly made up from a single corps or arm of the service, it may be answered that it can scarcely happen that a properly constituted garrison command will be so entirely simple; one or two representatives at least of some corps other than that composing the body of the command being almost invariably present with it.° Meaning of " other place." As to the term " other place," this, it is to be observed, is a designation of the most comprehensive character, including any camp, post, barracks, bivouac, rendezvous, hospital, arsenal, transport, or other situation or locality whatever at which there may be stationed, or may tem- porarily remain, a command of the nature contemplated by the Article. Meaning of " different corps." In the original article of 1775 the language employed was : " where the troops under his command consist of detachments from different regiments or of Independent companies." The term " different corps" would thus appear to have reference primarily to detachments from different arms or branches of the military force serving together — as infantry and cavalry, artillery and engineers, &c. By the construction, however, al- ready Indicated as announced from Army Headquarters in 1843, a significance was attributed to the description, " where the troops consist of different corps," which considerably enlarged their purport and application. This was, that, to fix upon the command the character of one consisting of " different corps," and to authorize its commander to convene a garrison court. It is sufficient that there should be on duty with the command, as a part of it, a single representa- In Lt. Col. Robertson's case, one of the offences with which the accused was charged, and of which he was convicted, was — " permitting sentences of regimental courts to be carried into execution, without affixing his approval to the proceedings of the same." James, 828 ; Simmons | 720, note. MILITAEY LAW AND PRECEDENTS. 489 In command,) Is empowered to return the proceedings to the court, (reas- sembling It if necessary,) for revision and the correction of errors." Power of pardon and mitigation. Art. 112, in empowering ofllcers author- ized to act upon the sentences of general courts to remit, &c., the same, adds : — "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." What has been said, there- fore, in regard to the nature and extent of this power In Chapter XXI will in general apply here. It may be repeated that, in the opinion of the author, power is given by this Article, not only for the pardon or mitigation 751 of a punishment or punishments by the officer In command at the time of and In connection with the original action and approval, but also for the pardon or remission of the same by such officer or his successor, at any time thereafter before the sentence is fully executed. The beneficial nature of the provision justifies a liberal construction, and the practice has sustained this interpretation. Promulgation. 'The proceedings, In our practice, are published by the com- manding officer of the regiment, garrison, &c., to the command, in a regimental or post, &c., general order, the form of which follows In substance that of the General Order by which the proceedings of the superior courts are commonly promulgated. Action not subject to supervision. Arts. 109 and 112 vest, as has been seen, in regimental and garrison commanders the power to confirm and execute, as well as pardon or mitigate, the sentences of the courts ordered by them under Arts. 81 and 82. Upon a familiar principle of Interpretation this power is to be regarded as exclusive: no superior authority, therefore, can legally reverse or revise their action. The Army Regulations, indeed, of 1863, con- tained two paragraphs, (numbered 898 and 899,) which declared that such commanders should transmit the proceedings of these courts to the department headquarters " for the supervision of the department commander," and, again, that the latter might In certain cases " suspend " the execution of the sentence. Par. 899, however, which contained the latter provision, was held by Judge Advocate General Holt to be void and Inoperative because In conflict with the Articles of war, and this opinion was concurred In by the Secretary of War." In the later authorized editions of the Regulations, those of 1881 and 1889, not only was par. 899, but also par. 898 of 1863, wholly omitted ; the last apparently as being subject to the same legal objection as the other. In the opinion of the author, the latter regulation was as properly required to be omitted as the former. An army regulation is inferior in force to an Act of Congress, and such an Act having vested in regimental, &c., commanders the exclusive iwwer to finally act upon and fuUy execute the sentences of inferior courts, 752 their action cannot, by an army regulation, be made subject to the revision of superior or other authority. Par. 898 of 1863 was thus an illegal assumption and of no efEect, and has properly been abandoned. Thus, at military law, the action of the commanders authorized to pass upon the proceedings and sentences of the Inferior courts is as exclusive and final as is the action of the class of commanders authorized to pass upon the proceedings and sentences of general courts-martial. DISPOSITION OF BECOB.DS. Par. 1041 of- the Army Regulations de- clares, generally, that — "the judge advocate shall transmit the proceedings « Par. 1043, Army Regs., is expressed in general terms, thus embracing all courts- martial. See this subject as treated In Chapter XXI. "In G. O. 72 of 1873. 490 MILITAEY liAW AND PRECEDENTS. Without delay to the officer having authority to confirm the sentence." A provision of the Act of March 3, 1877, directs that all records of inferior courts shall, "after having ieen acted upon, lie retained and filed m the judge advo- cate's offlce at the headquarters of the department comnumder in whose depart- ment the courts were held, for two years, at the end of whi^h time they may be destroyed." This provision was enacted in view of the fact that the Bureau of Military Justice had become gradually burthened with a vast mass of such recoms. the accumulation of which it was desirable to discontinue. Under this Act, regimental and garrison commanders, after having finally acted upon the proceedings and sentences of the courts ordered by them, transmit the records to department headquarters to be disposed of as prescribed, II. The Field Officeb's Coubt. ITS NATTTBE in GENEKAL. This Is a distinct species of tribunal from the Regimental or Garrison Court, differing from the latter mainly in that (1) it is authorized only for time of war, (when it takes tiie place of the regimental or garrison court whenever it can practicably be convened:) (2) that its sentences are not ordinarily executed by the simple order of the convening officer, but may require, to give them effect, the approval of a higher com- mander. As will be seen, however, it is assimilated to the Regimental Court authorized by Art 81, being itself a simple form of regimental court provided for periods when a summary disposition of cases of minor offenders is especially called for." 753 THE LAW ON THE SUBJECT. This special agency for the adminis- tration of military justice was inaugurated during the late war by the Act of July 17, 1862, c. 201, s. 7. The provisions of this statute were incorporated In the code of Articles of 1874, and the existing law relating to this court is contained in Arts. 80, 83 and. 110, as follows : — "Aet. 80. In time of war a field officer may he detailed in every regiment, to try soldiers thereof for offences not capital; and no soldier, serving with his regiment, shaU he tried hy a regimental or garrison court-martial when a field officer of his regiment may he so detaUe^. "Abt. 83. ***** * Field officers detailed to try offenders shall not have power to try capital cases or com/missioned officers, or to inflict a fine ex- ceeding one month's pay, or to imprison or put to hard labor any non-commis- sioned offl,cer or soldier for a longer time than one month. "AST. 110. No sentence of a field officer, detailed to try soldiers of his regi- ment, shall he carried into execution, until the whole proceedings shall haive been approved by the brigade commander, or, in case there be no brigade com^ mender, by the commanding officer of the post." Art. 83, which applies alike to all Inferior courts, have been fhlly considered In the first part of this Chapter, in treating of the Jurisdiction and Power of punishment of Regimental and Garrison Courts. " Except as to the formality required for the execution of Its sentences, this court re- sembles the " Drum Head," or " Field Court-Martlal," formerly known in the English practice. As to the existence and procedure of this summary tribunal, which was held, without regard to the usual forms, in " cases supposed to require an immediate ex- ample," see reference in Adye, 97 ; Mil. Law of Eng., 56 ; Simmons S 251 ; Hough, 235 ; Id., (P.) 554, 683, 686-7, 797-9"; D-Aguilar, 77 ; Gov. Wall's Case, 28 How. St. T., 151 ; Picton's Case, 41 Hansard's Debates, (3) 1271, 1273. That a resort to a Drum Head Court was considered to be permissible only in an emergency, as during war or the oc- casion of a mutiny, see case of Col. Allan, convicted of the offence of employing such a court in cases not Justifying it. Hansard, N. S., vol. VIII, p. 490. Debate in Ho. of Com., 1828. No such court has ever been sanctioned in our law or practice. MrLITAKY LAW AND PBECEDENTS. 491 CONSTITUTION OF THE COTJBT. The Articles are silent as to the officer by whom the Field Oflacer may be detailed as a court. Following, however, the analogy between this and the Regimental Court, it would seem clear, 754 as held by Judge Advocate General Holt," that it was intended that the regimental commander should make the detail where practicable; i. e. where there is, besides himself, at least one other field officer of the regiment present and serving with it. In the absence of such an officer, the court, (the regimental commander not being authorized to detail himself,) must, if de- tailed at all, be detailed by superior authority ; and it may be inferred, from the provision of Art. 110 in regard to the taking of action upon the sentence by the brigade (or post) commander, that such commander would be, under the circumstances indicated, the proper authority to make the detail" Upon this point the law is incomplete. In practice. Field Officers' Courts, where re- sorted to, have commonly been detailed by commanders of regiments. Where it has been impracticable to convene them on account of the want of material, or where, because the regiment was not embraced in a brigade or post com- mand and its sentence could not therefore be executed, it would have been futile to have done so, the ordinary regimental or garrison court, or a general court, has been convened instead ; and, in convening the former court, the order, in view of the concluding provision of Art. 80, has usually specified in terms that it was " impracticable to detail a Field Officer." It is evident that an officer having a command which is less than a regiment, or which though greater does not embrace a regiment, is not empowered to detail a Field Officer under Art. 80. COMPOSITION. The court must consist either of a colonel, lietenant-col- onel, or major, or of an officer who, though of a lineal rank inferior to major, has the brevet rank of a field officer and has been duly assigned to duty accord- ing to his brevet rank. Such assignments, however, are rarely if ever made in regiments, g,nd, in practice, the, (or a,) major of the regiment has commonly been detailed for the court. A captain, who is merely acting as major, cannot legally be so detailed. Further, from the terms of Arts. 80 and 110, it is clear that the 755 Field Officer must be a regimental officer and an officer of the regiment to which the parties tried belong, and that a staff officer is not eligible for the detail. JURISDICTION. As has been remarked, the jurisdiction of the Field Officer is restricted to time of war. He cannot therefore legally be detailed under Art. 80 in time of peace. As to the persons within his jurisdiction, these, as indicated by the Article, are the enlisted men of the regment in and for which he is detailed as a court. The regiment is the exclusive field of his jurisdic- tion and its limit. While he may try soldiers of the different companies of the regiment though serving at separate stations, &c., provided they are all under the command of the regimental commander, he may not try members of the regiment who are detached from it and serving with other and distinct com- mands. In brief, both as to offenders and offences, his jurisdiction is identical with that, heretofore defined in this Chapter, of the Regimental Court of three officers authorized by Art. 81. POWER OF PUNISHMENT. The authority also of the Field Officer to award punishment upon conviction is made, by Art 83, the same as that vested in the other inferior courts and already considered In this Chapter. « Digest, 90-91. « In some instances during the late war, department commanders detailed these courts or ordered them to be detailed. See G. O. 24, Dept. ot the Cumberland, 1862; Coppfie, 43. 492 MILITABY LAW ANB PRECEDENTS. PBOCEDTTRE — No oath required. Neither the 84th*' nor other Article of the code requires that the Field Officer shall be specially sworn as a court, and in practice he has never been sworn as such. No judge advocate detailed. Under the general authority of Art. 74, a Judge advocate may probably be as legally detailed to attend a Field Officer's as a regimental or garrison court. In practice, however, no judge advocate or recorder has ever been so detailed. The Field Officer himself performs the whole duty of the court— conducts the investigation and keeps the record. The form of the record. The original Act of 1862 expressly provided that the Field Officer " shall make a record of his proceedings," and Art. 110 756 declares that no sentence adjudged by a Field Officer " shall he carried into execution until the same shall have been approved by the brigade commander," &c. As to the record of proceedings to be made by the Field Offi- cer, this, in view of the summary nature of his action, need only be, and has in practice been, of a brief and simple character. UnUke the records of other inferior, or of general, courts, his record does not ordinarily set forth the testimony, when any is taken, nor does it contain any reference to the afford- ing to the accused of an opportunity for challenge, the Field Officer not being liable to challenge. In other respects the record will properly foUow the essential features of the records of other courts, setting forth such particulars as are requisite to exhibit the authority and the action of the Officer. It will thus properly recite the order of detail, the names, &c., of the offenders tried, their offences as charged and their pleas, the findings of the court and the punishments adjudged upon conviction ; the whole being authenticated by the Officer's signature. ACTION UPON THE FBOCEEBINOS. Art. 110, in making it essential to the legal execution of the sentence that the proceedings shall first be approved by the brigade, (or, if there be none, the post,) commander, is construed, upon the familiar principle of ewpressio unius eseolusio alterius, as confining the authority of approval to the particular commanders named, — excluding there- from, for example, a division- or department commander." Where, therefore, a regiment is a part neither of a brigade nor a post command, it will, as already remarked, be quite useless for the reglmeital commander to detf^il a field officer as a court, since no pimishment adjudged by him can take effect : some other court win therefore properly be resorted to. The Article requiring that the proceedings and sentence, to be operative, shall be approved by the brigade (or post) commander, It 'follows that where he disapproves the proceedings, the same, as in the case of the proceed- 757 Ings of a general court, are rendered nugatory " and no punishment can be enforced. Where the proceedings are approved by such commander, the execution of the sentence will In general properly be devolved upon the regi- mental commander. PABDON AND UITIGATION. The present Articles of war— in Art. 112 or elsewhere — fail to authorize the convening officer or other military com- « The '■ regimental " court referred to In this article is evidently the old regimental court of three officers, of Art. 81 ; the only one In existence when the original of Art. 84 was enacted. ■"Proceedings of Meld Officers' Courts have indeed been published as acted upon and approved by department (and district) commanders in sundry General Orders, of which the greater number were G. O. of the First Military District, of 1868-9. This was, how- ever, before the publication of the Articles of 1874, in which the law on the subject of the action upon the proceedings of these courts is more succinctly expressed than in the Act of 1862. " Except of course that they may be pleaded as a " former trial." See Chapter XVI, ante. MILITAEY LAW AND PRECEDENTS. 493 mander, or the Field Officer, to pardon or mitigate punishnienta awarded by the latter." III. The Summabt Court. This Court, of which the title is taken from that of courts of the same name, (but otherwise quite different, especially in their composition and power of punishment,) in the British law and our own Naval code, was established by an Act pf Oct. 1, 1890, c. 1259, s. 1, (entitled "An Act to promote the administra- tion of justice In the Army," ) which provides as follows — " That hereafter in time of peace all enlisted men charged with offenses now cognizable by a garrison or regimental court-martial shall, within twenty-four hours from the tinie of their arrest, be brought before a summary court, which shall consist of the line officers second in rank at the post or station or of the command of the alleged offender, and at stations where only officers of the staff are on duty the officers second m rank shall constitute such court, who shall have power to administer oaths and to hear and determine the case, and when satisfied of the guilt of the accused party adjudge the punishment to be inflicted. There shaU be a summary court record-book or docket kept at each military post, and in the field at the headquarters of the command, in which shall be entered a record of all cases heard and determmed and the action had thereon, and no sentence adjudged by said summary court shall he executed until it shall have been ap- proved by the post or other commander: Provided, That when but one com- missioned officer is present with a command he shall hear and finally deter- mine such cases as require summary action: Provided further, * * * 758 That any enlisted man charged with an offence and brought before such summary court may, if he so desires, object to a hearing and determina- tion of his case by such court and request a trial by court-martial, which re- quest shaU be granted as of right, and when the court is the accuser the oasa shall be heard and determined by the post-comjmander, or by regimental, or gar- rison court-martial: Arid provided further. That post and other commanders shall, on the last day of each month, make a report to the department head- quarters of the number of cases determined by summary court during the month, setting forth the offences committed and the penalties awarded, which reports shall be filed in the office of the judge advocate of the department." An amendatory Act of July 27, 1892, provided — " That the commanding officers authorized to approve the sentences of summary courts, shall have the power to remit or mitigate the same." PURPOSE OF THE COURT — Exceptions to its use. This court is in- tended as a substitute, in time of peace, for the regimental or garrison court " — mainly as a substitute for the garrison court in post commands. Inasmuch as the Act declares that, " in time of peace, all enlisted men, charged with ofEences cognizable by a garrison or regimental court-martial," shall be. brought before this court for trial, except under certain circumstances further specified, it results, and has been so ruled by the Secretary of War," that whenever, (in time of peace,) a garrison (or regimental) court is ordered in the case of an enlisted man, the order should state the fact which brings the case within one of the excepted classes, "and thus makes it a legal court." Thus the order should specify either that the accused, having been " brought before " a sum- " The " regimental " court referred to In Art. 112 is evidently the court, commonly designated by that title, authorized by Art. 81. See note ante, as to the " regimental " court referred to in Art. 84. » See opinion of Solicitor General of March 14, 1892, published In G. O. 27 of 1892. » Circ. No. 9, (H. A.,) 1891. 494 MILITARY liAW AND PRECEDENTS. mary court, " objected to a hearing and determining of his case by such a court and requested a trial by a" regimental or garrison court, as the case may be, (which request the Act declares is to be "granted as of right;") or it should set forth that the officer composing the summary court which would have tried the case is the " accuser"" therein of the accused, in which 759 contingency the Act declares that the case " shall be heard and deter- mined (by the post commander or) by a regimental or garrison court- martial." A fhird instance would be that— not provided for by the A<;t or other statute, but initiated by par. 254 of the Army Regulations ■*— where the accused, being a sergeant, objects to be tried by^a summary (or other inferior) court; in which case it is declared that he shall not be so tried except by special permission of the authority competent to order his trial by general court- martial. But this regulation is at variance with the provisions of the Act, since under the Act a noncommissioned officer is amenable to teial in the same man- ner and to the same extent as a private soldier, and therefore without any reference to the department or other commander, such as is indicated, being necessary or material. CONSTITUTION. The summary court, like those for which it is a substt- tute, will be ordered either by the commander of a regiment or " corps," or by a post commander — ^in general by the latter. The Act seems also to contemplate the possibility of a command other than a regimental, or corps, or post com- mand — one answering for example' to that of a " place where the troops consist of different corps," spepifled in Art. 82, of which the commander may be authorized to convene a summary court ; but such a contingency must be a rare one in a time of peace. COMPOSITION. Under the provisions of the Act of 1890, a summary court will ordinarily consist of the line officer second in rank at the post, station, or command of the offender. Or, where there are only staff officers on duty at the station, it will consist of the staff officer second in rank." The presence however of a line officer on duty at the same post will render a staff officer also on duty there ineligible to act as such court; thus he cannot legally sit as such where the post commander is a line officer. Where there is " but one commissioned officer present with a command," that officer, who will neces- sarily be the commanding officer, will officiate as the court. So, where a line (or staff) officer, second in rank, detailed as the court, is the " accuser" 760 of the party to be tried, the court must be composed of the post copi- mander, who will thus detail himself. If indeed the post commander, being the only officer present with the command, occupies the attitude of ac- cuser, there can be no summary court, and the case under the Act must go to a garrison or regimental court." But, unless specially requested, a garrison, &c., court will not be legal where the post commander can officiate. JURISDICTION. It is clear from the terms of the Act that the jurisdic- tion of the summary court is intended to be the same as that of the regimental or garrison court, subject to the same Umitations as prescribed in Art. 83. It has legal cognizance, therefore, of all offences committed by enlisted men of the command of the convening authority which would be cognizable by a gar- rison or regimental court. The classes of offences which are excepted from its jurisdiction are thus the same as those specified in considering the jurisdiction " See this term deSned in Chapter VI. »' As amended by G. O. 67 of 1893. And see G. O. 47 of 1894. »The medical officer second in rank at a hospital post, (where there were no line officers,) would thus be eligible for this court. "See Clrc. No. 1, (H. A.) 1891. MILITAKY LAW AND PRECEDENTS. 495 of the other inferior courts. It has been ruled that as the jurisdiction of the summary court extends to enlisted men only, the discharged soldiers held, as convicts at the late Military Prison, at Leavenworth, Ks., being civilians, were not amenable to trial by such court. PROCEDURE. In General Order No. 29 of 1891, it is directed as follows— " Soldiers against whom charges may be preferred for trial by summary courts shall not be confined In the guard house but shall be placed in arrest in quarters, before and during trial and while awaiting sentence, unless in par- ticular cases restraint may be deemed necessary." This direction is repeated in almost identical language in the more recent G. O. 16 of 1895. The Act of 1890 provides that such soldiers shall be brought before the sum- mary court " within 24 hours from the time of their arrest." It has been re- marked in Orders that the limit here specified is not twenty-four hours from the commission of the offence but from the arrest only, and that as arrest may be deferred in the discretipn of the commander, the period between ofCence and trial may thus be considerably prolonged beyond twenty-four hours without affecting the legality of the proceedings. The provision is a directory one, not one affecting jurisdiction, and it has been held by the Secretary of War 761 that it is for the responsible commanding officer, not the court, to determine when cases should be brought to trial ; and that a delay of more than twenty-four hours in causing an offender to appear before the court is not pleadable in defence by the accused, though if such delay be protracted, the fact may well be put in evidence as ground for mitigation of punishment." It is further declared, in the same connection, as follows — " Summary courts should be opened at a stated hour every morning, except Sunday, for the trial of such cases, if any, as may properly be brought before them. Trials should be had on Sunday only when the exigencies of the service make it neces- sary." " In G. O. 47 of 1894, it is directed that — " When charges are preferred against an enlisted man for offences cognizable by inferior courts-martial, they will be laid before the post commander, who, if he thinks that the accused should be tried, will cause him to be brought before the summary court. Here he will be arraigned and allowed to plead, according to the practice of courts- martial." Unless he pleads guilty, "witnesses will be sworn and evidence received, the accused being permitted to testify in his own behalf and make a statement ; but the evidence and statement will not be recorded." The officer acting as the court "shall," to cite from the Act of 1890, "have power to administer oaths and to hear and determine the case, and when satisfied of the guilt of the accused party, adjudge the punishment to be inflicted." The oaths here referred to are those of the witnesses : though the trial officer Is not himself sworn, the witnesses must be. By further decisions of the Secretary of War, it is held to be " the duty of the officer who brings charges before a summary court for trial to submit evidence of previous convictions, or to cite them when the convictions have been by the same court."" In G. O. 47 of 1894, it is declared that "the proper evidence of previous convictions by summary court is the copy of the summary court record furnished to company and other commanders, or a copy of the summary court record specially furnished for the purpose MCirc. No. 2, (H. A.,) 1891 ; Do. of 1892. "Circ. No. 2, (H. A.,) 1891. •« Circ. No. 2, (H. A.,) 1892. 496 MILITARY LAW AND PKEOEDENTS. 762 and certified to be a true copy by the post commander or adjutant." •* But, as remarked in the Circular cited of 1892, the officer acting as the court " may take judicial notice of what appears upon the record of his own court." PTJNISHMENT. The power of punishment of the summary court is the same as that of the other inferior courts, and is thus subject to the Umlta- tlons prescribed by Art. 83. So, in view of the provision on the subject con- tained in Art. 4, it cannot adjudge dishonorable discharge. The authority which the Act of 1890 vests in the President " to prescribe specific penalties for such minor ofEences as are now brought to trial before garrison and regi- mental courts-martial," has not been exercised further than by the fixing of maximum punishments, by G. O. 21 of 1891, (amended by G. O. 16 of 1895,) made pursuant to the Act of September 27, 1890. ACTION. It Is further provided in the Act establishing this court that— "No sentence adjudged by said summary court shall be executed until it shall have been approved by the post or other commander "—a provision sub- stantially equivalent to that of the 104th Article of War. The power of disapproval Includes of course disapproval; and we have seen that the com- manders authorized to approve the sentences of such courts may now also "remit or mitigate" the same. In G. O. 47 of 1894, it Is announced that— "When a post commander sits as a summary court, no approval of the sen- tence Is required by law, but he should sign the sentence as post commander and date his signature." RECORD. A form for the record of a summary court is prescribed In G. O. 47 of 1894, for which blanks are furnished from the Adjutant General's Office." It sets forth in each case the name, &c., of the accused, the charge or charges with a synopsis of the specifications, the finding, the sentence authenticated by the signature of the trial officer, and the " action of commanding officer with date and signature." The testimony, as we have seen. Is not recorded. 763 The trial officer keeps his own record, but may be assisted by a clerk from the Post Adjutant's Office when requisite." DISCRETION IN THE USE OF THE SUMMARY COURT. While the institution of this court provides a ready and effective means of trial and punishment for minor ofEences, it is yet not essential that It should be resorted to in any case, and It Is discretionary with the proper commanding officer to determine what cases shall be referred for trial thereby, and what ones shall be disposed of by the exercise of the disciplinary power of " admonition or the withholding of privileges and indulgences.'"" But, as it is remarked by the Major General Commanding, in an Order of 1892 ^ — " The increasing number of trials by summary court and the trivial character of many of the oflEences tried indicate that commanding officers frequently fail to make use of this power. They are therefore reminded that it is their duty to use all reasonable means to prevent the occurrence of delinquencies rather than to punish them. In the discharge of this duty they may not only deprive unworthy soldiers of privileges, but take such steps as may be necessary to enforce their orders. It is believed that the proper use of this power will make It unnecessary to bring before the summary court many of the trifling delinquencies which are " In G. O. 16 of 1895, it Is directed that — " In the cases of conviction hy snmmary court, • * a duly authenticated copy of the record of said court shall be deemed sufficient proof." "Clrc. No. 9, (H. A.,) 1894. "Clrc. No. 1, (H. A.,) 1891. "arc. No. 13, (H. A.,) 1891. "G. O. 73. MILITARY LAW AND PRECEDENTS, 497 now made the subject of trial ; indeed, that such trifling delinquencies will In great measure be prevented. Department commanders will see that their sub- ordinate commanding officers fulfill their duties in this regard." MILITARY BOARDS. Beside the Boards of government, examination, Inspection, investiga- 764 tion, Sc.,** constituted by law or convened from time to time by the President or military superiors in the exercise of their commands, and not calling for special notice in this treatise, there are two more important species of Boards, one authorized by statute and one by army regulation, of which brief mention should here be made. These are Retiring Boards and Boards of Survey. Retibing Boabds. The law on the subject. The matter of retirement In the army, which Is a form of compensation for public service, is, like the matter of pay, regulated by positive enactment." Retiring Boards are bodies constituted and empowered, and whose duties are prescribed, under and by Sections 1246 to 1253 of the Revised Statutes." These statutes provide— that the Secretary of War, under the direction of the President, shall, from time to time, assemble such boards, of from five to nine officers, two-fifths of whom shall be medical officers; the members other than medical to be, " as far as may be, seniors in rank to the officer whose disability is inquired of ; " — that ^ the members of the board shall be sworn in every case to discharge their duties honestly and Impartially ; "^- that the board, for the purpo.ses of the investigation of the matter of the disability and Incapacity of officers, " shall have such powers of a court-martial and of a court of inquiry as may be necessary ; " — that the board shall find upon the questions of the incapacity for active service of the officer, the cause of his incapacity, and whether or not such cause was an Incident of the service ; — ibat the approval of the President shall be necessary to give effect to the finding of the board; — that the President, in approving, shall retire the officer 765 from active service merely, (if found. to have been incapacited by an incident of the service,) or, (if not so found,) may, in his discretion, " wholly retire " him, t. e. drop him from the army, and remit him to the status of a civilian ; " — that no officer whose case is inquired into by a retiring board " As, for example, tbe boards authorized or recognized in the Rev. Sts., Sees. 1160, 1172, 1196, 1208, 1208, 1214, 1325, (Academic Board of the Military Academy,) 1327, (Board of Visitors to the Academy,) 1345, (Board of Commissioners of the Military Prison ;) and m the Acts of June 23, 1874, June 18, 1878, &c. ; also the Board of Ordnance and Fortification, established by the Act of Sept. 22, 1888 ; the Boards for the examination of oflicers for promotion, authorized by the Act of Oct. 1, 1890 ; the Boards for the exainination of enlisted men for appointment as o£9cers, authorized by the Act of July 30, 1892, and regulated by G. O. 79 of 1892 ; the Board for the inspection of recruits, provided by par. 928 A. R., as amended by G. O. 42 of 1893 ; and sundry lesser boards. With these also are to be classed the Post and Regimental Councils of Administration, (Art. XXXIII, A. R.) As to these last see Kautz, Customs of the Service, 158-169. M See McBlair v. V. S., 19 Ct. CI., 528. " Similar provisions as to naval retiring boards are contained In Sees. 1448 to 1453, Rev. Sts. It may be noted that retirement on account of age or duration of service is a pro- ceeding wholly distinct from retirement for disability as ascertained by a board : for the former no inquiry Is necessary other than a reference to the officer's military record. " As to the elTect of " wholly retiring," as a form of summary dismissal, see Miller «. tJ. S., 19 Ct. CI., 353, also post. Chapter XXT— " Ninety-Ninth Article." 440593 0-42-32 498 MILITAKY LAW AJSJ) PRECEDENTS. shall be retired "without a full and fair hearing" before the board, If he demand it. CompoBitioa. The provision, above cited, of Sec. 1246, that the members, other than medical, " shaU, as far as may be," be " seniors in rank to the officer vsrhose disability is inquired of," is analogous to the provision of the 75th Article of war in regard to the rank of the members of a court-martial, and is to be similarly construed."' As in that case it is to be considered that the statute is directory only upon the convening authority ; that it is for him to de- termine the matter of the rank of the members; and that his detail of officers for the board, as shown by his order. Is conclusive evidence that, so far as the interests and exigencies of the service have permitted, seniors in rank have been selected. Swearing of members. The statute,— Sec. 1247,— though requiring that the members shall be sworn, does not specify how or by whom. No provision is made for a judge advocate or recorder, nor is the senior or the junior member empowered to qualify the others. In practice, however, a recorder is detailed, with the board; and inasmuch as, by Sec. 1248, the board is invested with the "powers" of a military » J9 Opins,, 809 500 MHJTABY IiAW AND PRECEDENTS. Boards of Swvey. These are advisory boards, composed generally of three officers, authorized by the Army Regulations to be convened by commanding officers, for the pur- pose of investigating the cause and fixing the responsibility in cases of de- ficiency or damage of public property entrusted to officers or soldiers, or furnished for military use ; of fixing and recommending amounts of stoppages or debits therefor; of verifying discrepancies, if any, where such property is transferred from one officer to another ; of making inventories of such property when required to be abandoned or when the officer in charge has deceased, and for other purposes indicated in the Regulations. The regulations on the subject are mainly contained in Title LX of the Army Regulations of 1889." These regulations are so specific as to call for but little comment Province and duty in general. The main object and use of a board 769 of survey is to decide whether a certain officer, soldier or other person, shall be charged with the amount, (fixing it,) of a particular loss, de- ficiency, or damage to public pro{)erty, or relieved from liability therefor," or to determine a question of responsibility for property as between two or more officers, soldiers, or other persons. While such a board Is not a court and cannot try, convict, or acquit, but can advise or recommend only," it may, like a coul-t of inquiry, report facts and conclusions which will properly form the basis for a military charge or a civil prosecution. It is important, therefore, that it should investigate," as thoroughly as its want of power to swear wit- nesses will permit,"" and report, the full testimony bearing upon the question at issue. Thus where public stores received at a military station are found to be deficient or damaged, the board of survey, (which should be convened without delay,) should make so extended and complete an investigation as that it shall, if practicable, satisfactorily be made to appear from its report what party, — whether original sender, intermediate forwarding officer, contractor for supplies or transportation, common carrier or other agent, or consignee or actual receiver, — is the person really accountable for the loss, damage, or demurrage." To facilitate the solution of the question, the board should annex to their report all material bills of lading, invoices, and receipts, specify the routes and modes of transportation, state the names and marks on the packages, &c." 770 If the loss was the fault of no person, but was Incurred through the "And see also pars. 117, 761-753, 781, 782, 787 ; G. O. 11, 37, and Clrc. No. 9, (H. A.,) of 1890 ; G. O. 6 of 1891 ; Clrc. No. 22, (H. A.,) 1893 ; G. O. 10 of 1894. " See pars. 117, 751, 781, 782, 787, 788, 893. " See pars. 793, 797. " " They will rigidly scrutinize the evidence especially In those cases wherein property is alleged to have been stolen or embezzled," (par. 790.) "The ruling of the Judge Advocate General, that boards of survey are not empowered to swear either themselves or witnesses, as published in G. O. 68 of 1873, Is now Incorporated in the Regulations, par 792. ■» Clrc. 6, Dept. of Texas, 1865 ; G. O. 15, Id., 1871 ; G. O. 32, 52, Dept. of Dakota, 1867 ; Do. 12, Id., 1870 ; Do. 87, Id., 1873. A contractor cannot be hound, without his consent, by the report of a board of survey. See Heathfleld v. TJ. S., 8 Ct. CI., 213. Otherwise where he has stipulated in the con- tract to be so bound. And in such case, the report, if not objected to by the contractor when a copy is furnished him. will subsequ.'ntly be supported as sufficient by the courts, though it merely consist of a conclusion without statement of evidence or reasons. U. S. V. Shrewsbury, 23 Wallace, 508. " Clrc. 6, Dept. of Texas, 1865 ; G. O. 24, Div. of the Paciflc, 1866. In addition to the Orders aboVe cited, see further — as containing instructions, die.. In regard to these boards — G. O. 33, Dept. of the Columbia, 1868 ; Do. 21, Dept. of Texas, 1875 ; Circ. 2, Fifth Mil. District, 1868 ; Clrc, Dept. of Cal., March 20, 1872 ; Do., Id., Jan. 2, 1875 ; Kautz, Customa of the Service, 131-140, MILITARY LAW AND PRECEDENTS. 501 violence of the elements or the operations Incident to a state of war, or some contingency of the service," " this fact should be made fully to appear. The hearing. Where the investlgntlon involves an Inquiry into the acts or procee'dings of a particular officer, or soldier, or a question of his accounta- .billty, he should be allowed to appear bfefore the board and be fully heard in defence or explanation. While the board may receive in evidence affidavits where no better form of evidence is attainable, its investigation should, if practicable, be in no respect ex parte f* the person or persons interested being afforded a reasonable opportunity to file counter affidavits or introduce oral or written evidence. Action. Provision is made in the Regulations for the approval or disap- proval of the proceedings of the board by the post commander who has convened it, subject to revision by higher authority." The approving officer will properly endorse upon, or state In connection with, the report, what action he may him- self have taken in the case." Thus it is specifically direc .ed in several of the General Orders that he should cause carriers or contractors to be charged with the money value of property for which they are found by the board to be accountable, on the bills of lading before they are signed." When the value, or amount of loss,- of property involved, exceeds a certain specified sum, the proceedings are required to be acted upon by the department commander, 771 to whom also they are in any case to be submitted for completion, if requested by " an officer pecuniarily interested." If found, on examina- tion, " to exhibit serious error or defect," they are further required to be submitted to the Secretary of War." "Par. 793, A. R. "Compare Brannen v. U. S., 20 Ct. CI., 219. "Par. 794, 795. A. R. «6. O. 12, Dept. of Cal., 1869. "G. O. 12, Dept. of Dakota, 1879; Do. 12, Dept. of Cal., 1869. In the last Order It is said — "A failure to do so will throw the responsibility on the officer who may have signed the bill of lading without having first called for the board of survey, to examine into losses and fix responsibility thereof." » See pars. 795. 797, 798. CHAPTER XXIII. THE BECOKD. 772 THE LAW BEX/ATIKO TO THE SUBJECT. Though courts-martial are, as we have seen," not courts of record in any such sense as that In which the term Is efliployed in the civil practice, it is yet the uniform usage of our service for all such courts, whether general or inferior, to make and render formal records of the proceedings of all cases tried by them. They are not In terms required by any statute to keep records, but that they will properly do so Is clearly contemplated by the code in Arts. 104, 110, 111, 113, and 114,' which refer to the approving, forwarding, and preserving an.d furnishing copies, of the " proceedings " of military courts, — by Sec. 1199, Bev. Sts., which makes it the duty of the Judge Advocate General to receive, &c., such " proceedings,"^ — by Sec. 1203, Rev. Sts., which requires that the " reporter," thereby authorized to be appointed, " shall record " such proceedings, — by the Act of March 3, 1877, which provides for the disposition of the " records " of inferior courts, — and by the Act of October 1, 1890, in its provision for " a summary court record-book, or docket," &c. The Army Regulations indeed are more explicit in their references to the record. Par. 1037 enjoins that — " Every court-martial shall keep a complete and accurate record of its proceedings," &c., and goes on to direct as to the authentication of " the record," and to indicate certain particulars which " the record must show." Par. 1038 directs that the record " shall be clearly and legibly written," &c. Par. 1039 directs as to the form in which "the 773 record of the proceedings" shall be "endorsed," &c. Pars. 1041 and 1042 direct as to the transmittal of the "proceedings" to the proper oflScial. Par. 1043 refers to the revision and correction of the " record." The custom of the service, however, to a much greater extent than regula- tion, must be the guide as to the form and substance of the statements and re- citals In a record of a court-martial. GENERAI, DUTY OF THE COUBT AS TO THE BECOBD. The record is the act and record of the court, not of the judge advocate. The latter is, here, but the ministerial officer who notes the proceedings under the court's direction. The record is not the history of a prosecution, but of an Impartial investiga- tion conducted by a body of officers in pursuance of the order of a competent superior and of an oath which requires them to conduct it faithfully. It is thus the court that makes the record and is responsible for it ; ' its responsibility consisting In the rendering of a full and accurate report of the facts and law developed on the hearing, completed by a final judgment in due form.* »In Chapter V. ' Compare Arts. 120, 121, as to the " proceedings " of Courts of Inquiry " G. C. M. O. 22, Dept. of the Colorado, 1893. ' See G. O. 3, Dept. of the Pacific, 1863 ; Do. 23, Dept. of the South, 18.70. Courts- martial, (with their judge advocates,) have l)een not unfrequently censured by Review- 502 MILITARY LAW AND PBECEDENTS. 503 FtlNDAJ/IENTAI- EXTLES FOK THE MAKIKG UP OF THE BECOBD. Two general rules properly governing the framing of the record may be speci- fied at the outset, namely: — 1. The record must fully set forth all the proceedings had in the par- ticular case. Thus it must include the original assembling under the Order or Orders convening and composing the court : the preliminary challenging, 774 if any, and the action thereupon ; the organization for the trial ; the appointment of reporter or employment of clerk, if any, and introduction of counsel ; the arraignment and plea«, with special pleas, if any, and disposi- tion of same; the sworn testimony and written evidence, with the objections to its admission am? rulings thereon ; the closing arguments or statements ; the finding and sentence; together with all motions, adjournments, continuances, proceedings for contempt if any," proceedings upon revision if any, &c. ; in short every material act, proposition, or occurrence, essential to perfect the history of the investigation as such, and to advise the reviewing authority as to all the questions of fact and law involved in the case.' The only act of the court or members not properly embraced in the minutes are the discussions, votes, &c., had or given in secret session where the court is closed for deliberation upon its judgment or some interlocutory question. Such discussions are no part of the formal record ; ' and, as to the votes and opinions of members, the stating of these is precluded by Arts. 84 and 85. It' is in fact only the result of a de- liberation in secret session that it is to be entered upon the record. 2. Each record must be an entirety. In other words, when several cases are tried by the same court, each and every record must be entire and perfect within itself ; i. e. both in form and substance wholly distinct and separate from the record of every other case. Each record must be an original ofScial docu- ment, finished and complete in all its details, with no particular left to be sup- plied by a reference to any previous or other record or paper, and as single and individual as if it were the record of the only case tried by the court.* This rule is illustrated by par. 888 of the Regulations, which directs that " the 775 proceedings in each case will be made up separately ; " that is to say that the records of the different cases tried shall not be consolidated or attached together as parts of a continuous r^ort of the court, but prepared and transmitted as successive and independent communications.' Ing Commanders, on account of material omissions and other errors appearing in their records. See, for example, G. O. 23, Dept. of the Mo., 1861, Do. 120, Id., 1867 ; Do. 23, Army of the Potomac, 1863 ; Do. 62, 76, Dept. of the Gulf, 1863 ; Do. 54, Dept. of the South, 1863 ; Do. 25, 38, 41, Northern Dept., 1864 ; Do. 16, Id., 1865 ; Do. 49, Dept. of the Susque- hanna, 1864 ; Do. 10, Dept. of Pa., 1865 ; Do. 37, Middle Mil. Dept., 1865 ; Do. 41, Dept. of Fla., 1865 ; Do. 25, Dept. of So. Ca., 1866 ; Do. 54, Dept. of Dak., 1867 ; Do. 25, Id., 1868 ; Do. 5, Dept. of La., 1868 ; Do. 4, Dept. of the Lakes, 1867 ; Do. 5, Id., 1869 ; Do. 14, Dept. of Texas, 1876 ; Do. 29, Id., 1884 ; G. C. M. O. 2, Dept. of Arizona, 1883 ; Do. 31, Dept. of the Mo., 1885 ; Do. 26, Dept. of the Platte, 1894. In. general, however, the commander should first, where practicable, afford the court an opportunity to correct Its errors, by the return to it of the record for revision. See Chapter XXI. • As to the form of the record of proceedings had for contempt, see Chapter XVII. • See G. O. 11, Dept. of the Platte, 1868 ; Do. 51, Id., 1871 ; Do. 8, First Mil. Dist., 1868 ; Do. 3, Dept. of the Pacific, 1863 ; G. C. M. O. 45, Dept. of the Bast, 1893. 'O'Brien, 283. » See G. O. 292 of 1863 ; Do, 2, Dept. of the Pacific, 1863 ; Do. 12, Dept. of the Gulf, 1866 ; Do. 120, Dept. of the Mo., 1867 ; Do. 5, 21, Fifth Mil. Dlst., 1868 ; Do. 176, Id., 1869 ; Do. 7, Dept. of the South, 1869 ; Do. 74, Dept. of Dakota, 1869 ; Do. 29, Dept. of the Platte, 1869 ; Do. 51, Id., 1871 ; Q. C. M. O. 70, Dept. of Texas, 1886. " The record In each case will be complete in itself." Par. 1037, A. R. > Compare 8 Opins. At Gea., 830, 840. 604 MILITABY LAW AND PRECEDENTS. DETAILS OF THE RECORD. Premising with the remark that the record, as Indeed directed by the Army Regulations," should be legibly and neatly written, we proceed to indicate the form and manner of exhibiting the several details of the same in their order. Prefixing of copies of Orders. The original Order convening the court, con- stituting as it does the initial authority for its existence and action, and the foundation for all the subsequent proceedings, is the logical starting point of the record, which should therefore properly be prefaced by a copy of the same. Par. 1037 of the Regulations directs tha€ the record " vrtll set out a copy " in each case. It is not necessary indeed that it be prefixed, since It may be appended at the end ; the best, however, and now uniform practice is to prefix it In addition to specifying the detail of members, time and place of assembling, &e., it should show, by its heading and subscription, by what commander,— whether Commander-in-chief (Presidait,) General of the Army, commander of a separate army, department, division, separate brigade, regiment, garrison, &c.,— it has been Issued, thus testing at the outset the legality of the entire proceedings. 776 If, as Is the more usual course, a series of cases are brought to trial before the court, a separate copy of the convening Order is to be prefixed to the record of each case. Merely to prefix a copy to the record of the first case tried Is to render each record after the first incomplete, thus disregarding the above-stated general rule — that each record should be complete and perfect of Itself. Where, subsequently to the issue of the original Order, there are issued supplementary Orders relieving or adding members, detailing a new judge advo- cate, changing the place or time of session, or otherwise modifying the first Order, copies of all such Orders should in general be prefixed, in the proper suc- cession, to each record made up after their dates, not only as belonging to the history of the proceedings, but as indicating perhaps the authority for the ap- pearing and acting of a member or members or the judge advocate, which other- wise would not be exhibited on the face of the record." In this class of Orders are included those in the form of telegrams : " copies of these, where affecting the personnel of the court, &c., should be prefixed until Orders of a more formal character be substituted therefor. Where, after arraignment, or pending a session of the court, a new Order or telegram of the class under consideration Is communicated to the court, the same should properly be entered in the, body of the proceedings, at the point at which it was received, and prefixed to the sub- sequent records of trials by the same court. Where an Order ceases to have force, — as where it is wholly superseded by a subsequent Order, — It may be omitted from further records. If any considerable number of Orders modifying »• Par. 1038 prescribes — " The record shall be clearly and legibly written, as far aa practicable, without erasures or interlineations." Imperfect legibility is noticed as ■ a defect In Q. O. 23, Army of the Potomac, 1863 ; Do. 3, Dept. of the Pacific, 1863 ; G. C. M. O. 5, 6, Dept of Mo., 1875. Erasures and interlineations occurring in records are animadverted upon in the two first of these G. O. ; also in Do. 76, Dept. of the Gulf, 1863. Though the regulation contemplates that the record will be written, there is no legal objection to type-writing or otherwise printing It in whole or in part, except of course the signatures of the president and judge advocate. Such printing, however, generally necessitates frequent corrections, and ha* not been found to be a very material improve- ment upon the written form. In Circular, No. 12, Hdqrs. of Army, of 1883, " the use of a 'type-writer' in writing out sentences of courts-martial is disapproved." And see G. C. M. O. 27, Dept. of the Colorado, 1893. " In G. O. 3 and 7, Dept. of the Mo., 1863, the proceedings were disapproved as in- complete on account of the omission of copies of ^uch Orderg. >'See G. O. 3, Dept. of the Mo., 1863. MILITAKY LAW AND PRECEDENTS. 505 the original detail, &c., have been issued, and are properly required to be pre- fixed to each record, it may be found convenient to have them printed. Statement of original assembling of the court. The record of the actual proceedings of the court begins with a statement of the first assembling of members at the proper place and time in accordance with the terms of 777 the convening Order. If the full detail makes its appearance, a state- ment in the record that all the members were present will be legally sufficient : the preferable form, however, is to specify the several members by name, in the order of their rank, with their official designations. A statement to the effect that the same members were present as at a previous trial by the same court is irregular and insufficient, as contravening the fundamental rule that the proceedings of each case should be complete in se and not re- quired to be supplemented from the record of any other case." If some of the members detailed are absent, the record should state by name who are present and who are absent, with the cause of absence in each case, if known ; " if not known, an entry of—" cause of absence unknown," or words to that effect, should be added." If less than five are present, it is usual and proper to add a statement that — " no quorum being present, the members there- upon adjourned." The presence of the judge advocate and of the accused, if present in fact, should also be specified. If absent, the cause of absence should be stated when known. If an adjournment is taken on account of the absence of either, It should be so noted. If the judge advocate is not present at the first assembling, the senior member will properly retain a memorandum of the same, to be fur- nished the judge advocate for incorporation into the formal record. At this, or at a later, stage, the record should show that the accused had an opportunity to introduce counsel, and should give the name of the counsel If any be introduced. Statement of subsequent assemblings. The statement of the assem- 778 bling of the court on the second and subsequent days " of a trial should be headed with the proper place and date" and should recite that the court met pursuant to adjournment, naming the members present as in the record of the original session. To state — ^where such Is the fact — that " the same members were present as yesterday," or " as at the last session," is a form sometimes adopted," but it Is always better to specify the actual members present on each day though they may be always the same." Their rank should " So, statements simply to the effect that " the Court being in session," after a certain completed trial, " proceeded to the trial of," &c. ; or that *' the Court met pursuant to adjournment," from a previous trial — without adding who were present, are faulty as not showing, without a reference to some other distinct proceeding, what and how many members attended at the particular trial. Sec G. O. 292 of 1863 ; Do. 64, Dept. of Ark., 1865 ; Do. 120, Dept. of the Mo., 1867 ; Do. 61, Dept. of the Platte, 1871. " Cire. No. 5, (H. A„) 1891. " See G. O. 3, 14, Dept. of the Mo., 1862 ; Do. 4, Dept. of N. Mexico, 1864 ; Do. 97, Dept. of Dakota, 1871 ; G. C. M. O. 54, Dept. of the Platte, 1876. "It is not unusual to head the proceedings of the successive days of a trial — "First Day " " Second Day," &c. So, the records of cases successively tried by the same court are sometimes endorsed as — " First Case " — " Second Case," &c. " " In every case the particular date of the first and each subsequent meeting should be stated in the record." Q. C. M. 0. 54, Dept. of the Platte, 1875, (Gen. Crook.) " Where all are present. It is indeed sufficient to states — " Present all the members of the Court, and the Judge Advocate." Circ. No. 5, (H. A.,) 1891. "See G. O. 3, Dept. of the Pacific, 1863; Do. 5, Dept. of La., 1868. In G. O. 37, Middle Mil. Dept., 1865, Gen. Hancock comments on an exceptional record ad follows : — " Cpon one day ' all ' are recorded as present j upon another ' all but one ; ' upon an- other • all but two ; ' no one is individualized, and the presumption is that certain members absent one day when testimony was received were permitted to act and take 506 MJUTABY LAW AND PEECEDENTS. Of course be glv.en, bpt a vari&nce in the desl^atlon of U\? rank of a member In any day's proceedings from the designation of the same In the convening Order occasioned hy the promotion or new a.ppointment nieanwlille of the mem- ber, win not affect the validity of. the proceedings, the member being otherwise sufficiently identified." Where, however, a member has been so promoted, &c., the fact should properly be noteid in; the prpceedingg of the day on which he first takes his seat with his new ranis. Other changes in the personnel of the members, as the relieving of old members or detailing of new ones, should be entered in the record of the pession at whlph the same are officially communi- cated to the court. 779 The presence of the judge advocate," and of the accused, (With that of the counsel, if any,) should also be particularized. Where a new judge advocate has been detailed, this fact and that of his attendance should be specified. On all days and occasions of the trial on which any material pro- ceeding is had or business is done, the accused,— unless he has wilfully absented himself, as by escaping from military custody or deserting the service, or has been obliged to be removed on account of drunkenness or disorderly conduct,"— is entitled to be present and his presence is essential to the legality of the proceedings and sentence."" When present, therefore, the fact of his presence should be affirmatively stated at the commencement of th,e record of the day's session, and not left to presumption." If absent, his absence should be similarly accounted for. If on the second or subsequent day, a quorum does not attend, or the judge advocate or accused is prevented by sickness or otherwise from being present, the record will properly specify who is absent, and will in general add that the members present adjourned on account of such absence. Members who first appear on a day subsequent to that of the original assembling will properly render some explanation of their previous absence, which will be entered In the proceedings for the information of the reviewing authority," and if sick- ness has been the pause a medical certificate will properly be furnished : " under similar circumstances, a similar excuse should be offered by the judge advocate, and recorded. Unless the court has been authorized, by the 780 convening of a subsequent Order, to "sit mthout regard to hours," 'Vie record will properly state the hour of assembling as well as of adjourn- ment on each day, so that it may appear that Art. 94 has been complied with: such statement, however, is not an essential, since, in the absence of evidence to the contrary, it will be presumed that the legal hours were observed. part In the. deliberations of tlie court on aubaequent days. Ttiis is Inexcusable negli- gence." Upon each day's record, all members of the court, both present and absent, should be duly accounted for. 6. C. M. O. 96, 99, 100, Dept. of th^ Platte, 1886. In Circ. No. S, (H. A.,) 1891, It is added — "When the -absence of an oflScer who hag not gualifled, or who has been relieved or excused as a member, has been accounted for, no further note will be made of it." " See G. O. 40, Dept. of Ark., 1864. " The presence of this official should not be left to be inferred from the fact stated of bis being sworn, or of his putting questions to the witnesses, but should be specifically declared: O. C. M. 0. 45, Dept. of Texas, 1874. " See Frendergast, 208. "G. O. 185, Dept. of the Ohio, 1863; Do. 81, Northern Dept., 1864; Do. 65, Dept. of Ark., 1865 1 DiQiBT, 642 ; Simmons | 470 ; Clode, M. I/., 139. And compare Long v. State, 52 Miss,, 23 ; Graham v. State, 40 Ala., 659 ; Witt v. State, S Cold., 11. "See authorities cited in l^stnote. "See G. O. 4, Dept. of N. Mexico, 1864; Do. 106, Dept of Dakota, 1871. "" If a member be detained from, the court by illness, be will properly, if practicable, forward such a cectttcate to tji* president of the court See G. C. M. O. 96, Dent, of the Platte, 1886. MnilTASY LAW AND PRECEDENTS. 507 Where adjournments are taken or continuances granted, their periods shonld be specified, and It should appear from the record that the court reassembled on the day thus fixed." A statement of an adjournment to the next or a suc- ceeding day should be noted at the end of ea,ch day's session. Where a con- tinuance is formally applied for under Art. 97, the written application, (see par. 1013, A. R.,) should be appended (or incorporated) and properly referred to; and if an issue is made upon the application, the particulars should be fully stated. Fjirther the record pf each day's session, after the first, will — If such was the fact— properly state at the opening, (though this is not an essential,) that the proceedings of the previous day's session were read and approved ; any correc- tions made upon such reading being specifically noted. STATEMENT AS TO CHALLENGES. Art. 88 entitles the accused to chal- lenge the members separately " for cause stated to the court." Par. 1037 of the Army Regulations directs that — " the record must show " that the accused " was asked if he wished to object to any member and his answer to such question." " It should thUs appear from the record that the Order or Orders con- vening the court and detailing the members present were read to the accused or communlca'ted to him and that he was afforded a full opportunity of challenge. If he responds that he has no objection to any member, the record should so state. If in answer he presents any specific objection or objections, the same, whether oral or in writing, should be given as made, and the proceedings 781 thereupon had as to each member (jbjected to, (as already indicated in Chapter XIV,) including the personal declaration, if any be made, of the member, and if issue be joined on the challenge, the argument or remarks of the judge advocate and of the accused or his counsel, with the evidence adduced if any, and finally the decision of the court in each case,— should be fully set forth. If a member be added to the court, subsequently to the organi- zation, the record should similarly show that the opportunity to object to such member was formally afforded the accused, with the proceedings had in case of challenge. The absence of an express declaration in the record to the effect that the accused was afforded an opportunity of challenge has, in some instances, been held fatal to the validity of the sentence ; in others, has been treated as ground merely for the disapproval of the proceedings. In the opinion of the author, such omission, though certainly a serious irregularity, does not— being an omission to comply not with a positive statute but with a directory regulation only amount to a fatal defect."" Of course, if it Is the fact that an accused was not afforded an opportunity of challenge, such fact, when ascertained, would constitute good ground for disapproval of the proceedings or sentence, or for a remission of the sentence if already approved. If, after opportunity for challenge has been duly afforded the accused, the judge advocate should object to a member or members on the part of the prose- cution, record will be similarly made of such objection and of the proceedings thereupon had. "In a case In G. O. 180, Fifth Mil. Diet, 1869, one of the grounds upon which the sentence was disapproved was that the court on one occasion reassembled on a day different from that to which It had specifically adjourned on a previous day. And see, to a similar effect, G. O. 5, Dept. of La., 1868. "When a challenge Interposed by the accused has been acted upon, the record will properly show that he was asked whether he had any "further" objections to the members, and his answer: See G. C. M. O. 67, Dept. of Dakota, 1882 „ , , , ■ In 3 Opins At. Gen., 397, the opinion Is expressed by Attorney General Grundy that " its not appearing on the record that the prisoner was asked If he had any objection to the members of the court would not be sufficient cause for setting aside the proceedings." 608 MHJTABT LAW AND PBECEDBITTS. Statement as to the qualifying of the members and judgre advocate, and organization for trial. Par. 1037, Army Regulations, directs that the record shall " show that the court and judge advocate were duly sworn In the pres- ence of the prisoner." The record should therefore so state, and a statement to this efEect Is sufficient without any recital of or reference to the form of the oath as prescribed by Arts. 84 and 85. The statement is to be made In each separate record, since the court and judge advocate are required to be sworn anew for each case tried." If an absent member is admitted, 782 or a new member added, or new judge advocate detailed after the original swearing of the court and judge > advocate, the record should similarly show that such member or judge advocate, before acting, was properly sepa- rately sworn." The form Af statement as to the administering of the oaths, most com- monly adoptedr is substantially that proposed by Judge Advocate General Holt, as follows: "The members of the court- were then severally duly sworn by the ju^ge advocate, and the judge advocate was then duly sworn by the president of the court; all of which oaths,, were administered in the presence of the accused." This Is a suitable form for inferior equally as for general courts. Where several persons arp to be - jointly arraigned and. tried, the record should specify that the oaths were administered in the presence of aU the accused. But while the above form Is to be recommended, any statement will prop- erly be deemed sufficient from which it can be ascertained or fairly presumed by the reviewing authority that the members and judge advocate were in fact qualified as required by the Articles of war prior to the arraignment. The omission of the term "duly," or of the words "In the presence of the ac- cused," has in some cases been held to vitiate the proceedings* and sentence, In others has been treated as ground merely for the disapproval of the same. In the opinion of the author, neither of these terms is essential. But to omit either would be to reject a form established by regulation and usage, and would incluce an uncertain and unsafe mode of statement of a material and important particular. It Is upon the due and formal swearing of a quorum of members that the court is, properly speaking, organized for the particular 'trial." After set- ting forth, therefore, the qualifying of the members and judge advocate, the record may well add a statement to the effect that — The court being duly organized then proceeded to the trial of the accused, (naming him,) upon the following charges and specifications. 78S Statement of charges, arraignment and pleas. The charges and specifications — originals or copies— including "additional" charges, if any, should then follow or be specificaUy referred, to as annexed to the pro- ceedings. The preferable form, and that almost invariably practiced, is to insert them in the body of the record at this point. Where— as Is more usual— a copy is given, the name of the officer by whom the originals were signed should appear at the foot. This is not indeed essential, but as a material part of the history of the prosecution, should not be omitted in a case of any Im- portance. If a copy be th us incorporated, the originals need not be appended. "G. O. 60 of 1873. Compare Coffin i>. Wllbour, 7 Pick 160 TvT ^i" ^ ^- ®! "/ t^^^L*^- ^- ^- "• ^^® °' ^««^ = «• '«■ *«' D^Pt- of tte East. 1864 ; Mlfis., 1865 ; G. O. 42, Dept. of the Tenn., 1863. Tf^, "";. ^'■°"' "^^'■' ^'««t«=-"Tlie record must show that the court was organized as the law requires." That is to say, that at least five members, accepted by the parties or beld competent on chaUenge, were duly sworn for the trial. MILITABY LAW AKD PRECEDENTS. 509 The recora will then proceed to state the fact of the arraignment of the accused upon the charges and specifications, and his pleas of Guilty or Not Guilty to the same respectively. Where the plea Is identical to all, it may be recited that—" to all of which charges," &c., the accused pleaded " Guilty " or " Not Guilty," or in terms to such effect. The approved form of statement, however, is to enter the pleas separately as made to each several charge or specification in Its order. If a special plea is Interposed at this stage,— as a plea to the jurisdiction, or a plea of the statute of limitations, of pardon, or of former trial,— the same should be specified with the grounds upon which it is based. If expressed In writing, the written plea will properly be incorporated in the record, or re- ferred to as annexed. The issue, if any, raised upon the plea, with the evi- dence, if any,== argument, and ruling of the court, will follow. If the plea be sustained, and the same has covered all the charges, the record will terminate with a statement of adjournment. If it be overruled, the next statement will regularly be that the accused was then called upon to plead to the merits, and pleaded accordingly, with a recital of the pleas as made. Should a motion— as a motion to strike out— be made at this point, the proceedings will be simi- larly set forth. If, upon arraignment, the accused stand mute, this fact, with the action thereupon taken as required by Art. 89, should be particularized. Statement of the testimony. The record must set forth fully and 784 Independently the testimony of each witness, "' specifying by which side- prosecution or defence— he is introduced, and that he is first duly sworn or affirmed as the case may be. The testimony should be given, not In mass, but In the form of separate answers to specific questions." The answers as recorded should be as nearly as practicable in the exact words of the witness, no matter how indefinite, disconnected, ungrammatical or inelegant the same may be." If the afiswers as rendered are liable to be misunderstood, the accused should be called upon in further questions to explain the obscure portions." For the judge advocate to assume to translate the testimony into what he considers elegant or correct English, or to substitute his own language for that of the witness, or to record only such testimony as he may deem material, or to abbreviate or summarize the testimony, — would constitute not merely a serious dereliction of duty on his part, but a very grave irregularity on the part of the court permitting it." Another grave irregularity would be to introduce into the record as evidence any oral statement other than the sworn testimony of witnesses present in " See 3 Oplos. At. Gen., 545. "A mere reference to tbe testimony of such witness, as taken In a similar case pre- viously tried by the same court, is of course wholly Insufficient. See G. O. 2, Dept. of the Pacific, 1863 ; Do. 29, Dept. of the Platte, 1869. (Remarks of Gen. Augur.) » G. O. 77, Dept. of the East, 1870. In G. O. 11, Dept. of the Platte, 1868, It was noticed as a serious irregularity that in the proceedings in several cases there was " an omission to record tbe questions propounded." Similarly In G. O. 8, First Mil. Dlst., 1868. *> Hough, (A.) 79, writes — " But to record at all times barrack jthraseolQgy Is not expected." And Coppfe, (p. 74,) — " In case the witness is a foreigner, bis idiomatic mistakes may be corrected in the record." But the only safe and accurate mode is to record tbe testimony precisely as given, calling upon the witness afterward to explain It, if necessary, or elucidating it by other evidence. " See last note. " An irregularity of this class, which has properly been pointedly condemned in several cases, is tbe omission to record in whole or In part the testimony of a witness on the ground that such testimony is merely corroborative of that of a previous witness. In a case in G. O. 192, Dept. of the Ohio, 1863, the proceedings were disapproved on account of sacb an omissiPD. Apd see Griffiths, 109. 510 MILITABT LAW ANI> PRECEDENTS. conrt — as a statement of, or reference to, anything said or done, by the accused or other person, out of court." Where any considerable amount of testimony has been given by a wit- 785 ness, especially where it has been taken down in shorthand, the record should show that it was read over to the witness, opportunity being afforded him to malte corrections, and pronounced by him to be correctly recorded. Where a deposition, or other written or documentary evidence, whether orighial or copy. Is Introduced, the same will in general preferably be marked and attached to the record as an exhibit, proper reference being made thereto in the body of the proceedings." A brief writing, however — as a simple post or field Order, short letter, &c. — may well be copied into the record of the day's session, the original. If such be Introduced, being annexed at the end and so Indicated. Wherever the admission of evidence is objected to, the nature of the objection should be stated, with the discussion, if any, had, and the ruling of the court upon the issue. The character of evidence which is ruled out should appear as fully as that of evidence which is admitted." A clearing of the court for deliberation upon an objection to testimony, with the subsequent reopening, should be specifically noted." It Is naturally In the admission and exclusion of evidence that a court- martial should be most frequently led Into error; and, upon extended trials, the proceedings are not unfrequently encumbered with a mass of mat- 786 ter,, admitted especially on behalf of the accused, from which a careful consideratton of the rules of evidence would have relieved the record without prejudicing uefence or prosecution." It is usual and convenient to specify in the record the fact of the closing of the testimony on the part of the prosecution, and Its opening on the part of the defence. , , . . ; , f » See G. C. M. 0. 4X, Dlv. AtlanOc. 1886. " As to the making up of Exhibits with the record, see par. 1038 Army Begs. ; also (J. C. M. O. 80 of 1875, which directs as follows : — "All papers received in evidence, and otbo: exhibits, should be securely attached to the record, but In such a way that they can be freely read, in the order In whlcb they are received, and distinctly numbered so as to facilitate reference to them." Failure to attach writings Introduced in evidence has been frequently remarked upon in Gen. Orders. The omission seems to have more frequently occurred where the writing was an extract from a book — as a Morning Report Book, Clothing Book, &e. In such cases, an abstract of so much as relates to the otCence charged, and Is actually put In evidence, should be entered in the body of the record or attached as an Exhibit. 6. O. 63, Dept. of the East, 1864 ; G. C. M. O. 49, Dept. of the Mo., 1875. The rule applies equally to writings introduced in proof of good char- acter — as testimonials, honorable discharges, &c. Copies of such should properly be appended at the end of the record. G. C. M. O. 1, Dept. of the Platte, 1880 ; Do. 64, Dlv. of Pacific & Dept. of Cal.,. 1881. "See Lieut. Col. Fremont's Trial, p. 240. The court has of course no power to exputlge as Inadmissible or lmpro>per any evidence dilly recorded. Capt. Barron's Trial, p. 47. *■ And so of the clearing and reopening wherever deliberation la had upon any inter- locutory question Whatever. ""The 171 pages of record In this ease are replete with errors. The ruling out of legitimate testimony and the ruling In of matter wholly irrelevant occurs again and again. The court seems to have lost sight at times at the specific charges com- mitted to It for Investigation ; the consequence Is a record overburdened with many pages of matter foreign to the case. The latitude of investigation and comment by the defense permitted by the court is deemed to exceed anything justified by the custom of the service or the demands of Justice. For these and other reasons not necessary to enumerate, the proceedings, findings and sentence are disapproved." G, C. M. O. 78, Dept. of Dakota, 1892. (Gen. Meiritt.) MILITABY LAW AND PRECEDENTS. 511 Where no evidence Is introduced by the accused, It should appear that he was afforded an opportunity to make a defence by being called upon to offer testimony, and that he declined to do so. Where also the accused or the judge advocate declines to cross-examine a witness examined in chief by the other, this fact will properly be noted." Where the accused himself takes the stand, his testimony should be taken and recorded as fully, and in the same manner and form, as that of any other witness, and it should properly be stated in the record, in view of the provision of the Act of March, 16, 1878, c. 37, that he is introduced as a wit- ness for the defence at ftis own request." If a witness is examined through an interpreter, the record should state the occasion therefor — as that the witness is a foreigner who does not speak English or speaks it but imperfectly, specifying also the fact of the swear- ing of the Interpreter." Statement as to closing arguments or addresses. The record 787 will, in general, next set forth the written or verbal statement, address, or argument of the accused, if any Is made, as well as that oi the judge advocate if he adds one. Written statements are almost uniformly appended at the end of the proceedings; verbal ones are more commonly inserted in the body of the record. If the accused elect not to make a state- ment, the record will properly so specify. Statement of the clearing of the court for deliberation. Where the court Is thus cleared, whether upon an interlocutory issue — as the sufficiency of a special plea or motion, the admissibility of testimony, the granting of a con- tinuance, &c., or upon the finding or sentence — 'the fact and the occasion of the clearing should be specified, and, in view of the enactment of July 27, 1892, it should be added in terms that the judge advocate withdrew. — In a Circular of 1892 " are given convenient forms for recording the closing and reopening of a court-martial, adapted to the requirement of the statute. An omission of such formal statements, however, will not affect the validity of the proceedings. " When the record shows that the court was 'closed,' the pre- sumption of law is that it was closed in accordance with the requirements of law." " Statement of finding and sentence. The statement of the Finding will preferably set forth the findings on all the charges and specifications sepa- rately in order, although the finding upon each may be identical. The find- ings, where other than simple verdicts of Guilty or Not Guilty, should be given with their qualifications, exceptions and substitutions, if any." The statement of the sentence is the part of the record in which a failure to be accurate may most easily defeat the intention of the court* Care should « G. O. 18, 31, Dept. of Cal.-, 1872. • G. C. M. O. 13, Dept. of Texas, 1882 ; Do. 3 Id., 1886 ; Do. 41, Dlv. Atlantic, 1886. *> A form of oath to be administered to an interpreter is given in Circ. No. 12, (H. A.,) 1893. The proper statement In the record would be that be was iuly sworn to truly interpret in the co«e now in hearing. "No. 12, (H. A.) "Circ. No. 13, (H. A.,) 1892. "Omissions to state or fully state findings have in some cases induced a disapproval of the proceedings; in others a ruling that the proceedings were thus rendered invalid In law. In G. O. 292 of 1863 the sentence was disapproved, and, in Do. 297, Id., held inoperative, because of inconsistency betweep the findings on the charges and those on the specifications. " See cases in G. O. 25 and 42r Dept. of Dakota, 1868, of sentences disapproved as in- operative beckuse failing to specify, the one the tetm of an Imprisonment Imposed by the court, and the other the period for « forfeiture of pay. 512 MILITABT LAW AND PRECEDENTS. 788 especially be taken that there be no material variance In the name of the accused between the sentence and the specifications." Except In the single instance of a death sentence, where, in view of the terms of Art. 96, it may be, and in practice is, added in the sentence that two-thirds of the members concurred therein, no reference whatever to the vote of the members by which the finding or sentence was determined upon is to be made in the record. A statement that the finding or sentence was " unanimous " would be a gross, and now most exceptional, irregularity. Where the vote on a charge or specification is a tie, this fact of course is not to be stated, but an entry simply of Not Guilty is to be recorded." As has already been noticed, tile findings and sentence must be entered In the handwriting of the judge advocate as the official recorder. They cannot properly be printed with a typewriter." It need hardly be added that nothing in the nature of a protest by a mem- ber or members, against a finding or the sentence of any action of the court, can properly be entered upon or attached to the proceedings." Statement of previous convictions. Where, in the case of an enlisted man, there has been a conviction of an offence " admitting of the introduc- tion of previous convictions," the fact of the opening of the court "for the purpose of ascertaining whether there is suci evidence, and, if so, of hear- ing it,"" should clearly appear from the record, and the presence of the accused and the judge advocate should be noted. If such evidence be Intro- duced, the records of trial, or orders of promulgation presented, should be appended as exhibits with the proper reference thereto in the body of this part of the proceedings. If the evidence is excepted to by the accused, 789 the nature of the objection and particulars of the issue should be fully stated. At the end of this stage, the re-closing of the court— the judge advocate and accused withdrawing — should be duly minuted. Authentication of the record. It is directed by par. 1037, Army Regula- ations, that— "The record will be authenticated by the signatures of the president and judge advocate in each case;" and the mere affixing, at the conclusion, of these signatures will be a sufficient authentication. More arti- ficially, the record Is well authenticated by adding to the same, at the end of the final proceedings had, some such form as— 4 true and complete record Attest: A. B., President; CD., Judge Advocate." Where the president or judge advocate has been changed pending the trial, it is of course the one officiaung at the time of the authentication who is to subscribe the same" The authentication should, regularly, be executed in the presence of the court before the final adjournment, and as a part of the proceedings Where the proceedings have been formally duly authenticated, and the record is subsequently returned for correction, and additional proceedings are thereupon had, it will be regular and proper to repeat the form of authenti- cation at the end of such additional proceedings." "G.- c'm: r/r :f x^^Tif^x^'V^o/isTl- ^- ''' °^^^ "' ^--' ''-''■' °— ' ««• ^X:tZcL'l^L^'''' ^- "■ ^- «• "' ^«P*- "^ '^^ Columbia. 1892; Do. 27. "See Chapter XIX— " Protest." " G. O. 64 of 1892, set forth In Chanter TCi-x •• t»^„ i . ... Convictions." "mm chapter XIX— Receiving of evidence of Previous Deptt o";20.T8'5" ATtaternt'o "at f^ "' "''""'"""• ^^ ^'""'^ <" ^-"^^ has someUmL been employed aT a form otLZZ'^'^r*' k'^°'^ '" '"""'^ *^° °»^^". such. That such statement is itseW without le^I^ sii^ifl '"'' V t "''"'' °"* P'°P«^'' - s>ee Par. -085, A. R. ' -See Simmons $ 74i-4; Gorham, 69; also Rules of Procedure, 04, 98. MILITARY LAW AND PRECEDENTS. 515 regular In substance and legal in fact." As to any action Indeed pro- 793 vlded by statute to be taken by the court, the record should clearly Indicate that such provision has been complied with, but that It does so in bald and Imperfect terms will not In general affect the validity of the proceedings or judgment, since the law will presume that what is stated to have been done was duly done. And the presumption will be stronger as to a particular called for by a directory regulation or by usage only. Thus where — as more frequently occurs in the hurry of time of war — the statements and recitals of a record of a legal court-martial are incomplete or otherwise defective, it will not necessarily result that the validity of the sentence ad- judged is to be held to be fatally afEected. If only the acts and functions required of the court by the Articles of war or other . statute are found to have been substantially observed and performed, the law will in general presume that the details of the proceedings were due and sufficient, and a failure of justice thus be obviated. Thus, If a record, In the statement of the swearing of the court, &c., omits to specify that it, (or the judge advocate,) was sworn "in the presence of the accused," as it is directed by the Army Regulations that the record shall " show," and merely states that it was " duly sworn " or simply " sworn,'" the legal validity of the proceedings will not, in the author's opinion, be affected, but it will be presumed that the swearing was according to law and sufficient. Otherwise," however, where there is an entire absence of state- ment as to the fact of swearing ; since the statute — ^Arts. 84 and 85 — certainly contemplates that the court and judge advocate shall be qualified by a formal oath." Defects, though occurring in material parts of the proceedings, if amounting, when taken into consideration with the entire record, to defects of form merely, will properly be regarded as only irregularities, not affecting 794 the legal validity of the recorded proceedings. In a leading case on this subject before a TJ. S. Circuit Court, where the record failed to show any arraignment or plea, but the issue of guilt was fully made before the jury and a fair trial had, such defect was held, under the circumstances of the case, to be one of form merely, not entitling the accused to a new trial." " As to this presumption of " omnia rite acta," in civil cases, see Slade v. Minor; 2 eranch C, 139 ; Button v. Blaine, 2 S. & E., 75, 79 ; Moore v. Houston, 3 Id., i97 ; Trinity Church v. Higglns, 4 Eobt., 1 ; Edwards v. State, 47 Miss., 581. As to mili- tary cases, see Bex v. Suddis, 1 Bast, 315 ; Porret's Case, Perry, 419 ; Digest, 648-9, note ; Chapter V, p. 60, ante. "Thus it has been held In clrll cases that, where the record simply showed that the Jury had been sworn, it was to be presumed that the swearing was in legal form, or "according to law." Edwards «; State, ante; Dyson •». State, 26 Miss., 362; Trinity Church v. Higglns, 4 Eobt. ; 1 Hough, (P.,) 759. •» Here the niaxim of the law will apply, that what does not appear at all will be considered as not having existed or been done. See 3 Optns. At. Gen., 396. That an absence from the record of any statement or indication that the court or Judge advo- cate has been sworn at all, will invalidate the sentence, unless the omission can be supplied upon the revision, has been repeatedly held. 3 Opins. At. Qen., 396, 544; G. O. 32 of 1863 ; G, C. M. O. 21, Dept. of the Columbia, 1880. •• U. S. V. MoUoy, 81 Fed., 20. And see Sec. 1025, Eev. Sts. CHAPTER XXIV. COURTS OF INttUIRY. 795 The subject of this Chapter will be considered under the following heads-— I The Law relating to the Court of Inquiry; II. Its Nature, in general; III. Its Constitution; IV. Its Compositipn; V. Its Function; VI. The Recorder; VII. Procedure; VIIl. Action on the Proceedings; IX. The Proceed- ings as Evidence I. THE LAW ON THE SUBJECT. ABTICLES or WAB. The law relating to Courts of Inquiry— as derived with but slight modification from the provisions of the Articles of 1786'— is almost entirely contained In the seven Articles of the existing code, from the 115th to the 121st, as follows : "Abt. 115. A court of inquiry, to examine into the nature of any transaction of, or accusation or imputation against, any offlcer or soldier, may be ordered by the President or by any commanding offlcer; but, as courts of inquiry may be perverted to dishonorable purposes, and may be employed, in the hands of weak and envious commandants, as engines for the destruction of military merit, they shall never be ordered by any commanding officer, except upon a demand by the offlcer or soldier whose conduct is to be inquired of. •• Abt. 116. A court of inquiry shall consist of one or more offl^ers, not exceed- ing three, and a recorder, to reduce the proceedings and evidence to writing. 796 "Abt. 117. The recorder of a court of inquiry shall administer to the members the following oath: ' You shall well and truly examine and in- quire, according to the evidence, into the matter now before you, without par- tiality, favor, affection, prejudice, or hope of reward: so help you Ood.' After which the president of the court shall administer to the recorder the following oath: ' Tou, A. B., do swear that you will, according to your best abilities, ac- curately and impartially record the proceedings of 'the court and the evidence to be given in the case in hearing: so help you God.' " Abt. 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 taken by witnesses before courts-martial, and the party accused shall be per- mitted to examine and cross-examine them, so as fully to investigate the circumstances in question. " Abt. 119. A court of inquiry shall not give an opinion on the merits of the case inquired of unless specially ordered to do so. " Abt. 120. The proceedings of a court of inquiry must be authenticated by the signatures of the recorder and the president thereof, and delivered to the commanding offlcer. > Prior to this date, Courts of Inquiry In the army were sometimes ordered by Com- manders under their general authority as such, and on a few occasions were directed to be convened by Resolutions of Congress. See, for example, the case of the Inquiry directed by Congress to be ordered by General Washington into the conduct of officers " in the Canada Department " and other Instances, in 1 Jour. Cong., 384, 427-8 ; 4 Do., 625.. 516 MILITARY LAW AND PRECEDENTS. 517 " A«T. 121. The proceedings of a court of inquiry may- be admitted as evidence by a court-martial, in caseg not capital, nor extending to the dismissal of aw offlcer: provided, that the drcumstances are such that oral testimony cannot be obtained." OTHER STATUTES. The Act of March 16, 1878, c. 37, which enables " the person charged " to testify as a witness before " courts-martial and courts of inquiry," Is the only existing statute, (other than the Articles of war,) relating in terms to these courts. The provision of Sec. 1203, Eev. Sts., empowering " the judge advocate of a military court " to " appoint a reporter who shall record the proceedings of and testimony taken before such court," though not in terms applying to cases before courts of Inquiry, has, in practice, been viewed as authorizing recorders of such courts to make such appointment. Sec. 1202, Rev. Sts., by which " every judge advocate of a court-martial " is empowered to issue process to compel the attendance of witnesses, applies in its terms still less than Sec. 1203 to recorders of courts of inquiry, and cannot, in 797 the opinion of the author, legally be extended to the latter.' A statute authorizing a restraint of the liberty of the citizen Is to be strictly construed. THE BBITISH LAW. The law in regard to the British court of inquiry— a body of inferior scope and powers as compared with the same court under our code — is mainly contained in the 123d of the Rules of Procedure.' II. THE NATURE OF THE COURT. AS DISTINGTJISHED FBOM A COTTBT-IiIABTIAIi. The court of in- quiry, so called, is really not a. court at all. No criminal issue is formed before it, It arraigns no prisoner, receives no plea, makes no finding of guilt or inno- cence, awards no punishment. Its proceedings are not a trial, nor Is its opinion, (when it expresses one,) a judgment. It does not administer justice, and is not sworn to do so, but simply to ." examine and inquire." * It Is thus not a Court but rather a Board ' — a board of investigation with the in- 798 cldental authority, (when expressly conferred upon it,) of pronouncing a conclusion upon the facts. But, as it is a sworn body, and as the wlt- ' The original statute, — a provision of the Act of March 3, 1863, c. 75, — read : " Every judge advocate of a court-martial or court of inquiry." The words " or court of inquiry " were omitted hy Congress in enacting the Revised Statutes. See Chapter XIII. ' See also (In Appendix) Army Act ! 72, and Rule of Procedure 124, as to the special court of Inquiry for the investigation of cases of unauthorized absence. * As to its nature, compare Adye, 83 ; Delafons, 46 ; Tytler, 343-346 ; Simmons S 334 ; Hough, 28 ; Harcourt, 173-4 ; Hughes, 160 ; Fonblanque, 220 ; Maltby, 137 ; De Hart, 273-4 ; 3 Qreenl. Ev. f 475 ; Digist, 135-6 and note ; Trial of Capt. D. Porter, (Navy.) p. 10. In the British Rules of Procedure, 123 (D,) It is said : — " A court of inquiry has no Judicial power, and is in strictness not a court at all, but an assembly of persons directed by a commanding offlcer to collect evidence with respect to a transaction into which he cannot conveniently himself make inquiry." In U. S. v. Clarke, 3 Fed., 710, it was held that a report of a military court of inquiry, exonerating an enlisted man from liability in connection with an act subsequently charged before a civil tribunal as murder, (not being a finding of a trial court,) could not be pleaded In bar as an ac- quittal before such tribunal. The ruling of the court in this case, however, is placed upon a different ground, elsewhere considered. 'Sennedy, 239; Copp^e, 95; Diobst, 135, note. In Simmons S 334; Harcourt, 174, and Griffiths, 133, it is styled a " council." In the late case of The W. B. Chester's Owners v. U. S., 19 Ct. 01., 683, the court say : — " A naval or military court of Inquiry la not a judicial tribunal. It is instituted solely for the purpose of investigation, as an assistance to the President, the head of the Department, or the commanding offlcer. In determining whether or not any further proceeding, executive or judicial, ought to be taken In relation to the subject-matter of the inquiry. There Is no issue joined iMtween parties, and Its proceedings are not judicial." 518 MILITABY LAW AND PRECEDENTS. nesses before it are sworn and examined and cross-examined as before courts- martial, it is a Board of a higher sort In the nature of a court, and has thus come to be termed a court in the law military. ITS CHABACTEB AND SIGNIFICANCE ILLUSTRATED. But the court of inquiry, though only a quasi judicial body, is an instrumentality of no little scope and importance; its investigations are frequently much more extended and its conclusions more comprehensive than would be those of a court-martial in a similar case ; and, in individual instances, its results may be scarcely less final than if it had the power to convict and sentence.* It is mainly, however, as contributions to history or to the annals of the Army, that the researches of the courts under consideration are significant and valuable. Thus among the courts of inquiry held in our army of which the reports have proved to be im- portant State papers, may be cited the following: — That convened In the case of Major John Andr4, Adjutant Gteneral to the British Army, by General Washington as Commander-in-chief, on September 29, 1780, under the name of a " Board," and consisting of six Major Generals, [Greene, (the president,) Lord Sterling, St. Clair, the Marquis de la Payette, Howe, and the Baron de Steuben,] and eight Brigadier Generals, [Parsons, Clin- ton,. Knox, Glover, Patterson, Hand, Huntington, and Starke,] with John Law- rence, Judge Advocate General, as recorder, and .directed " to report a precise state of the case," with an "opinion of the ligh't in which he (Andrg) ought to be considered and the punishment that ought to be inflicted." The Court, after considering the evidence, reported a statement of the 799 facts found, with an opinion that the accused " ought to be considered as a spy from the enemy, and that, agreeable to the law and usage of nations, he ought to suffer death :" ' That convened in 1791, by direction of the President, in the case of Brig. Gen. Harmar, to inquire into his conduct as commanding oflBcer on the expedi- tion against the Miami Indians in 1790 : ' That convened by President JefEerson in 1808, in the case of Brig. Gen. Jas. Wilkinson, to investigate the charge of his having co6perated with the Spanish government of Louisiana adversely to the United States. A trial by court-mar- tial followed in 1811, at which he was fully acquitted : * That convened by an order of President Madison of January 21, 1815, In the case of Brig. Gen. W. H. Winder, to inquire into his conduct as commanding officer of the U. S. forces during the British attack on Washington In August, 1814: That convened by President Jackson, at Frederick, Maryland, In November, 1836, to inquire into " the causes of the failure of ,the campaigns in Florida against the Seminole Indians, under the command of Gens. Gaines and Scott," and also into the campaign against the hostile Creeks : " That convened by President Van Buren, at KnoxviUe, Tenn., in September, 1837, " to examine into the transactions of Bvt. Brig. Gen. Wool, and others •As where the report of the court has served as the groand and occasion for the snm- rr-ff'^sT^ ?. r«° T- ^^""' ^^^-^- P^«"J"8«st, 211. And see cases In G. O. 15 of 1835; Do. of Nov. 23, 1844; Do. 183 of 1862; Do. 12, Dept. of the Tenn., 1863. i^H^/f ^"fl "T""' "' *"" "^*'' "'«• ^"•^•> Co^P"" "^l"" ">« ™=°lt m the case of tloLlZl\ 7^° ^Z ^°^ "^ * 'P^ °° ""* '"""•' "l^y ^ft^-^ «»e conclusion of the proceedings of the court of Inquiry. 'Proceedings published, Philadelphia, 1780; reprinted, Albany, 1865 ■American State Papers, Military Affairs, vol. I. pn 20-38 ' G. O. of Feb. 14, 1812. "G. O 13, of March 21, 1837; Doc. 224, Senate. 24th Congress, 2d Session And see American State Papers, Military Affairs, vol. VII, pp. 125-465. session. Ana Mn^ITARY LAW AND PBECEDENTS. 519 of his command, in reference to his and their conduct in the Cherokee coun- try:"" That convened In Mexico, by G. O. 186, Hdqrs. of the Army, 1847, at the instance of Brig. Gen. Worth, to inquire into certain matters connected with the capitulation of Puebla, In which he conceived himself Injured by Gen. Scott. That convened in 1848, In the City of Mexico, In the case of Maj. Gen. 800 Pillow, which investigated charges preferred against that officer by MaJ. Gen. Scott, in regard to official reports made by the former of the battles of Contreras, Churubusco, &c. : " " That convened by the President at Washington, in September; 1862, " to In- vestigate the circumstances of the abandonment of Maryland Heights and the surrender of Harper's Ferry : " " That convened by the President, by Special Orders No. 356, of November 20, 1862, at Cincinnati, Ohio, " to investigate and report upon the operations of the army under the command of Maj. Gen. D. O. Buell, U. S. Vols., in Kentucky and Tennessee : " " That convened by Special Orders No. 350, Headquarters of the Army, 1862, to inquire into the conduct of Maj. Gen. McDowell as a general officer during the first year of the late war : " That ordered by the President, by S. O. 217 of 1868, in the case of Brig. Gen. Dyer, Chief of Ordnance, which was charged especially with the duty of examin- ing into certain accusations made against that officer in a report of a Com- mittee of Congress : " That ordered by the President, by S. O. 35 of 1874, in the case of Brig. Gen. Howard, under the provisions of a Joint Resolution of Congress of Feb. 13, 1874, and directed, as required by the Resolution, " to fully investigate " certain indicated charges agafnst said officer, " and to report their opinion, as well upon moral as upon technical and legal responsibility for such of- fences, if any, as may be discovered : " " That ordered by the President, by S. O. 277 of 1879, In the case of Lieut. Col. Warren, Corps of Engineers, "for the purpose of inquiring Into his conduct as major general commanding the 5th Army Corps, at the battle of Five Forks, Virginia, on April 1, 1865, and into the operations of his command on that day and the day previous : " " 801 That convened by direction of the President, by S. O. 241, of October 31, 1883, "to investigate the organization and fitting out of the Greely relief expedition party, transported by the steamer Proteus : " " That convened by direction of the President, by S. O. 93, of 1884, to investi- gate certain charges, preferred by a civilian, A. E. Bateman, against Brig. Gen. D. G. Swaim, Judge Advocate General of the Army, the report of which "G. O. 63, of Oct. 2, 1837; American State Papers, Military Affairs, vol. VII, pp. 532-571. " G. O. 40, of July 2, 1848. " G. O. 183, of Nov. 8, 1862. This court was designated a " Military Commission." "The proceedings were never promulgated In Orders. " Rebellion Kecord, Series I, Vol. XII, Part I, pp. 36 to 332. "G O. 51, of May 15, 1869. Proceedings printed at Govt. Printing OfHce, 1869. " g! O. 76 of 1874 ; Proceedings printed at Govt. Printing Office, 1874. "GO 132 of 1882; Proceedings printed at Govt. Printing Office, 1883. " " Proceedings of the ' Proteus ' Court of Inquiry on the Greely KeUef BxpedlUon." Govt. Printing Office, 1884. 620 MtLiTABY Law and peecedents. formed the basis of the subsequent court-martial proceedings published In G. C. M. O. 19 of 1885.'° 802 III. ITS CONSTITUTION. ATTTHOBITY OF COUICANSINO OFFICES AITD FSESIDENT BE- SPECTrVELT. It Is provided, as has been seen, in Art. 115 that — "A court of inquiry may be ordered by the President or by any commanding oiflcer," but, for a certain reason stated,'' "shall never be ordered by a commanding officer except upon a demand by the officer or soldier whose conduct is to be inquired of." The comprehensive designation — " any commanding o£9cer " " indicates that the authority to constitute courts of inquiry Is not necessarily restricted, as has sometimes been supposed,'' to commanders vrbo would be authorized to convene courts-martial in the same cases, but properly includes any and every " commanding officer," ak the term Is understood in the service ;"* the power conferred being thus made incident to distinctive command as such. Thus the commander of a district, post, regiment, or Independent company or detach- "Tbe proceedings of the court of Inquiry are contained in a volume published at the Govt Printing Office, 1884. Among other important courts of inquiry In the army may be mentioned those in the following cases ! — Case of Lieut. Lane, charged with assaulting a member of Congress. (G. O. 15 of 1835.) Case of Private Delap, involving a construction of the present Thirtieth Article. (G. O. 13 of 1843.) Case of Capt. P. S. Cooke, 'relating to protection given to traders in Texas. (G. O. 6 of 1844.) Case of Asst. Surg. Byrne, relating to a collision between him and Surgeon General Lawson. (6. 0. 42 of 1849.) Case of Col. D. S. Miles, charged with misconduct at the battle of Bull Bun. (G. O. 42, Army of the Potomac, 1861.) Cases of a Colonel and a Captain of Vols., charged with misconduct at the same battle., (G. O. 30, Dept. of N. H. Va., 1861.) Case of Brig. Gen. Martlndale — ^inquiry into a charge preferred against him by MaJ. Gen. Porter. (G. O. 178 of 1862.) Case of the burning of the steamer Euth. (Q. O. 344 of 1863.x Cases of certain corps, &c., commanders, as to their conduct in the battles of Sept. 19th and 20th, 1863. (Court ordered in Q. O. 322 of 1863. Besult not promulgated.) Case of members of the 109th Ills. Infy., charged with disloyalty. (G. O. 12, Dept. of Tenn., 1863.) Cases of Col. A. A. Gibson, 2d Pa. Arty., and Col. C. M. Alexander, 2d Dist. Col. Vols., as to details of the command and discipline of their regiments, &c. (G. O. 22, 139, Dept. of Washington, 1864.) Case of an inquiry into the transactions of the commanding officer in charge of the Hualpai Indians in Arizona in 1874-5. (G. O. 6 of 1876.) Case of Lt. Col. Eddy and Capt. liartln, Quartermaster Dept., as to the administration of the Q. M. DepSt at San Francisco, and certain frauds committed therein. (G. O. 10 of 1877.) Case of Major Emo — as to his conduct at the battle of Little Big Horn River, on June 25th and 26th, 1876. (G. O. 17 of 1879.) Case of an inquiry instituted on the application of Col. B. A. Carr, as to a hostile expedition against Apache Indians in August, 1881. (G. O. 126 of 1882.) Case of an Inquiry into the administration of the post of Fort Coeur d* Alene, between 1879 and 1886. (G. O. 47 of 1887.) Case of an Inquiry Into matters connected with the administration of the affairs of the 11th Light House District, by Major William Ludlow, Corps of Engineers. (S. O. 302 of 1892.) Also courts of inquiry held in the cases of officers charged with the shooting, &c., and killing of mutinous or insubordinate inferiors, mostly in time of war, and of which conclusions are published in the following Orders : — G. O. 29, Dept. of N. B. Va., 1861 ; Do. 46, Army of the Potomac, 1862; Do. 30, Banks' Division, 1862; Do 5 Dept of N. Mexico, 1863; Do. 76, Dept of W. Va., 1864; Do. 20, Dept. of the Platte, 1871. With which see O'Brien, 76, as to case of Col. Parrish, Florida, 1836. Other courts of inquiry than those here specified will be noticed in the course of the Chapter. Pro- ceedings of Important Courts of Inquiry In the Confederate States army are published in G. O. 19, A. & I. 6. C, Richmond, 1861 ; Do. 28, 108, Id., 1862 ; Do. 81, 152, Id., 1863. » In 8 Opins., 342, Atty. Gen. Cushing comments forcibly on this part of the Article, concluding with the expression of opinion that " the reflection on officers of the army " contained in it is " unjust and out of place." " A similar designation is employed in the Sritish law. Rules of Procedure 123 " G. O. 78 of 1880. " For a definition of this term, see Chapter IX—" By whom arrest is to be imposed." MILITARY LAW AND PRECEDENTS. 521 ment, may order this court with the same legality as may the commander of a department or army. The exercise, however, of such authority on the part of an Inferior commander, or in a case of a soldier, is of rare occurrence In our service." 808 The authority, hovcever, of the commanding officer is not unqualified, but subject to the limitation prescribed in the last clause of the Article ; it can be exercised only conditionally upon the court being " demanded " by the Interested party. It is the President alone whose authority under the Article is absolute, and he may avail himself of this authority either by himself con- vening the court in Orders from the War Department, or by directing the same to be convened by a military commander. BISCBETION OP CONVENINa OFFICIAL. But the exercise of the authority, whether absolute or conditional, is discretionary. Neither the President nor a commanding officer is oliUged to order the court under any circumstances ; the question whether or not a court shall be ordered In a particular case being one to be determined, not merely by the wishes of the aggrieved party, but also and mainly by such considerations of expediency or justice as may address themselves to the superior. The word " demand," as employed in the Article, does not imply a right on the part of the officer or soldier, but is to be construed as synonymous with requested or applied for. It is optional, therefore, with a commanding officer to refuse the application ; but, in the event of such refusal, the party, if not satisfied, may appeal to higher autliority, as in any other case of an official request not granted by an imme- diate commander. Applications for courts of inquiry are in fact not unfre- quently refused, on the ground that to order the same would be opposed to the interests of the service. THE CONVENING ORDER, &c. The form of constituting a court of In- quiry Is by a GMieral or Special Order, similar to that employed for ordering a court-:jiartial and detailing the members; the only difference being that. In lieu of a reference to a trial or trials to be had, the Order specifies a charge, subject, or question to be investigated, and further directs either that the court shall report the facts aloue, or the facts with Its opinion thereon, — with such additional orders or instructions, if any, as It may be deemed proper to subjoin. At any subsequent state of the Inquiry, a supplemental Order may be issued by the convening authority, relieving a member, detailing a new mem- 804 ber or recorder," adding to or modifying the Instructions originally given," changing the time or place of meeting, &c. IV. ITS COMPOSITION. ART. 116. This Article provides that: "A court of inquiry shall consist of one or more officers, not exceeding three." As to the word " officers " — ^what has been said in the Chapter on the Composition of General Courts-martial, in construing the same word as employed in Art. 75, will be for the most part applicable here. NUMBER OF MEMBERS. A detail for the court of less than three com- missioned officers has been of the rarest occurrence in our service."" In a few »The proceedings of a court of Inquiry in the case of an enlisted man, charged with killing a public horse by hard riding, are published In G. O. 27, Dept. of Cal., 1867. « " It Is not absolutely necessary that the same members should go through the whole of the inquiry." Harcourt, 174. And see Simmons § 333 ; De Hart, 277, note ; Hard- wood, 161. " See Coppee, 98. " A court of inquiry with but one member is convened by G. O. 36 of 1837. 522 MILITAEY LAW AND PBECEDENTS. cases Indeed— aa in the case of the court convened upon the appUcatlon of Gen. Warren— a court originaUy composed of three members has been reduced to two ln,the course of its investigation, and has gone on and concluded with that number. In the case of Andr6, the court, (convened before the enactment of the Article fixing the number,) was, as has been seen, composed of fourteen members. In the recent case of Gen. Howard, above noticed, it was specially provided In the Joint Resolution that the court should "consist of not leee than five officers," and it was in fact constituted with seven members." BANK OF MEMBEBS. On this point the law is silent. Art. 79, In pro- viding that " no officer shall, when it can be avoided, be tried by officers in- ferior to him in rank," applies of course only to courts-martial. Its injunc- tion, however, vyill naturaUy and properly be observed in composing courts of inquiry, so far as the exigencies of the service will permit V. ITS FUNCTION. IN WHAT IT CONSISTS. The function of the court of inquiry 805 In our service appears from Arts. 115 and 119. In the former its general purpose is Indicated to be — " to examine into the nature of amy trams- action of, or accusation or imputation against, any officer or soldier." By the latter, It is required to " give an opinion on the merits of the case," when " specially ordered to do so." THE INVESTIGATION. The subjects of investigation contemplated by the Article are of two general descriptions: — transactions of officers or soldiers, a comprehensive term which may include any acts whatever, though commonly- confined to acts of a supposed questionable or exceptional character; and accusations or imputations, that is to say charges of crime or misconduct, either direct and specific, or indirect and Informal, and proceeding from any com- petent or respectable source. More particularly, however, there are three" principal uses and purposes for which investigations by courts of Inquiry are resorted to in practice, as follows : — 1. Eor determining whether there should be a trial by court-martial In a particular instance. As where accusations have been made, or circumstances of a criminating character have been reported, against a certain military per- son ; " or where, a crime or disorder having apparently been committed by several military persons, it may be doubtful what particular individual or individuals may be implicated or punishable ; — ^In such cases a court of inquiry may often profitably be convened with directions to report all the facts, and, (as is generally required,) to express also an opinion whether or not a court- martial should be ordered for the trial of the person or persons accused or found chargeable. The court of inquiry, when acting In this capacity, has been frequently compared to a grand jury;" but, as the party whose conduct is " The British law simply provides that the court " may consist of any number " of officers, (Rules of frocedure, 123 ;) hut the number has generally been three or five. In the Inquiry upon the Cintra Convention, in 1808, and also in the case of Col. Home, (Home v. Bentinck, 2 Brod. & Blng., 131,) the number was seven. " See 6 Oplns. At. Gen., 239. »»The ground of complaint may be advanced by oiviUans. See an old case In G. O., Hdqrs., Newbury, June 19, 1782, of a court of Inquiry ordered "to inquire into the causes of a complaint exhibited by citizens of the State of Pennsylvania," against certain officers and soldiers. And see case of Gen. Swaim, ante, p. 519 ; also case in Q. O. 47 of 1887. i= See Adye, 54, 172 ; 1 MeArthur, 10&; Tytler, 223, 340 ; Hough, 711 ; Prendergast, 208, 211 ; Clode, M. L., 196-198 ; Maltby, 136 ; De Hart, 120 ; 8 Opins. At. Gen., 347. MILITARY LAW AND PRECEDEWTS. 523 tinder Investigation may be present with counsel, and be heard in his 806 defence, at its sessions, and its proceedings may be and generally are public, the analogy Indicated Is by no means complete." 2. For the purpose simply of informing and advising the convening official. These courts are also employed to Investigate cases, which appear to call, not for trial by court-martial, but for some other military or administrative action, and In which the testimony is so multifarious, complicated, or conflicting that a formal Inquiry is needed for the purpose of ascertaining and reporting what are the actual facts, and thus reliably informing the President or Com- mander, and assisting his judgment. This, vpith or without an opinion — as he may direct — as to the bearing of the facts upon the discipline of the service, the rights or liabilities of individuals, &c." In cases indeed where but a brief investigation -jvlll be sufficient, the same is not unfrequently made through an ordinary board detailed for the purpose, or through the judge advocate or Inspector general of the command. It is only for such Important investigations of this class as will involve the taking of a mass of testimony and the giving of a full hearing to the officer, (or soldier,) whose acts have given rise to the proceeding, that a court of inquiry is, In general, ordered." 3. For the vindication of character or conduct. This instrumentality is also not unfrequently resorted to, as a species of court of honor, for the ex- culpation or justification of an officer, (or soldier,) whose reputation or action has been seriously aspersed or injuriously criticized in some official report or authoritative publication, or who has been severely rebulied or censured by a military superior, or who deems himself to have been otherwise aggrieved in his military capacity. In such cases the court is usually applied for by the party himself according to the provision of Art. 115."° Though the primary object of the inquiry Is vindication, the result may indeed be quite the reverse. 807 It is to be remarked that the several objects above Indicated are not necessarily kept distinct and separate in practice, but may, where the circumstances make it proper, be combined in the investigation ordered. The investigation not to be diverted to foreign matter. Though con- siderable latitude is to be conceded to the court in its Inquiry, it will not be warranted in examining a subject quite distinct from that which it has been directed to investigate. Still less where It has been ordered to investigate cer- tain charges, will it be justified in taking into consideration other charges against the same person, or any charges against a different person." To be confined to cases of persons in the army. The term " officer or soldier," employed in the Article, clearly means one who is an officer or soldier " Digest, 136 ; McNaghten, 176-7. » See Tytler, 343 ; Simmons § 334 ; Kennedy, 239 ; 6 Opins. At. Gen., 242 ; 8 Id., 341. " " Thus a court of inquiry may have in charge a comprehensive subject, such as the cause of the loss of a battle, the conduct of a particular corps or ship in a combat or engagement, the general condition of some administrative branch of the service, and other matters 'of that nature." 8 Oplns. At. Gen., 341. And see 6 Id., 242 ; Simmons i 334. »• Instances may occur where two officers who have become Involved In controversy may each apply for a court of inquiry In regard to the same transaction. In such cases the court, if convened, will practically In the words of Vfllliamson, (2 Mil. Ar., 132,) " sit as a court of arbitration between the contending parties, the decision of which they have consented to abide by." " See Ben^t, 230. 524 MILITABTf LAW AND PKECEDBNTS. of the army at the time the court la ordered." Transaction of or accusations against persons who have been members of the army, but who have left It and become civilians, while the same may be indirectly Involved In an investigation, are not per ae legitimate subjects for direct inquiry by this court, even though the inquiry be limited to their acts and conduct while in the army. For such an inquiry would be futile so far as concerned action by the military au- thorities. Not to be affected by the statute of limitations. The military statute of Umitations— Art. 103— applies only to proceedings before courts-martial. There Is no legal obstacle, therefore, to a court of Inquiry taking cognizance of a particular transaction or matter of accusation dating back more than 808 two years prior to the ordering of such court, and It may accordingly extend its examination to acts and occurrences of the past without regard to the period which has since elapsed." A peculiar advantage indeed of these courts over courts-martial is that they are empowered to investigate a series of acts or course of conduct — such as the administration of an office, the execution of a special trust, the management of an expedition or a cam- paign, the keeping of a continued account of receipts and disbursements, &c., embracing, in their relations, a considerable number of years, or any indefinite period. While in practice these courts will rarely be called upon to go Into transactions remote in time, it Is yet the fact that some of the most conspicuous instances in which courts of inquiry have been resorted to in this country have been cases in which a trial by court-martial was held to be barred by the lapse of the statutory period, and a court of inquiry remained the only means by which the facts could be satisfactorily investigated or the person vindi- cated or the reverse." THE OPINION — Art. 119. In view of the positive terms of this Article, the court, unless expressly required to give an opinion, could scarcely properly make even a recommendation or suggestion as to the merits of the case, since the same would in general Involve a certain measure of opinion. As required and rendered. The opinion required of a court of Inquiry is, In general, as already indicated, an opinion whether, upon the facts as devel- oped by the investigation, a particular officer or soldier, or any officer or soldier, should properly be brought to trial by court-martial; or whether any other, and if any what, action Is called for by the Interests of the service, or is otherwise desirable to be takfen. The court may be directed to furnish 809 separate opinions upon several dlfEcrent points Involved in the case," and also to give Its reasons for Its opinions." Where ordered to render an opinion upon a specific subject, or to a certain p'artlcular effect, it should •" Thus a court of Inquiry could not legally be ordered to Investigate charges against a contract surgeon. Digest, 136. In G. O. 50, MU. Div. of West Miss., 1864, are published the proceedings of a body. In form a court of Inquiry, but designated a " council of war," by which was Investigated the question whether a brigadier general commanding the enemy's forces at Fort Morgan, Ala., had violated the laws of war In connection with the surrender of that post. •» G. O. 24 of 1829 ; 6 Oplns. At. Gen., 239 ; 8 Id., 349 ; Macomb, 94 ; Harwood, 168 ; Ben€t, 183-5. And see Debate in Senate on case of Gen. Howard, Cong. Bee, 1874, No. 40, pp. 36-S. De Hart, (p. 281-3,) misapprehends the law on this point; as did also the court of Inquiry in Ast. Surg. Byrne's Case, (G. O. 42 of 1849,) and In Col. Alex- ander's Case, (G. O. 139, Dept of Washington, 1864.) "In the cases both of Gen. Dyer and Gen. Howard, the charges and transactions dated back beyond the period of the statutory limitation. " See Instances of opinions thus dispersed, In G. O. 13 of 1837 ; Do. 40 of 1848 ; Do. 42 of 1849. " As In the case of the Inquiry In regard to the Proteus expedition. S. O. 241 of 1883. MILITARY LAW AND PBKCEDENTS. 525 confine Itself strictly to the same : It cannot assume to express an opinion upon a difEerent matter or to a different effect without transcending Its authority and becoming liable to censure." Dissenting opinions. Though it is the court which Is called upon to give an opinion; i. e., though it Is contemplated that the opinion given shall be the opinion of the court ; yet as the opinion of a court of inquiry is not a judg- ment. It is not deemed to be necessary that the same, as rendered, should be unanimous or single, nor is the fact that the majority concur In a certain opin- ion regarded as precluding, (as In a case of a court-martial,) the expression of their dissent by the minority. When a joint opinion cannot be united in by all the members, dissenting opinions must be given or none at all; and in a case of dissent, it is not only proper, but desirable for the instruction of the reviewing officer, that the different conclusions arrived at by the different mem- bers be formally reported In the record." But dissent of course is to be avoided where practicable, and the members will always preferably concur when they can do so without a sacrifice of just and reasonable views. 810 Incidental remarks. Though the court may not volunteer opinions not called for, it may, in connection with its opinion or report of facts, remark upon matters extraneous to the subject of Investigation, but legiti- mately within its observation, for the purpose of bringing the same to the at- tention of the reviewing officer, — such, for example, as disrespectful or other- wise irregular conduct on the part of the accused or accuser, or on the part of counsel or a witness." VI. THE RECORDER. HIS PBOVINCE AUD DUTIES. Although it is provided in Art. 116 that— "A court of inquiry shall consist of " certain officers " and a recorder," " the special use and purpose of this latter officer Is added as follows, viz.: " to re- duce the proceedings and evidence to writing." So, in Art. 117, while it Is provided that the members of the court shall be sworn to " examme and in- quire," the recorder Is required to be separately sworn to " accurately and im- partially record the proceedings of the court and the evidence." Thus, like the judge advocate of a court-martial, the recorder Is clearly distinguished from the members, and the provision cited of Art. 116 has never been construed In practice as making him a part of the court. " Hough, (A.) 8 ; Harcourt, 174 ; Macomb, 93 ; O'Brien, 291 ; De Hart, 277 ; Copp€e, 98. " " 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 ad- vantage in his consideration of and action upon the cage." Digest, 138. In the Inquiry on the Cintra Convention, in 1808, the members who were " of a different opinion from the majority " were required " to record upon the proceedings their reasons for such dissent," and three of the members accordingly did bo. Sim- mons § 339, and note; Hough, (A.) 4. The last author, (Precedents, 642,) cites an- other case in which two of the five members of a court of inquiry gave dissenting opinions. Contra, O'Brien, 291, in holding dissenting opinions not permissible, proceeds upon a supposed analogy between the judgment of a court-martial and the conclusion of a court of inquiry, which does not exist in fact or in law. « Hough, 29. And see G. 0. 13 of 1837, as to the animadversions of the court of inquiry upon the reprehensible language used In regard to each other by Gens. Gaines and Scott, the two officers concerned, the one in his address to the court, and the other In his official communications which were put In evidence. "The Articles of the late code of 1806, (In force prior to June 22, 1874,) termed this officer " judge advocate," and " judge advocate or recorder." The " judge advocate " of the court of Inquiry in Gen. Dyer's case, (convened in 1888,) was authorized, in a Special Order from the War Department, to appoint an "assistant Judge advocate." Published Record, p. 1. 526 MILITABY LAW AND PRECEDENTS. He is further assimilated to the judge advocate In that he is empowered and required by Art. 117 to qualify the members by administering to them the pre- scribed form of oath ; that by Art. 118, he is authorized to summon and examine witnesses ; and that, by Art. 120, he is required to authenticate, with the presi- dent, the completed proceedings. The principal regular duties of the recorder are to secure the attendance of the witnesses, and to swear them and conduct their examination, (cross- 811 examining also, If desirable, those introduced by the other party. If there be one,) and to prepare the record of the court. He also assists the court In procuring such documentary or written evidence as may be required; but as Art. 91, relating to depositions, evidently contemplates the taking of the same mainly at least for use on trials by courts-martial, he will comparatively rarely be called upon to obtain testimony In this form. NOT A PBOSECTJTOB OB, IiAW-OPFICER. The recorder, however, «n"Uke the judge advocate, is not a prosecuting officer, since the investigation is not a trial, nor wlU he properly assume the rdle or manner of a prosecutor. Further, he is not invested, like the judge advocate, with the capacity of adviser to the court. A court of inquiry, having confidence in the legal ability of its recorder, may Indeed properly call upon him to assist it in examining the law applicable to the case before it, but this Is no duty of a recorder; moreover it will not often come within the province of a court of inqliry to pass upon questions of law of a difficult or unfamiliar character." VII. THE PHOCEDURB. THE MEETING OP THE COUBT — ^ATTENDANCE OP PABTIES. The court assembles at the place and time named In the Order convening it If all the members do not attend on the first day, it is customary for the others to adjourn from day to day till all are present, with the recorder. The " party accused " Is entitled, by Art. 118, to be present so far as to take part in the examination of the witnesses, and In practice he is permitted to be, and generally Is, present from the beginning and throughout the proceedings," though his presence is not at any stage obligatory or essential. He is sometimes indeed, though rarely, ordered to be present," and in such case must 812 attend, though his absence may not afCect the authority of the court to proceed. To place the accused party in arrest prior to the convening of the court, or pending its continuance, would be opposed to the present usage of the service, and scarcely justified except in an extreme case." The party accused, or " whose conduct is inquired of," is entitled to be present (with counsel, if desired"), and to examine and cross-examine the witnesses " In the exceptional case, however, of Gen. Howard, already noticed, the court was specifically required to express an opinion not only upon the " moral " but upon the " technical and legal responsibility " of the officer. "He should properly be furnished with copies of the convening Order, and other Orders, it any, fixing or changing the time or place of the meeting bf the court. " Simmons § 335 ; Hough, 25, 437 ; James, 317 ; De Hart, 275. The court has no power to command his obedience, but the commanding officer only. Simmons i 334; Griffiths, 133. "Hough, (A.) 8; Griffiths, 134; De Hart, 279; Lee, 83. So, in the navy, the officer need not be put under suspension. Harwood, 163. The case of Andr4 was of course an exception : at the end of the proceedings the record states that he was " remanded Into custody." In the early case of Major Wyllys, of our own army. Congress, in providing for a court of inquiry, expressly directed that he be " arrested and remain in arrest " till it should further order, and, at the end of the proceedings, it directed that he be " rdeased from his arrest." 4 Journals, 625, 676. »» See De Hart, 276 ; Ben«t, 182 ; Copp4e, 99 ; Harwood, 163. MILITABY LAW AND PRECEDENTS. 527 similarly as before a court-martial; and, under the existing law, he may him- self take the stand as a witness. He may also present an argument or state- ment at the close. The inquiry, however, not being a trial, his presence thereat Is not essential. The accuser, where there is one, has also generally been allowed to be present,"' and with his counsel ; " and a similar privilege is prop- erly extended to an officer whose conduct will be materially involved in the Inquiry." CEAIiLENGE OF SIEMBEBS. The full court being in attendance, the convening Order is read, and the accused or Interested party, is afforded the same opportunity of challenge as upon a trial by court-martial. To this privi- lege indeed he is not legally entitled, since, by the terms of Art. 88, it is only " members of a court-martial " who " may be challenged by a prisoner." 813 In strict justice, however, to the party, and with a view to an impartial inquiry, such privilege is now always extended in our service." In the special case of Gen. Howard, it was, as has been seen, expressly pro- vided by Congress that the accused should " Be allowed the same right of chal- lenge as allowed by law in trials hy court-martial; " but this provision was only declaratory of the existing practice as established by usage, and was unneces- sary to secure the privilege to the party." Wherever the opportunity of challenge is availed of, the proceedings had will be similar to those before courts-martial in like cases, as fully set forth in Chapter XIV. If a challenge to one of a court of three members is allowed, it will in general be better to adjourn and await the action of the convening authority, since a court of two members, though legal, does not permit of a majority vote In a case of disagreement. OBGANIZATION, SITTINGS, &c. — ^Administering of the oath. Such objections to members as have been made, (if any,) being disposed of, tlie members and recorder are sworn according to the form and in the manner set forth in Art. 117. Obligation of secrecy. The oath, it may be remarked, imposes upon neither members nor recorder any obligation of secrecy similar to that enjoined by their oath upon the members and judge advocate of a court-martial; so that the opinion of the court may be divulged without any violation of the oath as prescribed. But, in law, the opinion of a court of inquiry is assimilated to the judgment of a court-martial in that It is a confidential and privileged official communication addressed to the convening authority and Intended as a basis for his action alone, and it is readily perceived that a disclosure of such opinion before such action was taken might, (especially In a case where the court had been sitting with closed doors,) seriously embarrass the commander or the President in his disposition of the case, and perhaps materially prejudice 814 the interests of the accused party in the event of a trial being ordered." It has therefore been held both by English and American writers" to "De Hart 276 Btoet, 181-2; Coppfe, 98. In Gen. Dyer's Case, as also in Gen. Swalm'8, the' counsel of the accusers constantly attended, and took upon themBelves the onus of making good the charges. "Kennedy, 240; Hough, (A.) 8; De Hart, 276; Benet, 181. Gen. Scott, as accuser, attended the court of inquiry in the case of Gen. Pillow, In Mexico, In 1848. » Proteus Court of Inquiry, pp. 2, 3. „,„.„„ „ j "See Macomb, 94; O'Brien, 292; De Hart, 278; Ben^t, 181; Copp6e, 98; Harwood, 163. The privilege was recognized as far back as at the inquiry in the case of Gens. ^"^ThTs^^'admUt'd'in the debate In both Houses of Congress. Cong. Rec, Nos. 38 ""^'HomtTBentinck, 2 Brod. & Bing., 130, 164; Hough, 26 ; Clode, M. L., 199; De Hart. ''.'sratVorm^crdt la's't note; also Hough. (P., 653; Hughes, 163; O'Brien, 291. 528 MILITARY LAW AND PEECEDENTS. be highly unnrilitary and Indecorous for a member or the recorder of a court of Inquiry to discover, either to the accused or other person, the opinion or recommendation of the court, without the authority of the convening official or before the same is published in orders. The oaths having been administered, the court is organized for the inquiry. "Whether session to be open or closed. Before, however, entering upon the Investigation, a question generally to be determined is, whether the court shall sit with open or closed doors. Courts of inquiry, instituted as they are to assist by their researches the judgment of the President or the military commander, and making reports addressed as confidential communications to his discretion, would appear from their very nature and purpose to be properly close courts." Admission to them, In the absence of statutory regulation on the subject, Is declared to be, strictly, not of right." But from an early period these courts, even In England, have sometimes been open ; "^ and, in our law. Art. 118 pro- vides for the admission of the accused and the witnesses, while, by custom, the accuser, the counsel of both parties, and the necessary clerks are permitted to be present. From this it Is but a short step to admit the public, and the result Is that, with us, courts of Inquiry, unless otherwise Instructed in Orders, are in general held as open courts." It Is Indeed always competent anfl 815 proper for the convening authority to direct, in the convening or a supplemental Order, whether the court shall be open or closed." But If — as is usually the case — the Orders are silent on the subject, the court is empowered to decide the point for Itself by vote, or, without raising the ques- tion, to go on sitting with open doors from the beginning." In a case where the result of the inquiry, as It is developed In the course of the testimony, is such as to make it improper or Impolitic that the court, originally open, should con- tinue to be so, the doors will properly be closed during the rest of the investi- gation," all persons being excluded except those entitled or privileged by law or usage to be present, and the witnesses being admitted separately." Of course, upon the final deliberation, or where It is desired to consider without publicity some interlocutory question, the court, if open, is cleared, and the doors are closed, in the same manner as in the case of a court-martial." Hours of session. A court of inquiry, (In the absence of special instruc- tions on the subject,) may sit " without regard to hours," beginning and end- ing Its daily sessions at such hours as may be convenient for itself and the ■" " These courts being held for the purpose of obtaining information, upon which an ulterior decision is to depend, are necessarily close courts." Kennedy, 240. "All courU of inquiry are inherently close courts." Hough, (P.) 645. And see Simmons § .337; Clode, M. L., 196 ; Benet, 182 ; 8 Opins. At. Gen., 346. •" " Defendants generally, and auditors and spectators occasionally, have access by grace and not of right." Hough, (P.) 645. And see other authorities cited in the last note. "■ The Inquiry on the Clntra Convention was closed tor the first two days. On the third day it was opened, a minute being made in the proceedings that — " the guard being withdrawn, strangers are allowed to enter." See Hough, (A.) 11. " Macomb, 92 ; O'Brien, 291 ; De Hart, 276 ; Harwood, 163 ; 8 Opins. At. Gen., 346 ; Lee, 82; Digest, 136. In tbe recent case ol Gen. Swaim, the court, (p. 27,) voted to sit with open doors. "Hough, (A.) 11; Do., (P.) 639; Simmons ! 339. Griffiths, 132; De Hart, 276; 8 Opins. At. Gen., 229. « See De Hart, 276 ; Benfit, 182 ; Coppfie, 99 ; Harwood, 163. " See Hough, 26 ; Macomb, 92 ; De Hart, 276 ; Harwood, 163 ; 8 Opina. At. Gen., 347. "Hongh, (P.) 640. " " Generally the court sits with open doors, except when deliberating and voting." O'Brien, 291. MILITABY LAW AND PRECEDENTS. 529 parties Interested." The provision o£ Art. 94 prescribing certain fixed hours applies only to " proceedings of trials." Adjournments. The granting of " continuances," as such, is, by Art. 93, in substance restricted to occasions of trials before courts-martial. A court of inquiry, however, may, from time to time during an investigation, grant or take such adjournments as may be expedient and reasonable." 816 Keeping of order — Contempt. The presiding officer acts as the organ of the court, and keeps order as In the case of a court-martial. But a court of inquiry, having no original judicial authority, and not being embraced within the description of Art. 86, which applies in terms only to courts-martial and cannot, as a penal statute, be enlarged by implication, is not empowered to punish, as for a contempt, persons guilty of disrespect, disorder, or violence in its presence.™ Where, therefore, witnesses or others misbehave at a session of a court of inquiry, while the court may cause them to be removed if desirable, it can procure them to be punished only by reporting the case to the convening authority or local commander, or to the civil authorities as the case may he." In the event of a trial of the offender, the members and recorder, or any of them, will properly testify as prosecuting witnesses." THE INVESTIGATION AND EVIDENCE — Entertaining of charges, re- ports, &c. Upon its organization, the court commonly proceeds at once to the matter of the inquiry, which it has been sworn to make truly and impartially "according to the evidence." Not unfrequently, as a starting point of the investigation, reports, correspondence, books, &c., or charges — which will prop- erly be specific, but need not be in a technical form " — are laid before the court, either as referred to it directly by the convening authority, or furnished to and introduced by the recorder. Even though formal charges be offered, there is made, as already indicated, no plea. The accused, hovpever, may take occa- sion to state — ^if such l)e the fact — that he admits certain allegations, thus simplifying the investigation." 817 Taking of testimony. The evidence is now entered upon, and, before courts of Inquiry, the documentary evidence especially is often very con- siderable. The examination of the witnesses is conducted substantially as before courts-martial ; — the accused availing himself, so far as desired, of the right recognized by Art. 118 to examine and cross-examine, by introducing witnesses of his own, and interrogating, impeaching, or objecting to the witnesses and testimony offered by the recorder ; and the members of the court putting such questions as may be deemed desirable for the eliciting of the facts. Under the " De Hart, 279 ; Benft, 182 ; Copp^e, 99. In this connection, Hough, (Practice,) 137, observes — " Though Sunday Is not a day (or sitting, still there may arise cases requir- ing a court to sit on Sunday." •» In the Order convening the court of inquiry In the case of Gen. Buell, the court was specially authorized to " adjourn from place to place as may he desirable, for the convenience of taking testimony." ™ See Digest, 137 and note. The law on this point is misapprehended by De Hart, (p. 279,) and Ben^t, p. 182. "As to witnesses, Clode, (M. L., 198,) correctly says: "the court has no power to punish them for contumacy or silence." " See Delafons, 53-4 ; Hough, (A.) 6. " See Hough, (A.) 8 ; Maltby, 137 ; De Hart, 280 ; also G. O. 42 of 1849, (case of Ast. Snrg. Byrne,) where there were ten specific charges preferred in the form of statements of fact. It is observed by Maltby : — "A complainant is not bound to exhibit the same charges before a court-martial which he produced to the court of inquiry. Formal charges have sometimes been preferred as the basis of the investigation," See cases in G. O. 65, 88, Fifth MU. Dist., 1869. "See O'Brien, 291. 440593 0-42-34 530 mhjtaby law and pkecedents. Act of March 16, 1878, c. 37, the accused, If he so elects, may take the stand as a witness, subject to cross-examination. The inquiry not being a judicial proceeding, the court is not called upon to enforce the rules of the law of evi- dence so strictly as would be, in general, a court-martial," but founded as such rules commonly are upon Justice as well as logic, it will ordinarily be safest and most equitable to observe them." Independently of his examination as a witness, the accused — it need hardly be remarked — is not now subject, as formerly," to be Interrogated by the court, or called upon for an explanation. Closing argument. Upon the conclusion, however, of the testimony, the accused, (after reasonable time for preparation, if desired,) may make, in his defence, such closing statement or argument as he may deem for his advantage." The recorder, with the assent of the court, (for, not being prosecutor, he is, strictly, without right in the matter,) may thereupon present a summary of the evidence with such remarks and arguments as the facts may properly sug- gest Except, however. In cases of unusual importance, while the accused or interested party commonly submits a written address, the recorder, unlike the judge advocate, does not in general formally reply. 818 Making up of report, &c., and record. The arguments, if any, havlhg been delivered, the court, if open, clears for deliberation in the same manner as a court-martial. The recorder alone remains with it, to assist it in recurring to the testimony and preparing its report. After such discussion as may be found profitable, the report is drawn up ; the court, where elaboration is called for, taking such adjournments as may be found necessary before their work can be completed. Although the court has been simply required to ex- amine into and communicate the facts, this duty — it has well been remarked— Is not duly performed by merely returning the proceedings with the testimony as taken from day to day, but a formal summary at least of the material evidence should properly be prepared and entered of record." Such summary indeed the court may be directed, in the Order convening it, to present with its reports." An opinion, If one has been required, will be added, and in such form and with such detail as may most fully and succinctly convey to the convening authority the conclusions of the court.'' As already indicated,— while a ma- jority vote will properly govern in determining questions t)revlously arising in the course of the proceedings, the minority are not obliged to yield to the ma- jority in the expression of the opinion. Thus where the members are unable to unite in a single joint opinion, their dissenting or different opinions, duly sub- scribed, will be spread upon the record. "Hough, (A.) 9; Kennedy, 240; Hughes, 162. " See D'Aguilar, 88 ; O'Brien, 291 ; De Hart, 332. .il^rt' ^°"^.''' '"*■■' V ^^ *° '"^ procedure in the Inquiry on the Cintra Convention; H^h,. t'" ■'' . r'^ f ^°'*^*- ^"'^ P"^""*'*' J'«'«'«v«. ha^ long been discontinued, as liable to criminate and unjust. See Tytler, 344 ; Adye, 81-2; Hughes, 162; Hough, (P.) 640; Simmons { 335; Copp«e, 98. . s , , iiuugu, ^r., dis'retneitftVn/T' *° *!" ^""'"'"y <>« *!>« court to restrict a statement containing disrespectful or otherwise improper expressions. See Chapter XVII InL^rv n'sTf-tf ■ °'f"'"' ''""'= "' """' ^''-^- I" ^^^ Scott-Gaines Court of procee^ln™ .^""P^"**'' ""'y "^ *"« testimony as taken. Gen. Jackson returned the hadbSn"I.ftt h \'^'^T:^ "' *'"' ""'^"''^ furnished, remarking that the facts to the nroceedinL f H .'. """ ''" "•"'' °"""'" """^ documentary evidence contained "As was done in Major Eudlow's case— S. O. 302 of 1892 maaT'%V'Z.^\^''a^n «r^^«? »»Testlgated, formal flnMn„. have sometimes been MILITAST lAW AITD PKBCEDENTS. 531 The completed record will then be authentlcatecl, la the same form as the record of a court-martial, and as prescribed by Art. 120," and thereupon trans- mitted to the commanding officer or the President. 819 Vni. ACTION ON THE PROCEEDINGS. DISCSETIOIT OP THE SEVIEWHTQ ATTTHOBITT. This official, upon the receipt of the record from the court, may, in the absence of any statutory direction, take action thereon at his discretion. If an opinion be given, it is in no respect binding upon him, being in law merely a recommendation, to be ap- proved or not as he may determine. If, for instance, it Is to the effect that suffi- cient grounds exist for ordering a court-martial in the case, he may either proceed to order one, or may decide that no further proceedings are required." So, where any other measure Is suggested, he may adopt the view of the court, or may resort to action quite different, or may take none whatever. If action be taken, it need not be confined to strictly military means or methods. Civil or criminal liabiUtles may be disclosed by the testimony which should properly become the subject of an official communication on the pant of the reviewing officer, addressed, through the Secretary of War, to the Attorney General, or more directly to the local authorities, with a view to suit or prosecution. BEVISIOW BY THE COURT. If not satisfied with the investigation, or with the report or opinion, the reviewing official may re-assemble the court, in the same manner as a court-martial, and return the proceedings with direc- tions, either to have the investigation pursued further and completed, or the report of the facts made more detailed and comprehensive, or the opinion ex- pressed in terms more definite and unequivocal or more responsive to the original instructions, or to correct or supply some other error or defect." 820 The inquiry not being a trial but an investigation merely, the court may properly be required, upon revision, to rehear witnesses or to take en- tirely new testimony, or it may do so of its own motion without orders in con- nection with the revision. A court of inquiry would be chargeable with dereliction of duty which should refuse to pursue an Investigation or complete a report of facts, thus ordered to be perfected. Such a court, however, though it might be censured or severely criticized, could scarcely be otherwise called to account for declining to modify an opinion — ^provided it were expressed in temperate and proper language PBOMULGATION. The reviewing authority, having taken final action upon the report or opinion, proceeds, regularly, to publish, in a General Order, in whole or in part, or in substance, the report of the court upon the subject of the inquiry, with the opinion, (if any,) and 'the determination had or action taken thereon. Upon considerations, however, of policy or justice, the Presi- dent or commander may, in his discretion, delay to publish, or omit altogether MA proper form similar to that recommended for the record of a court-martial, is : — A true and complete Eecord. Attest : A. B., President : C. D., Recorder. Compare Chapter XXIII^-"Authenticatlon of Becord." Formerly, all the members appear to have signed the record. In the case of Andr6 it was subscribed by all the fourteen members. In connection with the subject of. the making up of the record of a court of Inquiry, the student is referred to Chapter XXIII on the subject of the Record of Courts-martial. " Or, though the court of inquiry may -exculpate the accused, the Reviewing Author- ity may still decide to iave him brought to trial ; as was done by the President in Gen. Wilkinson's case, in 1811. "It may here be noted that the class of errors affecting the legal validity of the proceedings, which may occur -in records of courts-martial, are not known as such to records of courts of tauiuiry. 532 MILITAUT LAW AITD PBECEDBWTS. to publish," the report, &c., or may publish the result alone— «s, for example, that It Is determined that no further proceedings are called for In the case." IX. THE PROCEEDINGS AS EVIDENCE. BEFOBE A COTTRT-MABTIAL. It Is provided by Art. 121 that—" The pro- ceedings of a court of inquiry may He admitted as evidence hy a court-martial, in, eases not capital, nor extending to the dismissal of an officer: provided, that the circumstances are such that oral testimony cannot be obtained." By the term " proceedings " is evidently had in view chiefly the testimony ; " 821 and the occasion contemplated doubtless was that of a trial by court- martial of a case which had previously been investigated by a court of inquiry. In such a case it could not prejudice the Interests of justice, but the reverse, to adnrit' in evidence the sworn testimony of witnesses who had recently testified before the court of inquiry but whose personal attendance at the court-martial could not by reasonable diligence be secured. Indeed a resort to such testimony might be the only means of avoiding a failure of justice. The admission of such evidence might also be advantageous on certain other occasions — as where, for example, an officer or soldier was brouglit to trial by court-martial on a charge of false swearing as a witness before a previous court of inquiry, and it was desirable to prove his testimony at the latter precisely as given. As to the cases excepted from the application of the Article, i. e. " capital " cases and cases " extending to the dismissal of an officer," it is to be said that by the former are meant cases of alleged offences which, by the Articles of war, would be capitally punishable " if found by the court, and, by the latter, cases of alleged ofCences of officers for which the penalty of dismissal is made mandatory upon conviction. It is to be remarked that the admission of evidence referred to in the Article is an admission of evidence on the merits of the case, i. e. In proof of the offence charged." Thus it has been held by the Judge Advocate General that the proceedings of a court of Inquiry would be admissible In evidence, Irre- spective of the Article and in the eases excepted as well as in any other, where the object was, not to prove or disprove a charge, but to Impeach the evidence of a witness on the trial by showing that he had made a different statement on oath before the court of Inquiry." The proceedings of the court of inquiry will properly be proved before the court-martial either by the original record of the Inquiry, or by a copy of the same certified by the Judge Advocate General, or other official in whose custody the original may temporarily be. 822 BEFORE A CIVIL COTTBT. The question of the admissibility in evidence of the record of a court Of Inquiry at a trial before a ci/oil court was determined in the negative In England by the well-known case of " Ab was done with regard to the proceedings In the case of Gen. Buell, which, BS noted ante, were never promulgated in Orders. "" As in the 'case of the charges against Gen. Martlndale. See G. O. 178 of 1862. " It was held in a naval case, under the naval Art. 60, almost identical with our Art. 121, that the " finding " of a previous court of Inquiry in the case of an officer could not be put In evidence before a court-martial in the same case. " The findings of the court of inquiry," it is observed by the Secretary of the Navy, " were not, and could not be, in evidence before the court-martial — could not, in any' manner, legally or officially Influence its proceedings." 6. C. M. O. 41, Navy^DeptTi^ 1888. " As to the definition of the term " capital " as used in the Articles of War, see Chapter XX — " Death." •• G. O. 33, Dept. of Arizona, 1871. "» This opinion is published as approved by the President in G. C. M. O. 40 of 1880. MILITAKY LAW AND PRECEDENTS. 533 Home V. Ix)rd Bentlnck." This was an action brought In the Court of King's Bench by a Lieut. Colonel of the British army, whose alleged misconduct had been investigated by a court of inquiry, against the president of the court, for a libel claimed to be contained in the opinion. The plaintiff presented as evidence the original record of the court, which, upon objection by the de- fendant, was ruled out as inadmissible: a copy of the record was then offered with a similar result. Upon an appeal to the Court of Bxcheciuer Chamber, these rulings were sustained on the ground that the opinion of the court constituted a privileged communication. Dallas, C. J., observed: — "What was the report in Its very nature but a confidential communication, In conse- quence of a direction by the Commander-in-chief, for the information of his own conscience in the exercise of his public duty?" And he holds that — " upon the broad principle of state policy and public convenience, * * ♦ these matters, secret in their natures and involving delicate inquiry and the names of persons, stand protected." " This ruling would be applicable to a similar case at American law. But in our military practice the results of the investigations of courts of inquiry are in the majority of cases promulgated in Orders, and in a case in which such a publication had been made the report or opinion published could not be held to be a privileged communication, though the testimony or proceedings not published might still be so considered. <"2 Brod. & Blng., 130. "The Chief Justice further holds, (p. 162,) that It would have been the duty of the court, considering that the document was a secret communication, not the prop- erty of the party holding it but of which he was a trustee on behalf of the public, to interpose and prevent its admission, even If no objection had been raised, — in the same manner, he adds, as witnesses "are not to be asked the names of those from whom they receive Information as to frauds on the revenue." And in this case, see Dawklns v. Lord Bckeby, 8 Q. B. 255 ; Manual, 174, 176 ; also — ^generally — Part III, post. CHAPTEE XXV. THE ARTICLES OF WAR SEPARATELY CONSIDERED. 823 The history and aHthority of our Code of Artlcle8 of War have beer reviewed In a previous Chapter. Certain specific Articles, to wit Arts. 63. 65 to 98, and 100 to 121, as also certain of the other statutes properly classed with the Articles, viz. Sees. 1202, 1203, 1230, 1326, 1361, 4824 and 4825, of the Revised Statutes, together with the provisions of the Act of October 1, 1890, c. 1259, (relating to sununary courts,) and of the Act of July 27, 1892, c. 272, (except Sec. 3, yet to be noticed under the Sixty-Second Article,) — have been sufficiently construed In connection with the various subjects already examined In this treatise. We now proceed to consider such of the remaining Articles (and kindred enactments) as are deemed to call for construction and remark. Forms of Chaboes of the offences made punishable by the several Articles will be given in tlie Appendix. It need only here be said In general that the specification under any charge should not merely consist in a bald repetition of the phraseology of the charge or of the name of the offence, but should set forth In full the particulars — words, acts and circumstances — In which the offence is alleged to have consisted.* It may also here be observed that the discretion as to the punishments of etiMsted men, given In the Articles making punishable military offences, is to be viewed as subject to such" restrictions with regard to maximum penalties 824 as are Inclosed in the Orders Issued under the Act of September 27, 1890, and heretofore remarked upon. I. THE INTRODUCTORY SECTION. The Code of Articles Is prefaced. In the Revised Statutes, by the following general provision: " Section 1342. The Armies of the United States shall 6e governed liy the following rules and articles. The word offlcer, as used therein, shall be under- stood to designate commisisoned officers; the word soldier shall 6e understood to include non-commissioned officers, musicians, artificers, and privates, am4 other enlisted men, and the convictions mentioned therein shaM be understood to be convictions by court-martial." EFFECT. Of this Section, tlie first clause is substantially identical with that which introduced the Articles of 1806; Its original being found In the preliminary declaration of the two earlier codes of 1775 and 1776. The second clause is new, and was designed to set at rest the question, (which had been considerably discussed,) whether under the terra "officer," as em- ployed in the Articles, and particularly in the old 9th, (now 21st,) Article, uon-commlssloned officers could properly be held to be included. ' See Cbapter X — " Thb Chargb.* 634 MILITAilY LAW AND PEEOEDESTTS. 535 It may be remarked that within the terms " officer " and " soldier," as here defined, are embraced all the purely military persons who are subject to the Articles of War and the Jurisdiction of courts-martial, except only Cadets. This class, however, as a part of the "Army of the United States," (as defined In Sec. 1094, Rev. Sts.,) are directly so subjected by the first and general clause of the Section, and indirectly by the operation of Sec. 1320, Eev. Sts., prescribing their oath. II. THE FIRST ARTICLE. » [Subscribing of Articles.] "Abt. 1. Every offleer now in the Army of the United States shall, within six months from the passage of this Act, a^^^ every officer hereafter appointed shall, before he enters upon the duties of his office, suiscrihe these rules and articles." AH OBSOLETE PROVISION. This provision, derived from a similar 825 Article of the code of 1775, Is now practically a dead letter, officers of the army being never required manually at least to " subscribe " the Articles of war. This Article may indeed be regarded as superseded' In the existing law by Sec. 1757, Rev. Sts., which, — as enlarged by the Act of May 13, 1884, — ^prescribes an oath of office, to be taljen alike by the civil, military and naval officers of the United States, in which the party swears, among other things, that he will " well and faithfully discharge the duties of his office." ' III. THE SECOND AND THIRD ARTICLES. [Enlistment.] " Abt. 2. These rules and articles shall he read to every enlisted man at the time of, or vnthi/n six days after, his enlistment, and he shall thereupon take an oath or affirmation, in the following form: ' I, A. B., do solemnly swear {or affirm) that I will hear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their ene- mies whomsoever; and that I will ohey the orders ,af the President of the United States, and the orders of the officers appointed over me, according to the rules and articles of war: This oath may he taken hefore any commis- sioned officer of the Army. "Aet. 3. Every officer who knowingly enlists or musters into the military service any minor over the age of sixteen years without the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated persons, or any deserter from the military or naval service of the United States, or any person who has been convicted of any in- famous criminal offence, shall, upon conviction, be dismissed from the service, or suffer such other punishment as a court-martial may direct." Second Aeticle. EFFECT OF THE ARTICLE — THE OATH. This Article is an incorpora- tion of the old Art. 10 of 1806, (derived from Art. 1, Sec. Ill, of 1776,) with s. 11 of the Act of Aug. 3, 1861, c. 42. Tormerly the officer's oath, as prescribed by the Act of- Jan 29. 1813, c 16 s. 13, was the same as that administered to enlisted men. Forms of an oath of alUgtanee required to be taken by officers during the Eevolutionary War are found In 1 Jour. Cong., B26 ; 2 Id., 427-8. 536 MHilTABY LAW AND PRECEDENTS. 828 The oath here required or directed to be taken, while not absolutely essential to a legal enlistment, constitutes indeed the most material evi- dence that the contract has been entered into, and is the invariable form by which it is . Cashing, 11 Mass., 70, the obligation of an enlistment In the army is contrasted with mlUtla duty as follows : — " Enlistment Is a contract : service in the militia Is merely obedience to a requisition of the laws to which all are subject without discrimination." "See Clode, 2 M. F., 40; U. S. V. Cottlngham, 1 Rob., 630; TJ. S. v. Blakeney, 3 Grat., 409. And compare the language of the Act of March 3, 1796, in which a general authority to discharge at discretion Is "expressly reserved to the Government." MILITAKY LAW AND PBECEDENTS. 539 formed a part of the original consideration.'" The contract of enlistment Is thus a transaction in which private right is subordinated to the public Interest. In law, it is entered into with the understanding that It may be modified In any of Its terms, or wholly rescinded, at the discretion of the State. But this discretion can be exercised only by the legislative body, or under an authority which that body has conferred." CONSTITUTIONAL PROVISION — ^POWEB, OF CONGBJESS. The 831 original authority for the enlisting of persons in the military service is to be found In the clause of the Constitution " by which Congress Is empowered "to raise armies." The Constitution does not indicate the manner in which the power shall be exerted,'" but leaves the whole subject without limitation to the discretion of Congress.'" No power whatever over the same is conferred upon the Executive, who thus comes to exercise in the matter only such functions as may be devolved upon him by the Legislative body." To this branch of the Government it thus belongs in the first instance to determine how the army shall be raised,^ of what persons and number of persons it shall be composed," and what shall be the terms and conditions of the contract or obligation of military service." 1. MODE OF BAISING ABMIES. Congress, as held by the Supreme 832 Court In Tarble's Case," " can determine how the armies shall be raised, whether by voluntary enlistment or forced draft." Except, however, upon one occasion in our constitutional' history, the former mode Is the only one which has in fact been resorted to. Such were the proportions of the late wa;r of the rebellion, and so urgent was the need of troops, that Congress was Induced to exercise in the Act of March 3, 1863, c. 75, the power of raising a military force by an enrolment and draft of citizens, &c., between the ^ges of »» Compare Wilkes v. Dlnsman, 7 Howard, 1. " The peculiarity of this coptract Xa further illustrated by the ruling of the U. S. Supreme Court in In re Grimly, where It Is obseryed by Brewer, J., as follows — " In this transaction something more Is Involved than the making of a contract, whose breach exposes to an action for damages. Enlistment Is a contract; but it is one of those contracts which changes the status ; and where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence Imposes." 137 U. S., 151. And see further Id., pp. 152-4. "Art. 1, Sec. 8, par. 12. " Kerr v. Jones, 19 Ind., 354. '" " Its control over the, subject Is plenary and exclusive." Tarble's Case, 13 Wallace, 408. And see In re Dlsinger, 12 Ohio St, 260. The Constitution, in conferring upon Congress the power to raise armies, authorized it " of course to pass laws necessary for that purpose." Com. i;. Barker, 5 Bin., 428. And see Phelan'a Case, 9 Ab. Pr., 287-8. » " By the Constitution, the power to raise armies is vested exclusively In Congress ; and the executive department, In carrying the will of Congress into effect, must con- form its action to the authority conferred on It." 4 Oplns. At. Gen., 537. "The President has not, by the Constitution, power to raise a single soldier. Congress, the legislative power, can alone empower hlin to do so." Kerr v. Jones, 19 Ind., 354. "Tarble's Case, 13 Wallace, 408. And see Kerr d. Jones, ante. " " It is in the power of Congress to declare who may be enlisted ; • • • to say who shall serve in the army." Eellly's Case, 2 Ab. Pr. (N. S.) 335, 337. Congress may designate persons of " any age, class, or condition," as those " who shall constitute the army." In re Dlsinger, 12 Ohio St., 261. " The numT>er~t>i men in the Army and Navy is dependent entirely on the will of Congress, and In the legislation incident to that question the highest rights of sovereignty are exercised by the Government." Harmon V. V. S., 23 Ct. Ci., 140. And see In re Eiley, 1 Benedict, 409 ; Tyler v. Pomeroy, 8 Alien, 493 ; In re Beswick, 25 How. Pr., 151. « " It is quite clear that Congress may declare what shall constitute a valid contract of enlistment." Phelan's Case. 9 Ab. Pr., 288. And see Tarble's Case, 13 Wallace, 408. =* 13 Wallace, 408. The power to raise armies must of course not be confounded with the power to call out the militia. As to the point that the two powers are altogether distinct, see 6 Opins. At. Gen., 484 ; Kerr v. Jones, 19 Ind., 354, 540 MILITAEY LAW AND PBECEDENTS. 20 and 45 ; and under this Act and the statutes additional thereto, a mild ^stem of conscription went on pari passu with voluntary enlistments during the last two years of the war. But further than to observe that its constitutionality has been fully affirmed by the Courts," this mode of raising armies need not here be remarked upon. 2. THEIB COMPOSITION. In declaring what persons shall constitute the army, Congress — as already Indicated — ^Is alone authorized to determine all such details as nationality, race, age, physical and moral qualifications, Ac* Nationality. The legality of the enlistment of aliens is recognized by the conmon law and the law of nations," and the employment in their armies of foreign mercenaries has been resorted to by all the European powers." With us, it Is settled law that Congress may, and does, by not In terms restricting to citizens the persons eligible to enlistment, authorize the enlistment of 833 aliens or Inhabitants who have not been naturalized.* In Sec. 2166, Rev. Sts., indeed, the legality of the enlistment of aliens is expressly recog- nized by a provision " that any alien of the age of twenty-one years and up- wards, who has enlisted or shall enlist " in our armies, may, upon bei&g hon- orably discharged therefrom, be admitted to become a citizen without the per- formance of certain conditions required In other cases of aliens. Bace — Indians. Although Indians are not, in general, citizens," the author- ity to employ them in the military service seems not to have been doubted, and they have accordingly been so employed from time to time during our wars. In March, 1776, they were authorized to be enlisted, with the consent of their tribes and the " express approbation of Congress." " Congress indeed did not hesitate to avail Itself of their military service during the war of the Revolu- tion; " and by the Act of March 5, 1792, " for the protection of the frontiers," the President was authorized to employ, (in connection with the army,) such number of Indians as he might think proper. In 1846, during the war with Mexico, a " spy company of Indian mounted volunteers," consisting of Shawnees and Delawares, was raised and held in service for three months." In the re- cent war three regiments, designated as the First, Second and Third Indian Regiments," (or " Indian Home Guard, Kansas Infantry,") were recruited and organized in 1862, under the general authority of the Act of Congress of July 22, 1861 — " to authorize the employment of Volunteers," &c. Indians were also " Kneedler v. Lane, 45 Pa. St, 238 ; Booth «, Woodbury, 32 Conn., 126 ; Tarble'B Case, 13 Wallace, 408; And see U. S. v. Scott, 3 Wallace, 642; U. S. ■». Murray, Id., 649; Allen v. Colby, 47 N. H., 544; Harvey ii. Peacham, 42 Vt., 291; Reed f. Sharon, 35 Conn., 191. In Sheffield v. Otis, 107 Mass., 284, It is observed by the court, that the term " enlisted " or " duly enlisted," as employed In the Articles of war, " necessarily Includes soldiers who have been drafted as well as those who have entered the service as volunteers." " In re Kiley, 1 Benedict, 410 ; In re Dlsinger, 12 Ohio St., 261 ; In re Beswlck, 25 How. Pr., 151. Details omitted to be prescribed by Congress may, (where not of the nature of legislation,) be supplied by regulation, gee Art. LXXI, A. E " 3 Opins. At. Gen., 671 ; 6 Id., 476. "See U. S. V. Wyngall, 5 Hill, 22-25; U. S. v. Cottlngham, 1 Rob., 635. » U. S. V. Wyngall, ante, 16 ; V. S. v. Cottingham, ante. 615 ; 6 Oplns. At. Gen., 474, 607; 4 Id., 350; O'Brien, 86. By the conscription laws, (Acts of March 3, 1863, c. 75, 8. 1, and July 4, 1864, c. 246, s. 3,) foreigners, who had only declared their intention to become citizens under the naturalization laws, were authorized and required to be enrolled and made subject to draft. » " Indians are not citizens of the United States, but domestic subjects." They may, however, be naturalized as citizens under a special Act of Congress or a treaty. 7 Oplns. At. Gen., 746. "1 Jour. Cong., 281. "See 2 Jour. Cong., 465, 468-8. " See Act of Sept. 28, 1850, c. 83. « Volunteer Register, Part Til, p. 364-8. MILITABY LAW AND PKECEDENTS. 541 enlisted Into other regiments of State troops, as the eth, 9th, and 14th regi- ments of Kansas Volunteers." 834 In the Act of July 28, 1866, c. 299—" to fix the military peace estab- lishment," at the end of the war, the President was authorized by Con- gress "to enlist and employ in the Territories and Indian country a force of Indians, not to exceed one thousand, to act as scouts, who shall receive the pay and allowances of cavalry soldiers, and be discharged whenever the necessity for their further employment Is abated, or at the discretion of the department commander." Under this provision" such scouts are now employed in our service, as a force indispensable to the successful prosecution of warfare with hostile Indians. By a General Order, No. 28, of March 9, 1892, It was directed by the Secre- tary of War that certain troops and companies of the cavalry and Infantry of the army " will be recruited by the enlistment of Indians to the number of fifty- five for each troop and company." Instructions as to the details of such enlistments are added, and it is specified that the same are to be "carefully distinguished from enlistments of Indian scouts. " This is believed to be the first instance in which the enlistment of Indians in our military service has been effected by executive order only, and without authority of Congress. In the opinion of the author, such enlistments must be held to be without legal sanction unless Congress by appropriate legislation shall ratify the same." 835 Persons of African descent. No Act of Congress, as observed by At- torney General Bates,"" has ever "prohibited the enlistment of free colored men into the national military service." In point of fact this class of persons were enlisted and served as soldiers both in the Revolutionary war" and the war of 1812." After the adoption of the Constitution, however, it was not till the period of the recent rebellion, that their employment as soldiers came to be expressly authorized. Then, under the Acts of July 17, 1862, c. 195, s. 11 ; July 17, 1862, c. 201, s. 12 ; and of March 3, 1863, c. 78, s. 10, they were employed, first as laborers, teamsters, and cooks, and presently as en- listed soldiers, until, by the close of the war, there had been organized and added to the army about one hundred and forty regiments of colored troops." " See J.2 Oplns. At. Gen., 246, where It was held that the soldiers of these reglmenta were entitled to bounty in the same manner as other volunteers. [Of these Indian troops Atty. Gen. Stanbery observes In this opinion that " It abundantly appears," from the testimony of the general and other officers who had commanded them, that they " served In various States, did good service, took part in many battles, and were excellent sol- diers."] The other Indian regiments, the " Fourth " and " Fifth," were partly recruited but not completed. See Joint Resolution of June 30, 1864. The Indians enlisted dur- ing the war appear to have consisted mostly of Cherokees, Creeks, Semlnoles, Osages, Delawares, Shawnees, Uchees and Pottawattomles. ''Incorporated in the Revised Statutes as Sec. 1112. And see the Act of Aug. 12, 1876, c. 263, continuing this section in force, and providing further for " a proportionate number of non-commissioned officers " for the scouts employed. " Since the above was written, an Indirect ratilflcation of the enlistment of Indians has been expressed in the recent Act of Aug. 1, 1894, " to regulate enlistments In the Army," by the provision, in Sec. 2, that hereafter, " In time of peace, no person, (eeoept on Indian,) who is not a citizen," &c., " shall be enlisted for the first enlistment In the Army." » *" 11 Oplns., 57. The Act of December 10, 1814, uses the term " free " In the de- scription of the class of persons made eligible to enlistment, but the word " white" is not to be found in any statute on the subject. Its insertion in the Army Regulatfons from 1821 to 1861 was a striking Instance of legialation by an executive department. " 1 Jour. Cong., 238 ; Sparks' Writings of Washington, vol. Ill,, p. 219. " See 11 Oplns. At. Gen., 58 ; 1 Id;, 603. " Volunteer Register, Part VIII. Even the Confederate States Government authorized, near the end of the war, the raising of "companies of negro soldiers." Official com- munication of Confederate Secretary of War, to Major Pegram and others, A. & I. 6. O., March 16, 1865. 542 MH-ITAIIT LAW AND PRECEDENTS. A large proportion of these men had but lately been slaves, but by a provision of one of the Acts cited, (s. 13 of July 17, 1862, c. 201,) it was declared that every slave, upon being received into the public service, should " forever there- after be free." The President's emancipation proclamation followed on Janu- ary 1, 1863, with a general application to all slaves. At the end of the war, in the peace establishment as fixed by the Act of July 28, 1866, two cavalry and four infantry regiments of colored soldiers were provided as a part of the permanent miUtary force: the four infantry regiments have since been consolidated into two." Age. tinder its Constitutional power to determine what persons shall com- pose the Army, Congress may fix, and has heretofore fixed, the age at which soldiers shall be enlisted. By the existing law— Sec. Ili6, Rev. Sts., 836 (as amended by the recent Act of August 1, 1884, " to regulate enlistments in the Army of the United States,") — recruits, or persons enlisting for their first enlistment, must be between the ages of sixteen and thirty at the time of the enlistment ; but — it is added — " this limitation as to age shall not apply to soldiers re-enlisting."** The power having thus been exercised, no executive order or regulation can avail to exceed or modify the limits estab- lished by the statute.** ENLISTMENT OF MINOBS. That Congress, in fixing the age of enlist- ment, may permit the enlistment of minors has been repeatedly adjudged by the coiirts.** " The age," observes the Supreme Court," " at which an Infant shall be cbiiitetent to do any acts or perform any duties, military or civil, depends wholly upon the legislature;" and Congress has from an early period authorized, in its legislation, the enlistment of persons under 21 years of age.** "Fy the Act of March 3, 1869, c. 124. (Sec. 1108, Rev. Sts.) " See the provlaions as to re-enllstment in the Act of August 1, 1894. *"The direction In Circ. No. 10, (H. A.,) of September 4, 1894, that, "in view of the small number of vacancies in the Army and consequent restrictions upon recruiting, no person under the age of twenty-one years will be enlisted until further orders, boys as musicians or to learn music excepted " — ^is believed to he of doubtful authority. " " It cannot be doubted that the power to enlist minors into the service is included within the powers delegated to Congress by the Constitution." TI. S. v. Bainbridge, 1 Mason, 80. And see In re Davison, 21 Fed., 618 ; In re Cosenow, 81 Fed., 670 ; U. S. v. Stewart, Crabbe, 266 ; In re Eiley, 1 Benedict, 409 ; Lanahan v. Blrge, 30 Conn., 438 ; Com. v. Barker, 5 Bin., 426 ; In re Disinger, 12 Ohio St., 261-2 ; U. S. V. Blakeney, 3 Grat., 416; Com. v. Morris, 1 Phllad., 381 ; 4 Opins. At. Gen., 60T; e Id., 474, 484. A minor's contract of enlistment is held valid at common law. King v. Kotherfleld Greys, 1 B. & C, 345 ; Com. v. Gamble, 11 S. & E., 93 ; D. S. v. Blakeney, 3 Grat., 411 ; D. S. V. Lipscomb, 4 Grat., 41. "In re Morrissey, 137 tJ S., 159. " See Acts of April 30, 1790 ; March 3, 1795 ; March 16, 1802 ; Jany 11 1812 • Jany 20, 1813 ; Jany. 29, 1813 ; Dec. 10, 1814 ; Feb. 13, 1862 ; July 4, 1864. ' In all these statutes, eicept the last, the minimum age for enlistment Is fixed at 18 years ; In the last, enlistments, (with consent,) of persons as young as 16, ire legalized.. (The latter age was also established as the minimum early in the .war of the Eevolution, by Resolution of Congress of Jan. 17, 1776. See 1 Jour. Cong., 239, U. S. v. Blakeney. 3 Grat., 441.) In the Acts cited the maximnm age is variously fixed at thirty-five, (March 16, 1802;) forty-five (Jan. 11, 1812, Jan. 20, 1813, and Jan. 29, 1813;) forty-six, (April 30, 1790, March 3, 1795, and May 30, 1796;) and fifty (Dec 10 1S14.) The Commissioners for the Eevision of the Statutes decided that the pro- vision of the Act of 1802, fixing the maximum at 85 years, was still unr^ealed; an upon this provision, and that of the Act of July 4, 1864, as establishing a mmlmum, they stated it as the existing law that recruits, at enlisting, must be " t,et«,een the ages of starteen and thirty-five years,-" and it was so enacted in Sec. 1116 of the Eevlsed Statutes [As has been seen, thirty was substituted for thirty-five by the Act 01 aU^USI Xf laU4* ] MILrTAEY LAW AND PRECEDENTS. 643 8S7 It has further been adjudged, and Is settled law, that Congress may authorize the enlistment of minors without the consent of the parent or other person who may be entitled to their custody or control and the benefit of their services." In general, Indeed, In time of peace. Congress has allowed to the parent or guardian, If any, of an unemancipated minor, the right to withhold consent to, and thus prevent, his enlistment." 838 At certain periods, however, when the public Interests have appeared tp require It, such consent has been In express terms or by Implication dis- pensed vyith, and enlistments without It thus legalized." It Is thus perceived that the rules of the common law governing the contracts of Infants, vim. — that the same, (except when " beneficial," as where made for supplying the necessaries of life,) are voidable upon the infant's coming of age and may then be confirmed or repudiated by him at pleasure ; and further that such contracts, when for personal services, cannot be entered into without the concurrence of the parent, or person in loco parentis, If there be one, to whom such services are originally due, — ^have no necessary application to a contract of enlistment in the military service ; the former having no appli- cation In any event, and the latter only iwhere recognized by existing legis- " " Congress mar constitutionall; authorize the enlistment into the service of any minors, Independent of the private consent of their parents." Story, J., In TJ. S. v. Sainbridge, 1 Mason, 81. Congress " may require consent or omit to require It." In re Riley, 1 Benedict, 410. " It may make the consent of parents or guardians necessary for a valid enlistment, or may altogether dispense with such consent." In re Beswick, 2B How. Pr., 151. And see U. S. «. Stewart, Crabbe, 266; In re McLave, 8 Blatchford, 72; Lanahan v. Blrge, 30 Conn., 444; Com. «. Downes, 24 Pick., 227; In. re Dlsinger, 12 Ohio St., 256 ; In re Gregg, 15 Wis., 479 ; In re Higgins, 16 Id., 351. " Consent is expressly required for the enlistment of minors by the Acts of March 16, 1802, Jany. 11, 1812, Jany. 20, 1813, Jany. 29, 1813, Sept. 28, 1850, and by the existing law — Act of May 15, 1872, incorporated in Sec. 1117 of the Revised Statutes. ■ In the earlier Acts the consent of the " master " was required to the enlistment of an " apprentice." Acts of March 16, 1802 ; Jany. 11, 1812 ; Jany. 20, 1813 ; Jany. 29, 1813. And see the Act of Dec. 10, 1814 ; Resolution of Congress of Jany. 30, 1776. See also the early cases of Com. v. Barker, 5 Bin., 423 ; State v. Brearly, 2 South., 555 ; Com. v. Harrison, 11 Mass., 63, which were cases of applications for the discharge of apprentices enlisted without the consent of their masters. A more recent instance is Reilly's Case, 2 Ab. Pr. (N. S.) 334. Where the statute, as in the case of the existing law, requires the consent of the " parent's " of the minor, the consent alone of the father, if he has the legal custody of the child, will be sufiBcient, though the mother be living. Where the father is deceased, and there is a mother entitled to the legal custody, her consent is essential and sufficient. Ex parte Mason, 1 Murph., 336; Com. v. Callan, 6 Bin., 255. In Com. V. Camac, 1 S. & R., 88, it was held thnt a consent given In writing five or six days after the enlistment was sufficient, as duly ratifying the engagement of the minor. Consent is " a virtual emancipation " of the minor during the term of his enlistment, and entitles him to " receive and control ' such pay, &c., as may accrue to him from the government under his contract. Baker v. Baker, 4 Vt., 57. While the consent of the parent or guardian of an alien is required In the same manner as that of any other enlisted minor, provided he has a parent, &c., resident In this country, (Com. ». Harrison, 11 Mass., 63,) it is otherwise if his parent, &c., la not domiciled in the United States. In the words of Attorney General Gushing, to make the consent essential te the contract, the alien " must have a parent or guardian whose authority, as such, pver the person of the enlisted minor, is known and recognized as valid by the law of the place where the enlistment is made." 6 Opins., 610. "See the Acts of Dec. 1814, Feb. 13, 1862, Feb. 24, 1864, and July 4, 1864, as construed and remarked upon in Phelan's Case, 9 Ab. Pr. 286; Lanahan v. Blrge, 30 Conn., 445 ; 12 Opins. At. Gen., 265 ; and also in In re McDonald, Lowell, 100 ; In re Kimball, 9 Law Rep., 500. And see further, in this connection, — In r? Riley, 1 Bene- dict 408; In re Beswick, 25 How. Pr., 152; Reilly's Case, 2 Ab. Pr., 337; In re Gregg, 15 Wise, 479 ; In re Higgins, 16 Id., 351 ; 14 Opins. At. Gen., 210. 544 MILITARY LAW AND PKECEDENlS. latlon." For this Is not like an ordinary contract between private parties': It is, as bas been noted, an engagement to serre the State, which is entitled to avail Itself of the personal military service of any of its able-bodied citizais of whatever age, when needed for the public defence and welfare." This 839 right, being exercised for the commdfa good, must be' paramount to all individual claims. Public policy requires that neither the rights at common law of the minor contractor, no(r those of his parent, guardian, or master, shall be asserted against the United States, except in so far as they may have been expressly recognized and conceded by existing' statute." Thus, as it has frequently been held, a minor* enlisted without consent of I>arent or guardian. Is not himself entitled to receive a dlschbi^e from the service by reason of such minority, nor — if the United States elected to hold blm — would the parent, &c., be entitled to have hin* discharged in the absence of some such express authority as that of Sec. 1118, Rev. Sts." FEBSOITAIi QUALIFICATIONS. It cannot be doubted that Congress is ex- clusively empowered, under its institutional authority "to raise and- support armies," to prescribe what shall be the personal qaalifieations — physical, moral, intellectual, &c. — of persons admitted into the military service; It 'has 840 heretofore done so by specifying In several of the earlier statutes that such persons shall be " at least five feet, six inches, in height," " and that they shall be "effective and able-bodied men.'"" The former condition, however, was done away with by the Act of July 5, 1838," since which date ■ In re Gregg, IB Wis., 481 ; U. S. v. Bainbrldge, 1 Mason, 84 ; U. S. v. Blakeney, 3 Grat., 409 ; U. S. v. Cottlngham, 1 Rob., 635. And see Lanaban v. Birge, 30 Conn., 444 ; Eobert's Case, 2 Hall, Am. L. J., 195. The doctrine that the enlisted minor may avoid his contract, on his coming of age while still In the service, has Indeed been maintained In a few cases.. See State v. Dtmlck, 12 N. H., 194 ; In re Dew, 25 Law Rep., 540 ; 4 Oplns. At. Gen., 350. But these mlings are opposed by the great mass 6t authority. •• See In re Grtmley, 137 U. S., 153. " " By the general policy of the law of England, the parental authority continues until the child attains the age of 21 years ; but the same policy also requires that a minor shall be at liberty to contract an engagement to serve the State. 'When--mich an engage- ment Is contracted. It becomes Inconsistent with the duty which he owes to the public that the parental authority should continue, and It Is, therefore, suspended." King v. Botherfleld Greys, 1 B. & C, 349-50. " The Government of the United States hag the right, whenever it thinks the exigencies of the country require It, to command the services of any of Its citizens, and It is the sole judge of that necessity. If It so determine, it may enforce its right to command such service," (through legislation of Congress,) "and thus override the usual and legal claims of parents and guardians." In the matter of Beswick, 25 How. Pr., 151. Especially in time of war is the claim of the parent, Ac, to the services of the minor to be subordinated to that of the Govern- ment. See /h re Dislnger, In re Kimball, In re McDonald— «nte. S-ome Of the authorities take occasion to suggest that a minor's contract of enlist- ment may be sustained on the ground that it is a "beneficial" contract, or one for necessaries -part of the consideration being certain rations, clothing, fuel, quarters, medical attendance, 4c. See TJ. S. v. Bainbrldge, 1 Mason, 84; In « Gregg 16 Wis 1 rrE^flS^T's'f- «,'t' '°= ',*'^** "•^'^"'^' ' «»"«'• 5«2: also Co^;. Gamble W Holffl' qk' r . ^""^^Y' 3 Grat., 416; In re Dislnger. o^te; tJ. S. ». Jones 18 Howard, 95. But in general it has been preferred to support the contract upon "the "Srooder grMma of public policy." (Com. v. Gamble.) ™niraci upon tne " See post, FODETH AHricLn— '■ Discharge of Minors " the"LVA\t-";Uh?ufsho;s^''"' ^^-^'^ '■ '-"'■• ^»-'> "• ^«°^- " ^- "•'^ed In 20."ll'l3!'^"\V'l^ir*"' "««= ^"'='' ^«- 1«<>2= D- 24, 1811; Jan. 11, 1812 ; Jan. -Expressly repealing in this respect the provision of March 16, 1802. MILITAKY LAW AND PRECEDENTS. 545 there has been no statutory requirement as to height ; "* the latter qualiflcatlon, as to physical efficiency, still subsists as a part of the existing law on the subject.™ Congress has also prescribed further qualifications, both mental and moral, for persons entering the army, which are now collected in Section 1118 of the Revised Statutes." EFFECT OF STAT0TOBY PROVISIONS AS TO QtlALIFICATIONS FOB EITLISTIIENT. Here may properly be examined the question whether the enlistment of a person not possessing one of the qualifications, or possessing one of the disqualifications, specified in Sees. 1116 to 1118 of the Revised Stat- utes, would be absolutely void, or would be only unauthorized and so capable of being ratified by the waiver and act of the government. In 1843 this ques- tion was considered by the Supreme Courts of New York and Virginia, in the cases of IT. S. v. Wyngall " and U. S. v. Cottingham," with reference to the terms of the Act of May 16, 1802, and it was held that this statute, which, among other things, indicated " citizens " as the class of persons to be enlisted, was directory, or one of "restrictory direction " only, and that an enlistment of an alien was not illegal but that the objection might lawfully be waived and the enlistment adopted and ratified by the government. Similarly, the existing law, as contained In the Revised Statutes, relating to the personal quali- 841 fications of individuals for enlistment, is regarded as directory only," or — as has been repeatedly held in the later cases — as rendering enlist- ments of the classes of persons designated not void but merely voidable at the option of the government." In this view — ^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, or is too young to properly perform military service, the government may elect to hold the soldier to service, sub- ject to such application for discharge as may be made to the Secretary of War under Art. 4, or to a United States court on haieas corpus." That the United States should be held to be precluded from ratifying an irregular enlistment where the disqualification did not impair, or had ceased to impair, the value of the soldier, who meanwhile had performed service, received pay, &c. ; " or "The subsequent fixing of the height, (at five feet, three Inches,) by Army Regula- tion, (see par. 929 of 1863,) was subject to the objection that it entrenched upon legis- lation. This matter Is now regulated by " instructions issued from time to time." Par. 913, A. E. "In Sec. 1116, Rev. Sts. •1 And see the Third Article of War, and the corresponding law as to the Navy — Sec. 1420, Rev. Sts. «2 5 Hill, 16. « 1 Bob., 631 — a very Instructive case. And see the analogous case of Com. i;. Barker, 5 Bin., 427, per Tilghman, C. J. " In their original form, (see, especially, Acts of July 4, 1864, o. 5, and of March 3, 1865 s. 18,) Sees. 1116-1118 were in effect mostly directions to recruiting offlcera, &c., a non-compliance with which-^it was provided— should subject them to military trial and punishment, — as now specifically enjoined in Article 3. « DiGKST 385-6. And see In re Graham, 8 Jones' Law, 416 ; Cox v. Gee, Winst. L. 6 B 131 • In re Grlmley, 137 U. S., 152 ; In re Cosenow, 37 Fed., 670 ; In re Davison, 21 Fed., 618; In re Zimmerman, 30 Fed., 176; In re Dohrendorf, 40 Fed., 148; In re Spencer, Id., 149. „, „ j, r> "In re Cosenow, 37 Fed., 670. In the recent case of In re Davison, 21 Fed. Rep., 618, the court expresses the opinion, incidentally, that enlistments of persons under 16 "Compare Holbrow iJ. Cotton, 9 Quebec Law Reports, 105, where it Is held that— "An Informality in the enlistment of a soldier cannot be involved by him as relieving him from military discipline whUe voluntarily serving with his corps." 440593 0-42-35 546 MIUTABY LAW AND PBECEDENTS. where the soldier had committed a military offence and his trial by court- martial and punishment were called for by the interests of discipline,— would be an unfortunate contingency and against public policy. ENIiISTMENTS IN CONTRAVENTION OF AKMY BEGTTLATIONS. As to army regulations, these, when full force Is given them, can be nothing more than executive directions;" and where a regulation prescribing a formality or condition to be observed upon enlistments is not complied with in making a particular enlistment, it is clear that the validity of the same is not 842 so afEected as to entitle the party, because of such error or omission, to a discharge, against the consent of the government. This was Indeed specifically so ruled by Wayne, J., of the U. S. Supreme Court, in a case on circuit in 1861 ; " and more recently it has been held in a U. S. Court that an enlistment of a married man, in derogation of a regulation requiring, generally, that recruits should be unmarried, was not illegal, and that the party had no claim to be discharged on habeas corpus.'" In a further case in a State court," the court, in holding an enlistment to be valid though it did not comply with certain instructions to recruiting officers issued by the War Department, adds — " We cannot in cases of this kind look beyond the laws of Congress." " This class of rulings might indeed be sustained upon another and a superior ground, viz. that the regulation of enlistments is a matter for the most part quite beyond the province of army regulations. As already indicated, it belongs exclusively to Congress to determine what descriptions of persons shall be employed in our armies and upon what conditions, and for the executive department to prescribe rules on the subject would amount to a transcending of legitimate authority and assumption of legislative power." 3. THE TERMS OE THE CONTRACT or engagement of military 843 service " are also clearly within the constitutional authority of Congress. Thus it is that department of the government alone that can fix, on the one hand, the period of enlistment, and, on the other, the consideration which the soldier shall receive for his service, that is to say the pecuniary compensation that is to be paid him and the rations, clothing, &c., that are to be furnished him. All these matters have, from time to time, been regulated, by the legisla- " See ante. Chapter III — "Army Regulations." "In re Stevens, 24 Law Eep., 205. ^Bx parte Schmeld, 1 Dillon, 587. And see Ferren's Case, 3 Benedict, 442, where It Is observed by Blatchford, J., In regard to the requirement In question, that it is " a mere regulation made by the War Department, directory to its subordinates, and not a ttatutory enactment." n In re Dlslnger, 12 Ohio St., 262-3. »" See also O'Brien, 86. " See McCall's Case, 5 PhUad., 259 ; Lanaban v. Birge, 30 Conn., 438, aAd other cases heretofore referred to on the subject of the exclusive power of Congress, under the Constitution, over the subject of enlistments ; also citations last made from Ferren's and Dlsinger's cases. And compare Instances, previously noted, of legislation by regulation, In prescribing the color and height of recruits. See also ante. Chapter III, "Army Regulations — They must not Ipgislate." "The engagement is of course to pirform military service as a soldier: an enlistment entered into with the understanding that the party was to serve In other than a military capacity— as a laborer or clerk, for example— would be unauthorized and Illegal. The illegality of employing a commissioned ofBcer of the army on purely civil duty in the absence of express authority of Congress, has been remarked upon in several cases by the Judge Advocate General. See Digest, 164-5, 241, note, 542, 575. MILITAKY LAW AND PRECEDENTS. 547 tion of Congress." That, where Congress has fixed the term of enlistment at five years, the President is not empowered to authorize an enlistment for a shorter term, was noticed In an early opinion of the Attorney General ; " and it was added — " The executive department has discretionary authority 844 to discharge," (expressly conferred by Congress In the 4th Article of war,) "before the term of service has expired, but has no power to vary the contract of enlistment." As to the consideration, this — as has been re- peatedly done in the case of the pay both of officers and soldiers— may be modified by Congress at discretion ; the change affecting soldiers under pending enlistments equally with those enlisted subsequently. IV. FOURTH ARTICLE. [Discharge of Soldiers.] "Akt. 4. No enlisted man, duly sworn, shall 6e discharged from the service loithout a discharge in writing, signed hy a Held offlcer of the regiment to which heJbeVangs, or by the commanding offlcer when no field offlcer is present; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the President, the Secretary of War, the commanding offlcer of a department, or by sentence of a general court-martial." This Article, which first appeared in our law in Art. 2 of Sec. Ill of the code of 1776," consists of two separate provisions, and will be considered ac- cordingly under the heads of — I. Requirements as to discharge In general ; II. Discharge before expiration of term of service. " Term. Enlistments have been authorized by statute for various terms, from 100 days, (Act of May 6, 1864,) to five years, the term commonly prescribed for time of peace. Also-^ln time of war— for " during the war ; " or for a certain period, as three or five years, " or during the war." (See J. E. of Jan. 23, 1779, Oct. 21, 1780, and June 21, 1862; and Acts of Jan. 12 ahd Feb. 11, 1847.) As to the extent of this term, (so many years, &c., " or during the war,") see Breltenbach y. Bush, 44 Pa. St., 317 ; Clark v. Martin, 3 Grant, 393 ; 4 Opins. At. Gen., 539 ; G. 6. 101, Dept. of Va., 1865. The present term is fixed at three years, by the Act of August 1, 1894. Compenaation. The pay of enlisted men as fixed by Congress, has varied from $61 per month, " the soldier to find his own arms and clothes," (Resolution of June 14, 1775,) to $16 per month, with $18 for first-class privates of the engineer and ordnance corps. (Act of June 20, 1864.) The present pay is mainly fixed by Sees. 1280-1284, Rev. Sts. Bat see a full statement of the existing pay of the various grades in G. O. 56 of 1893. Bubsistence. The soldier's ration, as added to and modified by a series of statutes, is now established by Sec. 1146, Rev. Sts., by which also the President is expressly authorized to " make such alterations in the component parts of the ration as a due regard to the health and comfort of the Army and economy may require." Alterations have from time to time been made accordingly. The full army ration set forth in par. 1367, A. R., has been increased by the "one pound of vegetables" added by the Act of June 16, 1890. Clothing. Congress, by the Act of April 24, 1816 (Sec. 1296, Rev. Sts.,) has devolved upon the President the authority and duty of prescribing the "quantity and kind of clothing which shall be issued annually to the troops." Quarters and Fuel. These are matters provided for by Congress -In the annual appropriations for the Quartermaster Department. The proportionate allowances are fixed by par. 1098, A. R. " 4 Opins., 537-8. And see 15 Opins., 362 ; G. O. 82, Dept. of Dakota, 1869. " The concluding provision of the corresponding Article of the code of 1806 has been transferred, in the present code, to Art. 89. 548 MILITABY LAW AND PBECBDENTS. I. Eequibements as to Dischabgb in Genebau EFFECT AND APPLICATION OF THE PROVISION. The first clause of the Article Is a general provlsitm to the effect that all soldiers, when dis- charged from the military service, shall receive an Instrument of discharge in writing signed by a commanding or other specified officer, as the legal evi- dence that they have been discharged in fact." This requirement applies equally to aU discharges of the three kinds known to the law, viz. (1) the ordi- nary discharge given at the expiration of the term. of enlistment; (2) the 845 summary discharge before expiration of term, authorized by the second clause of the Article— these two sorts being "honorable" discharges; and (3) the dishonorable discharge adjudged by, and given in pursuance of, a sentence of general court-martial. In specifying the two classes of military discharge, the Article is not of course intended to cover or apply to discharge by judicial authority." But a discharge by the granting of a writ of habeas corpus is simply an order of court directing a discharge, which, (where the discharge is from the military service,) will then properly be given as prescribed in this Article. FOBU OF THE DISCHABGE. This is a printed declaration or certificate of fact of discharge, describing the party by his rank, regiment, &c. Being, except as to the details specified in the Article, matter of form, it may be and is completed, as to its contents, by army regulation " and the practice of the service. As directed in par. 143 of the Army Regulations," the cause of the discharge must be set forth in the body of the certificate — vie. expiration of term of service, order, or sentence." DELIVEBT OF DISCHARGE. It is clearly inferable from the Article that there should be a delivery to the soldier of the written form in order to give effect to the discharge, and that the discharge will not properly take effect without or till delivery. The delivery, however, is not necessarily personal; it may be constructive. Thus, where a soldier, while held in military custody; is discharged by reason of a sentence imposing dishonorable discharge to be followed (or preceded,) by a term of confinement, the delivery of the writ- ten discharge to the officer In command, for the prisoner, to be retained by the officer and rendered to the prisoner at the end of his term of confinement, being a delivery to the use and for the benefit of the prisoner, may properly be regarded as a delivery to him in law, and is so treated in practice." 846 SELF-DISCHARGE. The discharge is the act of the United States through its official representative. It results from the terms of the Article, — as it would indeed result from the principles governing military enlistments independently of statute, — that a soldier, legally in service, can- " That the formal discharge Is evidence not only of the fact of discharge but of the circumstances—when the same are stated — under which the discharge was given, see Board of Comrs. «. Mertz, 27 Ind., 103 ; Hanson v. S. Scituate, 115 Mass. 336 ; U. S. ti. Wright, 5 Phila., 296. " See the reference to judicial discharge in par. 138, A. E. ""The regulations on the subject are mostly contained in Art. XXI, A. R. «■ Amended by G. O. 38 of 1890. " That the certificate is not the discharge, but only the " evidence " of it, see 13 Oplns. At. Gen., 18. •• See Chapter XX — " Dishonorable discharge." Where the sentence of confinement is to be executed at a post other than that of the company, Ac, of the prisoner, the discharge should be forwarded to the commanding officer at the place of execution. Regulations in regard to the retaining of such discharges till the release of the pris- oner from confinement, exist at the Prisons at Fort Leavenworth and Alcatraz Island.' MILITARY LAW AND PRECEDENTS. 549 iQOt discharge himself." So strictly Is this rule applied that a soldier leaving his regiment without a regular discharge, though he immediately re-enlist in another regiment, is punishable under the 50th Article of war as a deserter. SISCHAKGE AS A KIQHT. But a soldier, though he may not discharge himself, is entitled, at the expiratioa of his term of enlistment, — except possibly In the presence of some extreme emergency justifying the government In temporarily retaining his services for the public defence, — to be forthwith dis- charged according to the Article." His contract has been performed and com- pleted, and a new and Independent contract is necessary in order to hold him for a further term. II. DiscHABOE Befobb £!xpibation of Term of Service. THE TWO KINDS BISTINGUISHED. Two kinds of this discharge are authorized and recognized by the Article, — dlscha!rge by the order of certain executive or military officials designated, and discharge by sentence of general court-martial. The two are clearly distinguished by the fact that, while the latter is a punishment imposed upon a trial and conviction of a military offence, the former is a mere terminating or rescinding of a contract.™ The latter is thus known as a " dishonoraile," while the former Is generally desig- nated, and is in a legal sense — i. e., in that it does not subject the party to any forfeiture or disability attaching to discharge by sentence " — an " honor- able " discharge. 847 The punishment of dishonorable discharge has already been considered in Chapter XX.. DISCHARGE BY OBDEB. In Its provision on this subject the Article Illus- trates the general principle of public law, heretofore noticed," that a. contract of enlistment is subject, pending its continuance, to be modified by the authority of Congress, irrespective of the will of the individual, the public interest being in. such a case paramount to the private. Here Congress has exercised such authority by vesting alike in the President, the Secretary ot War and d^art- ment commanders, the power to discontinue the contract at any time at discre- tion. Strictly — it may be remarked — these commanders cannot, in the exercise of such authority, legally be restrained by their superiors. In practice, how- ever, It is commonly from the War Department that discharges' have been ordered under this Article, and the principal grounds and occasions for the same have been — the termination of a state of war or hostilities rendering certain troops no longer necessary; inefficiency, unfaithfulness, sickness or disability on the part of the individual soldier ; and minority. The power thus restricted cannot of course legally be exercised by any official other than those specified. In a case in which the right to discharge was claimed by a commander not Indicated in the Article, Attorney General Berrien, in remarking that such right could not be asserted as attaching to command as such, observed as follows—" The authority to rescind a contract between the United States and the individual — which is the effect of the discharge — is a power which can exist only by virtue of an express grant ; it is not dependent on rank, but simply on the provisions of the law. Under the Article which we "Wilbur V. Grace, 12 Johns., 71. »U. S. V. Travere. 2 Wheeler Cr. C, 508, (Brunner, 486,)— Charge to the jury by Story, J. ; Prendergast, 42 ; Diobst, 20. "2 Opins. At. Gen., 353. " See post — " Its legal etEect." " Ante. pp. 830, 838-9—" Third Article." 550 MOiITAKY LAW AND PRECEDENTS. are now considering, the general commanding the army of the United States can- not grant a discharge which may be granted by his inferior officer who chances to be in command of a department." " Its legal effect. The legal effect of this discharge, like that of an ordinary discharge at the expiration of the term of enlistment, is to separate the soldier honorably and finally from the service under his contract. In law such 848 discharge is "honorable," whatever may have been Its grounds or the circumstances under which it was given."* Though its subject be a de- serter," an offender in arrest or on trial," or a convict uader sentaice of im- prisonment," he leaves the service in good standing leffally, being entitled to all pay due and to the enjoyment of all the other rights of an honorably dis- charged soldier. Such discharge is also final in detaching the recipient abso- lutely from the army under the enlistment to which it relates, and, so far, from military jurisdiction and control," and, {thus far also,) remanding him to the status and capacity of a civilian. While an order for such a discharge may be recalled before it is executed, the discharge once duly delivered can- not be cancelled or revoked, except where obtained by falsehood or fraud." WhUe a discharge of this class cannot, strictly, be other than " honorable " in law, its cause or occasion, though not creditable to the party, may be stated as a fact in the body of the certificate, and its true history thus be officially declared : further, where the party is discharged for inefficiency or the like, the "character," so called, at the foot of the discharge, may, being properly no part of the discharge, be cut off or left blank. DISCHARGE " WITHOUT HONOR." This is a species of discharge re- cently introduced into our practice, as supposed to be warranted by the Fourth Article, and proper to be given where the circumstances which have induced the discharge are discreditable to the soldier."" But the distinction between a discharge "with honor" and a "dishonorable" discharge is fanciful 849 and unreal, and, in the opinion of the author, It is open to discussion whether this newly invented form is legally authorized under this Article; In all cases, as above indicated, the cause or occasion of a summary discharge may properly be set forth in the body of the certificate, and the material thus be furnished for any future adjudication in the event of a legal question being raised upon the effect of the discharge. The so-called discharge "without honor " is thus believed to be as unnecessary as it is of doubtful authority. BISCHAUGE OF HINOBS, BY THE SECBETAUT OF WAS OB ON HABEAS COBFUS. Where it is established to his satisfaction by the testi- mony of parents, or the affidavits of other credible persons, that an un- »2 Oplns. At Gen., 353. '° See case ot a soldier tried for mutiny, cited In DiGbai, 356. " In which case the discharge operates as a remission of the unexpired tmrtlon of the confinement. See ante. Chapter XXI — " Constructive Pardon." " See White v. McDonough, 3 Sawyer, 311. "That a discharge obtained by falsehood and perjury could be treated as a nullity and cancelled was held by the Attorney General in Coleman's case. 16 Opias., 352. •* See 14 Opins. At. Gen., 583. ■• U. S. V. Kelly, 15 Wallace, 36. "In Clrc. No. 15, (H. A.) 1893, it is directed as follows — "The blanks for discbarge ■ without honor ' will be used In the following cases only. (o) When a soldier is discharged without trial on account of fraudulent enlistment. (6) When he is discharged without trial on account of having become disqualified for service, physically or in character, through his own fault. (c) When the discharge is on account of Imprisonment under sentence of a civil court. (d) When at the time of the soldier's discharge, at or after the expiration ot his term of enlistment, he is in confinement under the sentence of a general court-martial which does not provide for dishonorable discharge." MILITARY LAW AND PKECEDENTS. 551 emancipated minor has been enlisted without his parents' consent, the Secre- tary of War may order a discharge under the authority given him by the Fourth Article of War. As this is now the only enactment on the subject, he is not, as formerly, restricted by any provision of law in his inquiry as to the true age of the party." If the enlisted minor be, at the time of the application for his discharge, held in arrest with a view to trial for deser- tion or other military offence, or under sentence adjudged upon conviction of such offence, the Secretary of War will properly refuse to grant the applica- tion, though made by a parent and in good faith. In such an instance the ' claims of the private individual — the parent — are deemed to be subordinated to the interest of the public in the due administration of justice and mainte- nance of military discipline, and the minor soldier is therefore required to abide and undergo the legitimate consequences of his own wrong before any petition for his discharge from his contract can be entertained. 850 To this effect have also been the rulings, on habeas corpus, of the civil courts, which have repeatedly refused to discharge pilnors under the circumstances indicated. A succession of such rulings on the part of the United States courts, (for a State court would of course be wholly with- out jurisdiction in such a case,") have fully established the following points — 1. That a minor soldier cannot avoid his contract of enlistment either be- fore or after minority ; that his enlistment is in no case void, but is voidabie only at the pleasure or option of the United States, which, if it see fit, may hold him to service, subject only to the claim of the parent or guardian : 2. That an application by the recruit himself for discharge on account of minority will not be entertained ; that an application by the parent or guardian only, made during the minority, will be entertained and favorably considered : 3. That where the minor, otherwise dischargeable, is 4uly held for trial for desertion (or otlier military offence,) or' under sentence on conviction of such, he cannot legally be discharged even at the suit of the parent." The principle of these adjudications has been recently applied by the Supreme Court to the case of a person enlisting when over age, (i. e. when over 35 years of age, the then limit,) in which it was decided that the soldier was not entitled to discharge on habeas corpus, not merely because he was held under sentence for desertion, but because he could himself no more avoid his contract than could a person enlisting when a minor."" BISCHABGE BY PURCHASE. By a recent enactment of June 16, 1890, (c. 426, s. 4,) it is provided— " That, in time of peace, the President may, in his discretion and under such rules and upon such conditions as he shall 851 prescribe, permit any enlisted man to purchase his discharge from the Army." The rules, &c., several times amended, are, in their last form, published in G. O. 17 of 1893. It is here declared that this discharge, which, it ig remarked, " is not an inherent right but a privilege to be granted entirely "See 14 Opins. At. Gen., 210; Seavey v. Seymour, 3 Clifford, 440, 447. An Act of Feb 13 1862 provided that the oath of enlistment of the recruit should be " con- clusive' as 'to his age." This provision has been In effect repealed by enactments of 1864 and 1872. And see G. O. 22 of 1892, amending par. 910, A. R. " Tarble's Case, 13 Wallace, 397, affirmed In Eobb v. Connolly, 111 U. S., 632. »/n re Wall, 8 Fed., 85; In re Davison, 21 Id., 618, U. S. v. Gibbon, 24 Id., 185, /„ re Zimmerman, 30 Id., 176; In re Hearn. 3? Id., 141; In re Cosenow, 37 Id., 668; In re Dohrendorf, 40 Id., 148: In re Spencer, Id.. 149; In re Kaufman, 41 Id., 876, Z Z Morrlssey 137 U. S., 157 ; Com. v. Gamble, 11 S. & R^ 93 ; McConologue'a Case, W7 Cs, 17o'; in maUer of B^swlck, 25 How. Pr., 149; E. parte Anderson, 16 Iowa, 599 contra, the rulings in In re Von Diese'skie, 5 Mackey, 485; In re Chapman, 37 Fed., 327 ; In re Baker, 23 Id. 30. must berejected as bad law. »•» In re Grlmley, 137 U. S., 147. 552 MILITAET LAW AND PKECEDENTS. In the discretion of the President, • * * shall be confined to the second year and the first half of the third year, of the first enlistment." The prices to be paid are fixed, and it Is directed that a soldier's application to be allowed to purchase his discharge will not be entertained In the absence of a certifi- cate of his commanding officer that the amount which shall be due him on his final statemaits wiU be "sufficient to admit of collection of the whole pur- chase price," &c. V. THE FIFTH, SIXTH, AND FOURTEENTH ARTICLES.. [False Muster, &c.] "Abt. 5. Any officer iclw knowingly musters as a soldier a person who is not a soldier shall he deemed guilty of knowingly making a faUe muster, and punished accordingly. "Abt. 6. Any officer who takes money, or other thing, by way of gratification, on mustering any regimsnt, troop, battery, or company, or on signing master- rolls, shall he dismissed from the service, and shall thereby be disabled to hold any offi.ce or employment in the service of the United States. "Abt. 14. Any officer who knowingly makes a false muster of man or horse, or who signs, or directs, or allows the signing of any muster-roU, knowing the same to contain a false muster, shall, upon proof thereof by two witnesses, he- fore a court-martial, he dismissed from the service, and shall thereby be dis- abled to hold any office or employment in the service of the United States." The natural order of these Articles, and that in which they have appeared In all previous codes, commencing with that of 1775,' is — 14, 5, 6. Art. 14, which has been misplaced in the present code and should be numbered 5, (the two others being properly numbered 6 land 7,) will, as being the most important, and in fact including Art. 5, be first considered. In the Appendix, the charges for false muster, &c., will follow the order of the code. 852 FotTBTEENTH ABTICLB. CONSTBtrCTION AND EFFECT — "False muster." The proceeding of muster may be defined as the assembling, Inspecting, entering upon the formal rolls, and officially reporting as a component part of the command, o'f persons or public animals. Forms of the ofEence of " false muster " were made punishable in the old British Articles, (particularly in those of Charles I and of the- Parliamentary Army,) and in Art. 121 of the Code of Gustavus Adolphus. Of the acts which may constitute a false muster, Samuel * mentions the following, which embrace all or nearly all forms of the offence as now understood •.^-" the substitution, on the muster-roll, of one man or horse for another ; ' the pre- senting of either a second time, under a different description, at the same muster; the mustering of any person by a wrong name; the mustering of a » " The corresponding provisions of this first code were Arts. 59, 60 and 61 ; of the code of 1806— Arts. 15, 16 and 17. ' The British articles of war in force from 1765 to about the beginning of the present century are those which most nearly resemble our own, which in fact were in great part taken from them. Of these articles Samuel, whose work — "An historical account of the British Army and of the Law Military " — was published in 1816, is the clearest and best exponent. 'In G. O. 103, Dept. of the Ohio, 1864, is a case of a conviction of a false muster in violation of this Article in mustering for pay a certain private as first sergeant, when another soldier of the command was the person entitled to be noted and paid a» such on the roll. MILITABY LAW AND PRECEDENTS. 553 person as a soldier who is not a soldier," (the kind of false muster specially made punishable by our Art. 5 ; ) " the Including of officers or men as present when they are In reaUty absent from their regiment, &c. ; the including of them as members of the corps or company after they are deceased or have been discharged; the representing of persons as effective who, because of some disability, are really ineffective in the sense of the law or regulations.* "■Knowingly" — "Knowing." The guilty knowledge, which is the 853 gist of the offences specified," may be proved by direct evidence, but, more generally, will be established Inferentially from circumstances indicating that the accused must, in all reasonable probability, have made the muster, or signed, &c., thj roll, with knowledge that it was in fact, wholly or in some material part or parts, untrue or deceptive. An officer will in general properly be charged with the knowledge of what it is- his office to Know, or what he is bound to know in the performance of the particular duty devolved upon him." Where it appears that the accused had knowledge of the false statement or entry, his motive or object in malting the muster, or signing, &c., the roll, is of no consequence In law.' Whether he aimed to defraud the United States, to secure some personal advantage, or to injure some individual, or whether his act was merely one of gross carelessness, without fraudulent or interested purpose, are questions quite immaterial to the issue of guilt or innocence : ' they are immaterial also to the consideration of the punishment, this being made mandatory by the Article upon conviction. " Two witnesses." This measure of proof is similar to that enjoined by the common-law rule in the case of perjury, and for a similar reason. Were there but one witness as to the allegation of guilty knowledge, it might with fair- ness be claimed that his testimony was counterbalanced by the official act or statement of the officer in the muster or roll : at least one other witness is therefore properly required to a conviction, beyond a reasonable doubt, of the accused. Fifth Abticle. ITS EFFECT. As this provision merely makes punishable a particular de- scription of the crime of false muster. It might well be omitted from the 854 code as embraced within the general description of Art. 14. Judging from its terms in the earlier forms,' it was originally aimed mainly at the Offence of causing retainers or officers' servants to take the place of soldiers * Samuel, 301. And see Hough, 119 ; O'Brien, 88-9. The offence la equally committed whether the false muster, (if in writing,) be made upon one of the regular " Muster- and-Fay " rolls, upon which our soldiers are paid every two months, or upon one of the so-called " muster-in " or " muster-out " rolls, especially familiar to our practice during the late war, by which State troops were formally admitted into or detached from the military service of the United States. •See Samuel, 305. • " The proof must show either actual knowledge of the falsehood, or that by ordinary care and attention to his duty the accused would have known the falsehood." Samuel, 303. ' Samuel, 305 ; Hough, 119-120 ; O'Brien, 89. ■ " The mischief intended to be prevented by the law is a false statement of the num- bers or circumstances of the forces, which is, or may be, alike detrimental to the public purse and the service ; and this mischief would be the same whether U were occasioned by negligence or Inattention, or open or concealed fraud." Hough, 119. And see Sam- uel, 305. » The original form of 1775 and 1776 was : — "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 duty as a soldier, shall be deemed guilty of having made a false muster, and shall suffer accordingly." 554 MILITAKY LAW ANI> PRKCEDEJTrS. and answer as such upon the muster. As at present worded, It Is immaterial what sort of persons are thus substituted." Tbe direction—" shall be pimlshed accordingly," means of course shall suffer the punishment prescribed by the principal (misplaced") Article— the 14th. Sixth Abticle. CONSTBTJCTION AITD EPPECT. This Article makes It an offence for an officer to accept or receive, directly or Indirectly, a pecuniary or other com- pensation in connection with, and in relation to, the making of an official muster or the execution of a muster-roU." Samuel/* in remarking, with re- gard to the corresponding Brltirti article, that " the taking of the gratuity is the act prohibited and is of itself the sole offence," adds that, if the same " be received, no matter with what view on the part of the person receiving It, or what effect it may afterwards have on the muster or on the signing of the rolls, the offence will be complete." O'Brien's comment is — "The Article is explicit and make^ no distinction whether the muster-rolls were true or false." " THE PUNISHMENT FBESCBIBED IN THE FOBEGOING ABTICLES. These articles are peculiar in being the only ones in the code which prescribe, with dismissal, the penalty of disability or disqualification for office 855 or employment under the United States. The severity of the panish- ment is traced by Samuel to the period of the reign of Henry V, when the British armies were raised and equipped " on the private contract of in^- viduals," whom it was considered necessary to compel, at the peril of the severest penalties — in some instances even of death — to the mustering or ex- hibiting upon rolls, of genuine troops, and the furnishing of the actual com- plements required." Subsequently, when, as the same author observes, the army came to consist " no longer ot private supplies but of national levies," the previous severity was relaxed, and the penalty of disqualification discon- tinued. It is to be regretted that a similar change has not been made in our own Articles. The offences which they denounce are grave, but no more so than are sundry other military crimes for which less severe penalties are provided. The peculiar appropriateness of disqualification for public employment as a punishment for false musters is not perceived ; and for reserving this punish- ment for this class of offences alone no sufficient reason is believed now to exist It would be an improvement of the code to limit the penalty directed by these Articles to dismissal alone or leave it discretionary with the court. As has been remarked in Chapter XX, the disability to hold office, &c., here prescribed, attaches as a legal consequence to the conviction and punishment » See case in G. O. 23, Mid. Mil. Dept., 1865, of an officer convicted of falsely muster- ing, on a muster-out roll, " four persons who were not soldiers." >' See ante, p. 552. " Compare Hough, 131-2. " Pages 312-313. " Page 89. In S. O. 419 of 1864, an officer In command of a recruiting rendezvous Is summarily dismissed for accepting money from a State recruiting agent, "in con- sideration of certain certified copies of muster-in rolls, to be furnished said agent; such acceptance of money being in violation of the 16th" (now 8th) "Article of war." -Samuel, 294. So, Atty. Gen. Legare, (8 Oplns., 694-5,) observes: "The ex- treme Jealousy of the law upon the subject of actual presence in camp and corps u ZZLr"J ^'J^^l ? ^ ""*"" '" <^^^"^y "•'<""' "y tl-e «"erity with which It punishes officers guilty of Imposing upon their superiors In the slightest degree in TtZTf "L t" ^rtlflcates. ... The strictness with which any attempt .? I f M " *?l™°^'.f '" *"' P'"« <" « '°11»«' <">« '»"> Js not in fact doing duty ai such," (is punished?) "is remarkable." MiLITAEY LAW AlfD PBECEDENTS. 555 of dismissal from the service, and need not be specifically adjudged in the sentence. VI. THE SEVENTH -AND EIGHTH ARTICLES. [Ofilcial returns.] " Abt. 7. Every officer commanding a regiment, am, independent troop, bat- tery, or company, or a garrison, shall, in the beginning of every month, transmit through the proper channels, to the Department of War, an exact return of the same, specifying the names of the offlcers then absent from thwr posts, with the reasons for and the time of their absence. And any officer 856 who, through neglect or design, omits to s6nd such returns, shall, on conviction thereof, be punished as a court-martial may direct, " Art. 8. Every officer who lenowingly makes a false return to the Depart- ment of War, or to any of his superior officers, authorised to call for such returns, of the state of the regiment, troop or company, or garrison under his command; or of the arms, ammunition, clothing or other stores thereuntr belonging, shall, on conviction thereof before a court-martial, be cashiered." Seventh Abticle. PURPOSE OF THE PBOVISION. The object of this Article, (which, with Art. 8, has been brought dovm from the code of 1775 without material change,) is to keep the President, through the Secretary of War, advised as to the avail- able strength of the army, by means of frequent and accurate reports of the numbers and condition of its minor component parts. The Army Regulations, Art. LXVII, specify particularly as to the time and mode of forwarding these monthly returns, their form, &c. THE OFFENCE HADE FUITISHABLE. This consists in the omission, either deliberately or through remissness, to send a return, or an " exact " re- turn, in the manner directed. If such an omission be caused by personal dis- ability, by the neglect of another person for whom the commanding officer cannot be held responsible, by an exigency of war, or by other cause beyond the offi- cer's control, he cannot properly be held amenable uttder the Article. In gen- eral, however, the mere fact that no return has been sent for a certain month or months will be ground for presuming at least neglect on the part of the officer, and devolve upon him the burden of rebutting such presumption. To sustain a charge under the Article, it must of course aw)ear that the accused, at the time of the alleged omission, W£ls exercising one of the commands specifi- cally designated. The omission contemplated— it may be noted— will subject the commander, not only to military trial, but also to criminal prosecution, and fine if convicted, under Sec. 1780, Rev. Sts. EhoHTH Abticle. 857 Its OBJECT. " The object," observes Hough," of making the returns here indicated as to the state of the comindnd, is to enable superior offlcers authorized to call for such returns to become acquainted with the strength and efficiency of regiments, &c., and therefore a false return may be attended with very serious consequences." Of the returns of arms, dc, he adds : " The object of such returns is to. check the issues and receipts of arms, &e., furnished to regiments from the magazines, &c., as well as to ascer- tain the state and condition of the equ ipments in use." ^ 1° Pages 132, 133. 556 MILITARY LAW AND PRECEDENTS. THE OFFENCE. To render an officer making a false return amenable to Justice under this Article, he must be a commanOing officer, and must exercise the command of a regiment, company, or garrison. The false return to his su- perior of a staff officer, or acting staff officer, not exercising a command, would properly be charged, not as a violation of this Article, but of the e2d, or per- haps 61st. Thus the conviction, under this Article, of an Acting Commissary of Subsistence, of making false returns to the Commissary General in the form of false abstracts of purchases was disapproved by the Secretary of War in a General Order ; " and in a further Order " the same action was taken upon a similar finding in a case of an Assistant Quartermaster, charged with a breach of this Article In rendering false accoimts current to the Chief Quartermaster of the military department. The " superior," other than the Secretary of War, " authorized to call for " the return, will generally be the department, or regimental, commander, ac- cording to circumstances ; or, in the case of ordnance stores, or clothing and "camp and garrison equippage," " the Chief of Ordnance or Quartermaster General. To constitute therefore the offence, it must be shown that the accused held at the date of the return one of the commands designated ; that the return was of one of the classes contemplated, and was made by the commander either to the Secretary of War or to a superior authorized by statute, 858 regulation, or usage to require it ; " that It was false and that the accused knew It to be so. The return Itself or a certified copy should be put In evidence. As to the character and extent of the falsity essential to be established, it is held by Samuel " that the return need not be false through- out, — that it Is sufficient if it be false in any one material particular. As to the matter of knowledge, the same author observes'" that — "an officer will always be presumed to know what from the duty of his office he is bound to know, or ought to inform himself of. So that Ignorance of the contents of the returns subscribed by an officer cannot be pleaded in excuse, for it was his business previously to inquire — as It will be in all cases where his signature is not merely formal — Into the truth of the statements made in them ; otherwise the returns might as well have been signed in blank." THE PUNISHMENT. That the term " cashiered " employed in this Article has no peculiar significance but Is equivalent to dismissed, has been noticed in Chapter XX. VII. THE NINTH, TENTH, FIFTEENTH, SIXTEENTH AND SEVEN- TEENTH articles! [Responsibility for Public Property.] "Art. 9. All puhUc stores taken from the enemy shall be secured for the service of the United States; and for neglect thereof the commanding officer shall be answerable. " Abt. 10. Every officer commanding a troop, battery, or company, is charged with the arms, accoutrements, ammunition, clothing, or other tmlitary stores " G. C. M. O. 12 of 1872. " G. C. M. O. 19 of 1872. ■• Stores " thereunto belonging " means of course belonging to, or Issued to and held Dy, the regiment, company, or garrison. That the returns contemplated In the Article are returns of tte personnel or matiriel of the command, and do not Include returns of funds, — see Digest, 22. «> See Simmons S 161 ; O'Brien, 303. " Page 320. And see Hough, 134, Digest, 4. a Pages 320-1. And see Fourteenth Artlcle-l" Knowingly." 4c. MILITAKY LAW AND PRECEDENTS. 557 belonging to his command, and is accoimtaUe to his colonel in case of their being lost, spoiled, or damaged otherwise than ly unavoidable accident, or on actual service. "Art. 15. Any offlcer who, wilfully or through neglect, suffers to be lost, spoiled, or damaged, any nUlitary stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service. " Aet. 16. Any enlisted man who sells, or wilfully or through neglect wastes the ammunition delivered out to him, shall be punished as a court-martial may direct. 859 " Aet. 17. Any soldier who sells or, through neglect, loses or spoils his horse, arms, clothing, or accoutrements, shaM be punished as a court- martial may adjudge, subject to su^h limitation as may be prescribed by the President by virtue of the power vested in him." Ninth Abticle. THE PRINCIPLE OF THE ARTICLE. This Article, of which the origi- nal in our law " is Art. 29 of 1775, is, in its first clause, but an application of the principle of the law of modern war and of nations, that enemy's property captured In war becomes the property of the government or power by whose forces it is taken, and not that of the Individuals who take It." Congress, which, by the Constitution, Is exclusively vested with power to dispose of the property of the United States, as well as to make rules concerning captures on land and water, has applied the above principle strictly to the Army by this Article. It has not only provided for the army no allowance from the proceeds of captured stores corresponding to the prize money made payable to the navy, but, by Art. 9, has made the neglect to secure such stores to the use of the United States a military offence." " Compare with it the 25th Article of the Code of James II, in Appendix. »* Decatur c. U.. S., Devereux, 110 ; U. S. v. Klein, 13 Wallace, 136 ; White ■». Red Chief, 1 Woods, 40 ; Branner v. Felkner, 1 Heiek., 232 ; Huff v. Odom, 49 Ga., 3b^ " Private persons cannot capture for their own benefit." Worthy v. Kinamon, 44 Ga., 299. And see 13 Opins. At. Gen., 105 ; G. O. 54, Hdqrs. of Army, Mexico, 1848 ; Do. 21, War Dept., 1848 ; Do. 64, 107, Id., 1862 ; Do. 160, Id., 1865. The same principle was recognized by Congress in the " Captured and Abandoned Property Aet," of March 12, 1863. See Lamar v. Browne, 92 U. S., 195. By Sec. 5313, Rev. Sts., officers and soldiers are required to turn over all captured property to the proper authority, and are made punishable by fine and imprisonment for selling or " In any way dealing in " such property. See further on this subject the prohibition of " plunder " and " pillage " in Art. 42; also Part II — The Law op Was, " Biaposition of Property." "In G. O., Hdqrs., Totoway, October 31, 1780, is published the case of Col. Eliaha Sheldon, 2d Light Dragoons, tried' (and acquitted) for-^" Defrauding the officers and soldiers of plunder taken in action, and converting the avails to his own use." In G. O. 27 of 1863, two officers are summarily dismissed for appropriating property taken from the enemy. The dases in which Congress has authorized captured property or its proceeds to be appropriated to the use of the troops have been most rare. Art. 12 of November, 1775, appears to recognize a right, on the part of officers and soldiers in good standing, to "share" in "plunder taken from the enemy," Upon the capture of Stoney Point, in July, 1779, it was Resolved, (3 Jour. Cong., 329,) " that Congress approve the promises of reward made by Brig. Gen. Wayne, with the concurrence of the commander-in-chief, to the troops under his command;" and "that the value of the military stores taken be ascertained and divided among the gallant troops by whom It (Stoney Point) was reduced, in such manner and proportion as the commander-in-chief shall prescribe. In a peculiar order Issued during the late war— G. O. 216, Dept. of the Mo., 1864— m consideration of the services of certain militia, in dispersing a band of " bushwackers. It is directed that, " the horse ridden by the leader, and the watches and arms taken will be given to the several officers of the command to be retained as honorable trophies, ■ and that the money captured be distributed to the wounded and the families of those killed. 558 MIUTAKy LAW AND PBECEDENTS. 860 CONSTaUCTIOK — ^"The commanding officer." In the Articles of 1775 the responsibility for a non-obServance of the like protislon was imposed upon "the commander-in-chief." The term "commanding officer," now employed, is regarded as meaning the officer in command of the aeparate and distinct organi^tion in which the capture is made— as a "separate brigade," division, or army, or a regiment or detachment when operating sepa- rately." "Answerable." By this term is understood— responsible and liable to be called to account, and, in a proper case, subject to military trial and punishment. Tenth Abticle. CONSTBtrCTION AND EFFECT. This provision appeared first in our law, and in substantially the same form, in Art. 5 of Sec. XII of the code of 1776. The obligation which it devolves upon company commanders Is one of the fundamental principles of our military system, where the company is the unit of organization. The details of the proper performance of this duty are indicated in the Army Regulations." 861 The Article is directory only. It has, however, as its penal com- plement, Art. 15, under which an officer who fails wilfully or through neglect to properly care for the public stores in his charge may be tried and punished. And any Improper disposition of such stores otherwise than as specified in that Article would be chargeable as an offence under Art. 60 or 62. Moreover, for a failure duly to account as contemplated in the present Article, the officer would be subject to a stoppage of his pay till the pecuniary value of the stores not accounted for was made good." The declaration that the officer is " accountable to his colonel " is deemed to Intend that it is devolved upon colonels of regiments to enforce the obliga- tion enjoined In the Article, by causing the proper stoppages to be made, (or reporting the facts to the War Department for- such or other action,) or by preferring charges In cases of deiellctlon on the part of their cdmpany com- manders of such gravity as to call for trial and punishment. Samuel," In construing the concluding clause of the Article, observes that^-r "by 'unavoidable' Is intended what could not have been prevented by com- mon and ordinary prudence, and not what might have been avoided by possible or extraordinary exertions." Fifteenth; Abticle. THE OBIGINAX ENACTMENT. The original Article— No. 1 of Sec. XII of 1776, and No. 36 of 1806 — of which the present provision was a part, de- nounced also the offences of unauthorized selling, embezzlement and misappli- cation of military stores. But, as to this portion, the Article was practically superseded by the subsequent Act, "to prevent and punish frauds upon the "G. O. 64, of 1862, requires that the captured property of the sort indicated in the Article, " be turned over to the chiefs of the staff departments, to which said prop- erty would appertain, on duty with the troops," to be "accounted for by them as captured property and used for the public service," unless otherwise ordered in special cases. " See pars. 778-787. Prior to the enactment of July 15, 1870, a special allowance (similar to that made in the British service— see Samuel, 538,) of $10 per month was made to company commanders " tor responsibility of arms and clothing " . "J^^'^ ''"'^ <^°""ertion, the provision of the Act of May 18, 1826, as incorporated in Sec. 1304, Rev. Sta. "Page 538. MILITARY LAW AND PEEOEDENTS. 559 Government of the United States," of March 2, 1863, c. 67, which is now, by the Revision of 1874, incorporated with the code as Article 60. CONSTBirCTION — " Through neglect." In view of the fact that so se- vere a penalty as dismissal Is made mandatory in all cases by this 862 Article, it would seem that the "neglect" here contemplated was a special neglect, and of a positive and gross character, and not merely such a neglect, to the prejudice of order or discipline, as is indicated in the general — 62d— Article. Such is indeed the conclusion, in substance, of Samuel, in con- struing the, corresponding British Article." Thus while any neglect, resulting in a loss, &c., of stores, would, strictly, be cognizable under Art. 15, it ivould ordinarily be preferable not to resort to it for the punishment of slight or negative neglects of duty, but to charge thereunder only such neglects as In their gravity were assimilated to the toilful act also constituted an offence thereby." " Suffers to be lost, &c." The wilful or neglectful sufferance specified by the Article may consist in a deliberate violation or positive disregard of some specific injunction of law, regulations, or orders; or It may be evidenced by such circumstances as a reckless or unwarranted personal use of the prop- erty; causing or allowing it to remain exposed to the weather, insecurely housed or not guarded; permitting it to be consumed, wasted or injured by other persons ; loaning it to an irresponsible person by whom it is damaged," &c. " Shall make .good the loss or damage." This provision is regarded as imposing a general pecuniary liability which may be enforced independently of the sentence." Thus, while it would not be irregular for the court, in con- nection with dismissal, to impose a forfeiture of an amount of pay sufficient to reimburse the United States for the loss Involved, and specified to be forfeited for that purpose, it would be legal and regular, in the absence of any such for- feiture in the sentence, to stop the proper sum against the pay of the officer till fully satisfied. Strictly, the most correct form of a judgment, under this Article, would, it Is believed, be — to add, in the sentence, to the imposition of the dismissal, (with other penalty if awarded,) as the punishment, a 863 statement that the court estimates the value of the stores lost, &c., to be a certain amount specified." The stoppage when ordered would properly concur with this estimate. Sixteenth Abticle. CONSTRTTCTIOIT AND EFFECT. The original" of this Article, in the codes of 1776 and 1806, made offenders triable only by a regimental court. The present form is a more effectual provision for the punishment of the soldier, whether for selling his ammunition, or for any neglect, grave or slight, result- ing In Its waste ; a general court being resorted to where the offence, or loss entailed, is a serious one, and an inferior court where the dereliction is of less importance. The "waste" contemplated by the Article is evidently such as may consist in not taking proper care of the ammunition issued and thus allowing It to be "Pages 516-517. = See Hough,'259 ; also case of violation of this Article in G. C. M. O. 85 of 1882. •" See Samuel, 516 ; O'Brien, 131. » As in the sentence adjudged upon a conviction under this Article, published in G. O. 341 of 1863 See remarks in regard to a similar provision of Art. 17, post. "•The true original Is Art. 42 of the code of James II. where the offences denounced are made punishable with death. And compare Art. 80 of Gustavus Adolphua. 560 MILITABY LAW AND PRECEDENTS. lost or damaged, in recklessly expending It in firings, giving It away, &c. The "casting away" of ammunition, made punishable by Art 42, is a distinct offence. Seventeenth Abticlb." OBIGIN. The origin of this Article In our law— Art. 3 of Sec. XII of 1776_which was taken directly from a provision of the British Articles In force prior to the Eevoluttonary War," may be said to be derived from the "Assize of Arms, as settled in the reign of Henry II, A. D. 1181," by which it was declared that no one, required or entitled to be furnished with arms or armor, " could either sell, pawn, lend, or part with thent out of his custody." " Subsequent provisions to a similar effect are to be found in the Code of Gustavus Adolphus and in the Articles of Charles I and James II. The recent amendment of this Article by the Act of July 27, 1892, has 864 swept away all the diflSculties previously encountered in the interpre- tation of that part of it which related to the punishment of the offender and the other legal consequences of his act. CONSTBTJCTION. — "Sells, or through neglect loses or spoils." These words of description define and restrict the classes of offences cognizable under this Article. An unauthorized conversion or application, other than selling or neglectful losing or spoiling. Is not chargeable here, but must be laid under some other provision of the code, as Art. 60 or 62. Thus it has been held that pawning, which is not strictly selling, should properly be charged under the Sixty-second Article ; '" and so of the offence of the gambling away of his clothing by a soldier." The neglect specified may be of any degree— from wilful positive neglect to the negligence involved in an omission to take due care of the thing, or a mere carelessness in the use of it." The spoiling indicated is deemed to consist in the doing to the thing such Injury or damage as to render it wholly or in any material part unserviceable, or unfit for the use for which it was designed." A specification under a charge of a violation of this Article should set forth one of the specific offences enumerated and not some other similar act of offence or offence expressed in general terms. Thus a specification which alleges that the accused did unlawfully " dispose of " his horse, &c., 865 is defective and InsufBcient. And so is a specification which avers the commission of two or more offences in the alternative; — as that the »• With this Article note the prohibition repeated in Sees. 1242 and 3748, Hev. Sts. " See Appendix. "Tytler, 373-4. *> G. C. M. O. 17, Dept. of the Mo., 1874. " G. C. M. O. 41, Dept. of Texas, 1873. ♦1 In a case in G. C. M. O. 120, Dept. of Cal., 1882, Gen. Schofield observes as follows : — " In cases of this class it should be clearly understood that where clothing duly issued to a soldier disappears without apparent cause, the soldier, entrusted as he Is with the safe keeping and proper care of the property, is in general to be presumed to be chargeable with neglect in the care or Iceeping of the same, and will in general properly be held liable for sucli neglect by « Court-Martial under the 17th Article of War, unless by reasonably satisfactory evidence he shall duly account for the loss and acquit himself of fault. If the soldier at the time of the loss Is absent without leave, or under the influence of liquor, or otherwise improperly conducting himself, the presumption against him of neglect will of course be stronger than where he is not thus culpable." « See case in 6. C. M. 0. 26, Dept. of Colorado, 1893, of a charge of " spoiling hla horse," by causing it, through neglect in riding, to breali its leg, thus necessitating Its being shot. MtLITABY LAW AND PKECEDENTS. 561 accused "did^sell, lose or spoil through neglect," or "did sell, lose through neglect, or otherwise dispose of."" « His horse, arms, clothlhg," &c. Clothing Issued and charged to a soldier becomes his property, but in the qualified sense that his use of it in the service as, by Oie requirements of discipUne, restricted to legitimate military purposes In the horse, arms, and most of the accoutrements, however, which are furnished him, he has no property whatever, but the same are supplied merely for his use as a soldier, a use for which he is responsible to the United ' States as the owner It is quite clear therefore, and is agreed by the authorities," that the term Ms," employed as it Is indifferently in regard to all the things specified, IS not here intended to convey an idea of absolute property or owner- ship,^but rather one, as between him and the United States, of possession only. All such things indeed, whatever their tenure, when issued to the soldier, are issued with a view to use in the service, and with the understanding that they shall not otherwise be disp'osed of, and shall be reasonably cared for and safely kept. The Article, in making penal such a disposition, (by selling,) and an absence of such care, holds the party to the same accountability with regard to clothing as with regard to the other objects mentioned. Thus, as apposite to the description "his," it is not necessary to prove anything more than that the thing, animal, &c., was duly issued to the soldier as a part of his military equipment. "Accoutrements." This term refers to the minor articles of a 866 soldier's outfit or horse-furniture, such as the belts, cartridge box, saddle, bridle, &c. Where it is doubtful whether an implement or Instrument, required to be carried or used by the soldier, and which is not an arm, is an accoutrement, a spoiling, &c., of the same should properly be charged, not under this,- but under the 62d Article. Thus the breaking and rendering unserviceable of his bugle, by a bugler, has been properly so charged." "Shall be punished as a court-martial may adjudge, subject to such limitation as may be prescribed by the President by virtue of the power vested in him." By these concluding words, (added in the amendment of 1892,) the Article has evidently in view the limitation as to maximum punish- ments authorized, by the Act of September 27, 1890, to be prescribed by the President where, as here, the sentence is discretionary with the court. The words after "adjudge" are indeed surplusage, since the Act of 1890 would of course have effect independently of such proviso. In regard to the punishment, it may be remarked that, in a case of the selling of property of the United States issued to the soldier, as a horse or musket, — an act which would constitute embezzlement in law, — confinement in a penitentiary would, in view of the provisions of Art. 97, be a legal punishment If imposable in a like case under the existing local law. "G. C. M. O. 109 of 1886. This form Is allowed In the British practice. See Story, 67. <* Q. O. 35, Dept. of the East, 1869 ; Do. 31, Dept. of the South, 1877 ; G. C. M. O. 1, Id., 1882 ; Do. 15, Dept. of Texas. 1880 ; Do. 84, Div. of Pacific and Dept. of Cal., 1881 ; Do. 5, Dept. of the Columbia, 1883 ; Do. 42, Dlv. Atlantic, 1888 ; Digkst, 23, 34. And compare U. S. -0. Brown, 1 Mason, 151. In G. O. 22, Dept. of the South, 1873, it was held not a violation of this Article that the accused had sold a coat, not issued to himself, but purchased by him from a discharged soldier. "As to a similar use of the same word in Art. 42, see that Article, pott, ♦•G. C. M. O. 36 of 1876. 440593 0-42-36 562 MILITARY LAW AND PSECEDENTS. VIII. THE ELEVENTH, TWELFTH AND THIRTEENTH ARTICLES. [Furloughs— Certificates of Absence^False Certificates.] " Abt. 11. Every officer commandinp a regiment or an independent troop, hat- tery, or company, not in the field, may, when actually quartered with such com- mand, grant furloughs to the enlisted men, in such numbers and for such time as he shall deem consistent icith the good of the service. Every officer com- manding a regiment, or an independent troop, battery, or company in the field, may grant furloughs not exceeding thirty days at one time, to five per centum of the enlisted men, for good conduct in the line of duty, but subject to the approval of the commander of the forces of which said enlisted men form 867 o part. Every company officer of a regiment, commanding any troop, battery, or company not im the field or commanding in any garrison, fort, post, or barrack, may, in the absence of. his field officer, grant furloughs to the enlisted men, for a time not exceeding twenty days in six months, and not to more than two persons to be absent at the same time. "Aet. 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 reasons of their absence. And the commanding officer of every troop, battery, or copipany shall give like certificates, stating how long absent non-bommissioned officers and private soldiers have been absent and the reasons of their absence. Such reasons and time of absence shall be inserted in the muster-rolls opposite the names of the respective absent officers and soldiers, and the certificates, to- gether with the muster-rolls, shall be transmitted by the mustering officer to the Department of war, as speedily as the distance of the place and muster will admit. " Abt. 13. Every officer icho signs a false certificate, relating to the absence or pay of an officer or soldier, shall be dismissed from the service." Eleventh Abticle. ITS EFFECT. This Article, wl^lch Is a consolidation of the original pro- vision derived from Art. 56 of 1775, with s. 32 of the Act of March 3, 1863, does not call for special construction. It applies to formal written leaves of absence for soldiers," in contradistinction to the informal passes which are given in all commands for a few hours or brief periods. The authority conferred of granting furloughs properly Includes the authority to grant extensions at the same, which Indeed are practically new furloughs. FOBM AND OPERATION OF FTTBLOtTGH. The subject of " Furloughs of Soldiers " is quite fully treated In the Army Regulation, Art. XVll, 868 where the form of a furlough is indicated." At the end of the form It is declared that the soldier shall rejoin his regiment, &c., at the completlun of the authorized period, " or be considered a deserter." This is to be regarded, however, as meaning, not that he will thus necessarily become or be treated ns a deserter, but that he will be presumed to be such in the absence of a satisfac- tory explanation of his failure or delay to return at the proper date, the onus " The subject, it may be remarked, of leaves o( absence to offlcere is not embraced In the Code, but U regulated by other statutes, and by regulations and orders. See Sec. 1265, Rev. Sts. ; Act of May 8, 1874. i: 154; .4ct of July 29, 1876, c. 2.39: Army Regs., Art. IX ; G. O. 38, 82, of 1890 ; Do. 55 of 1891. " Par. 108. See the early form of furlough prescribed by Congress in June. 1781. 8 Jour., 633. MILITAEY LAW AHD PRECEDENTS. 563 of promptly making such explanation aevolvlng upon himself. The status of a soldier on furlough is in most respects the opposite of that of a soldier on duty. While subject to be recalled before his leave has expired if, In view of an exigency, his services are required, and liable to be treated as a deserter if he takes advantage of the occasion to abandon the army, he is otherwise, in his legal relations, practically a civilian; the miUtary command and jurisdiction being suspended in his case." TwjM'TH Abticlx. ITS EPrECT. This provision, scarcely modified since 1775, Is, in prescrib- ing as to the form of certifying the absences of officers and soldiers on the muster-rolls, &c., directory merely, and not penal. It is Indeed rather intro- ductory to the Article which follows, by which the signing of false certificates (as to absence, &c.,) is made a specific military offence. Thibteenth Article. EFFECT AND CONSTK.TJCTION. This Article which, originally, (in Art. 58 of 1775,) referred only to certificates of absence, was made, in the code of 1806, to include certificates of pay also." In our present practice, it applies to the certificate appended to the Muster-and-Pay Roll, which covers remarks in regard to absence, pay, and other matters. It will be observed that it Is distinguished from Arts. 5 and 14, relating to false muster, in that it does not require, to constitute the offence, that the officer shall knowingly sign 869 the false certificate, but only that the certificate shall be false in fact. The Article evidently views It as a duty of a commanding officer to be informed, (especially upon occasions of muster,) as to the presence or absence of, and the payment rendered or due to, the officers and men under his imme- diate command, and contemplates that, in signing the certificates, he will. If he has done his duty in this regard, necessarily have personal knowledge of the facts to which he subscribes. It will therefore be no sufficient defence td a charge under this Article, that the accused believed the certificate signed by hfm to be true, if it was in fact false. Upon this point it is observed by Samuel," that the Article proceeds "upon the presumption that the party certifying is bound to Inform himself fully of all that he Is in duty called upon to certify; and if he be negligent In informing himself, or take anything on trust, he cannot find any lawful excuse in his ignorance or misplaced confidence, being both in opposition to a plain and manifest duty." The mere signing of an officer's pay-roll or voucher before the day on which the pay becomes due has been held not to constitute a violation of this Article; " the certificate signed not being a " false" one In the sense in which the term is here employed : further, the Article is regarded as contemplating false entries or statements made in regard to third persons, such as the soldiers and sub- ordinates of the command of the officer signing, and not as embracing such statements in regard to himself. For the latter reason, the offence of fraudu- lently duplicating his personal pay-rolls, by an officer, is, in the opinion of the "See Chapter VIII— " Jurisdiction during absence on leave," &c. ; also post under " « Ararp*^it™::''(a.a to Arts. 12 and 14., see the remarks of Atty. Oen. Legar.. in 3 Optns., 694-5. " Page 298. And see O'Brien, 302. " DIGEST, 23 ; G, C. M. O. 28 of 1872. 564 MILITABT LAW AND PRECEDENTS. author, not strictly a violation of this Article and therefore not properly chargeable under it." IX. THE EIGHTEENTH ARTICLE. [Taxing, or being Interested In, the Sale of Provisions, &c.] •' Abt. 18.— Any offlcer commanding in any garrison, prt, or iarracks 870 of the United States who, for his private advantage, fays any duty or imposition upon, or is interested m, the sale of any victuals, liqw)rs, or other necessaries of life, brought into such garrison, fort, or barracks, for the use of the soldiers, shall be dismissed from the service." ITS OBJECT AND EFFECT. This provision, dating from Art. 66 of ITTS," Is the only portion remaining in force of the three Articles of the code of 1806 relating to the business of sutlers— bl class of camp followers dispensed with at the end of the late war." Its main object evidently is,— on the one hand to prevent officers from profiting themselves, to the oppression of venders of provisions and to the injury of the soldiers for whom the same are mainly intended ; and, on the other hand, to prohibit combinations between officers and venders, by which undue facilities are furnished to the latter, to the exclusion of other parties and to the probnble detriment and defrauding of the soldier. In Its spirit, the Article may be regarded as declaring that either relation, however slight be the interest or profit, is wholly incompatible with the character and province of an officer of the army, especially when commanding troops. As to the interest referred to — this, as is noticed by Samuel," need not be a direct interest such as that attaching to a partnership, or part ownership of the articles introduced for sale, but may be one of an indirect or con- tingent character, as for Instance an Interest arising from an agreement or mutual understanding between the officer and the owner of the supplies that the former shall receive a percentage on the sales, or a commission on all profits above a certain sum, or some present of money or goods In return for his sanction of the speculation or promotion of the business. CASES UNDER THE ASTICIiE. Instances of trials for violations of this Article have been of rare occurrence. In one General Order it has been held that It was no defence to a charge, against an officer, of having exacted a sum of money from a cltlKen as a consideration for a license to sell 871 liquors at the station, that before the trial he had returned a portion of the sum extorted and given his promissory note for the balance." Sutlers in our law were done away with by the Act of July 28, 1866, and were succeeded by Post Traders,' a class of which, in turn, the gradual dis- continuance has been provided for by an Act of January 28, 1893. Meanwhile Canteens had been established at military posts," and these have more lately M It is so charged, indeed, in a recent case In G. C. M. O. 20 of 1885, where, however, the court found not guilty of the charge but guilty of " conduct to the prejudice of good order and military discipline." And see another Instance In G. C. M. O 52 of 1887. " With this Article and the corresponding Art. 4 of Sec. Till of 1776, see the Reso- lution of Congress of June 17, 1776, in pari materia. 1 Jour. Cong., 377. « See pott. " Pages 445-6. And see O'Brien, 113. •> G. O. 19, Dept. of So, Ca., 1866. See a case in G. O. 7, Dept. of West Va., 1864, where an officer was convicted of " Sutlering," In establishing a sutler's shop In hia battery, and realizing profits from the same " for his own private advantage." » See the legislation in regard to Post Traders, as set forth in Digbst, 598-9. " G. O. 10 of 1889 ; Army Regs., Art. XXXlX. MILITAKY LAW AND PRECEDENTS. 565 be^ superseded by tte Post Exchange." A commanding officer who should become interested In the sale of "victuals." &c., Intended for the t7ade of me post exchange, would probably be amenable to a charge under this Article X. THE NINETEENTH, TWENTIETH, AND TWENTY-FIRST ABTICLES. [Offences against Superiors.] "AiT. 19. Any offlcer icho uses contemptuous or disrespectful words aaainst tne Pres^ent, tne Yi^e-President, the Congress of the Iniled Ztes or the aZtZTTn^^y '"'''''''' "' ""'' "^ *''« ^""^-^ «*«*- - «./."'. L I quartered snail 6c dismissed from the service, or otherwise punished, as a a court-marttal may direct. "AST. 20. Any offlcer or soldier who behaves himself with disrespect toward Ms commanding offlcer shall he punished as a court-martial may direct Abt. 21. Any offlcer or soldier who, on any pretence whatsoever, strikes his auperwr officer, or draws or lifts up any weapon, or offers any violence against hwi, being m the execution of his offlce, or disobeys any lawful command of Ms superior offlcer, shall suffer death, or such other punishment as a court- martial may direct." Nineteenth Abticle. 872 EABLIEB FOBMS. This Article first appears in the code of 1776, where it was provided that an officer or soldier who should " presume to use traitorous or disrespectful words against the authority of the United States in Congress assembled," (the then Government,) "or the Legislature of any of the United States in which he may be quartered "—should be punished in the same manner as prescribed in the present form, except that cashiering was made mandatory in the case of an offlcer." This Article was derived from the British code where the offence consisted In the use of " traitorous or disrespect- ful words against the Sacred Person of his Majesty or any of the Royal Family." " In the American Articles of 1806, the word contemptuous was sub- stituted for " traitorous," and the provision in other respects assumed substan- tially the form in which it now appears. PBACTICE TJNDEB THE ABTICLE. The acts In violation of this Article which have formed the subject of military trials in the United States have been almost exclusively of a political character. The great majority of the eases were those of denunciatory language used In regard to the President or his administration during the late war of the rebellion." No instance has been found of a trial upon a charge of disrespectful words used against Congress "G. O. 11 of 1892. And see the recent G. O. 46 of July 25, 1895, publishing "Post Eschange Regulations." " Compare the early civil statute, not now In force, of July 14, 1798, ». 2, making punishable by fine and Imprisonment the offence of " writing, printing, uttering, or publishing, &e., any false, scandalous, or malicious matter against the Government of the United States, or either House of Congress, or the President, with intent to de- fame or to bring Into contempt or disrepute," &c. "Art I, Sec. 2, of the British Articles in force at the beginning of our Revolutionary War. ■■ See cases In G. 0. 377 of 1863 ; Do. 171, Army of the Potomac, 1862 ; Do. 23, Id., 1863; Do. 52, Middle Dept., 1863, Do. 119, Dept. of the Ohio, 1863; Do. 33, Dept. of the Gulf, 1863, Do. 68, Dept. of Washington, 1864; Do. 86, Northern Dept, 1864; Do. 1, Id., 1866, Do. 29, Dept of No. Ca., 1865. 566 MILITAKY LAW AND PRECEDENTS. alone or the Vice-President alone, although in scrnie examples the language com- plained of has included Congress with the President." Only one case 873 is known of an arraignment upon a charge of speaking disrespectfully of a Governor of a State," (and In that the accused was acquitted,) and none of an allied violation of the Article in assailing a State legislature. NATTJBE AND PBOOF OF THE OFFENCE. The "words," (which need not, of course, be addressed to the President, &c., or uttered in his presence,) may be either spoken, or written — as in a letter, or published — as In a news- paper. They may consist in abusive epithets, denunciatory or contumelious expressions. Intemperate or malevolent comments upon official acts, &c. Al- though the mere fact that no disrespect was intended will not constitute a de- fence to a charge under the Article, yet in a case where the words are not in themselves necessarily disrespectful, the animus of the accused in using them will be a circumstance material to the Inquiry whether any offence, or what degree of offence, has been committed. Thus an adverse criticism of the Execu- tive expressed in emphatic language in the heat of a political discussion, but not apparently intended to be personally disrespectful, should not in general be made the occasion of a charge under this Article.* In a case of spoken words, It will also be a material question whether they were uttered in a private conversation or In the presence of officers or enlisted men. Opinions for which. If privately indulged in, an officer or soldier would not be answerable, may con- stitute, if publicly declared, the offence under consideration. And any dis- respect will be aggravated by being manifested before Inferiors in rank In the service." To constitute the offence of speaking, &c., disrespectfully of the President, the official referred to must be the acting President at the time. Maligning a de- ceased President would not be within this Article. Thus the public exulting over or justifying of the assassination of President Lincoln — an offence which was in several Instances, toward the end of the late rebellion, 874 made the subject of trial by court-martial," was properly charged as a violation of Art. 99. It would not constitute a defence to a charge under this Article, to show that the person was spoken of, &c., not in his official but in his Individual capacity ; or to show that what was said or written of him was true. If the words are contemptuous or disrespectful in se, the offence is complete. Twentieth Abticlb. CONSTBXrCTION — " Who behaves himself." The original Article of 1775 made punishable a behaving with disrespect toward a commander, and a speaking of false and Injurious words In regard to him. Because specific ref- « G. O. 23, Army of the Potomac, 1863 ; Do. 119, Dept. ot the Ohio, 1863. In 1890 General Castex of the French army was tried by court-martial for attacking M. de Freych^t, the Minister of War. In a speech to the Cavalry at Meaux, and sentenced to be placed on half pay. p."?;,^',^;"' ®®J. *" ^^^l ^" ^^^ proceedings of Congress of April 3, 1779, It was Reaolved that any disrespectful or Indecent behavior by any officer to the civil authoritv of^any State in the UMon would be " discountenanced and dlscourag^" 3 Jour Cong. ""To seek Indeed tor ground of ofTence in such discussions would ordinarily be Si 26 U w^md ord.; H?"i: "'^^ ^"-"""•e^t." Judge Advocate General Holt private' conve"atTr.'' "'"'"''*'^' "^ ^"" "">'* '"«J"'«"oria. to look for the same In a - Li ct^' "g 1^88'"J^' ""fr"' '*•*' = '"'■ =^^- °«Pt- »' No. Ca.. 1865. Nortt^ rpt.:i866 ' ^'"^ "' ^''- ''«== ^- "=• °«P*- «" *"« «»•. "«= = ^- 50, HILTTAKY I4A.W AND PRECEDENTS. 567 erence to the use of words is omitted from the present form, It is not to be inferred that this mode of showing disrespect is no longer recognized. On the contrary,, the term retaiaed — " wfio behaves himself with disrespect," &c., is sufficiently general aad comprehenalTe to include all kinds of personal disre- spect, whether by acta or words. As It is said of the Article in a General Order : " — " It contains no QualiScatlons as to manner, time, or place, and Is understood to cover," not merely " Ml actions," but also " language spoken or written." This construction i» conflrmcid in practice : indeed prosecutions under this. Article are more frequently based upon the use of unbecoming language than upon any other form of misconduct. " With disrespect." As expressed in the Order last cited, the disrespectful behaviour contemplated is such as " detracts from the reject due to the authority and person of the commanding officer." Disrespect by word» may be conveyed by opprobrious epithets or other contumelious or denunciatory language applied to, or in regard to, the commander ;'° by an open declara- 875 tion of an intention not to obey his orders ; by making unwarranted imputations against him or attributing to him improper motives; by misrepresenting or aspersing blm in a communication addressed to his superior or other officer in authority, ot in a circular, newspaper, or other form of publication," &c. Disre^iect toward a commander by acts may be exhibited in a variety of modes — as by neglecting the customary salute," by a marked disdain, indifference, insolence. Impertinence, undue famlliartiy, or other rude- ness in his presence, by a systematic or habitual disregard of, or delay to comply with, his orders or directions or by issuing counter orders, by an as- sault upon him not amounting to breach of the 21st Article," &c. The words or facts constituting the alleged disrespect, (and which should be specifically set forth in the charge,) need not necessarily consist in acts or language directed at the commander in his offlcial or military character, but may be applied to him personally as well." As Indicated under Art. 19, U is no defence that the superior was assailed in his private or civil capacity ; the law of mlUtary discipline cannot safely recognize such distinctions. It is also not essential that the disrespect be intentional: a failure to show a proper respect to the commander, through ignorance, carelessness, bad man- ners, or no manners, may, equally with a deliberate act, constitute an offence under the Article. Where, however, it Is doubtful whether an act, or language, not necessarily dlsre^ectful in se, may properly be treated as amounting to disrespect, the animus of the party becomeF a material Inquiry. Where an Impropriety of manner or expression, after being animadverted upon by the commander, has been repeated, an intention to be disrespectful will be the 876 more readily inferred. An intentional disrespect Is of course much more aggravated than one which is unintentional: a disrespect is also aggra- Zf ""■ ^tTa C TTix^t\sS9, the offence consisted in the sending back by the '»ln a case In G. C. M. O 41 of J»»^^ , j „„j insubordinate language, to hU rrndtU^cru^onX Utt/Lt-trto M. an order to leave a dHnUing saloon S^h^atinl^ons^^ref^^r^r^^^^^^ see cases of violation of this Article in G. C. M. O. is 01 10,0 , v.. Platte, 1870. "Hough, (P.) 125. ::^:„gi vri^«%-HerB8^'c^^^^^^^ --r^Tmr- ""'"' " """" '" 807.) and Samuel, (p. 246;) G. O. 44, Dept. of Dakota. 1872. "See O'Brien, 08. 568 MILITABY LAW AND PBECEDENTS. vated where It Is publicly committed; and so of disrespectful language con- veying false imputations. It is no defence, however, to a charge for using such language, that the same only stated facts^ or that what was said was no more than deserved by the superior. If an officer or soldier has been aggrieved by his commander, he should, instead of inveighing against him, properly seek re- dress under the 29th or 30th Article of war, or otherwise through regular mili- tary channels." Further it is no defence, or even palliation, that the person guilty of the disrespect was an officer of high rank and long service. Indeed this circumstance is viewed by Hough " as a " strong aggravation, inasmuch as the effect of such conduct upon others must produce an influence pemicious in proportion to the deference and respect paid to the character of the Indi- vidual who ofEends." " The punishment being made discretionary by the Article will be measured by the nature and circumstances of the disrespect In the particular case; a severer penalty being called for where the disrespectful behaviour was unpro- voked, undeserved, false, deliberate, violent, or public — as in the presence of officers or soldiers, than where It was the reverse." " Toward." As already indicated. It is not essential to the offence that the language should be addressed to the commander fn person, or that the words or acts should be said or done In his presence. " Toward " thus includes not only to, but at, against, or in reference to. Disrespectful language 877 used In regard to a commander, in his absence, has been espressly held In Orders," to be within the Article. But where the language was em- ployed in the course of a private conversation, it will in general be Inquisitorial, Inexpedient, and quite unworthy the Government, to make It the occasion of a charge, unless the disrespect was of an extreme character, and manifested under such circumstances as to set a pernicious example to Inferiors or other- wise gravely prejudice decency or discipline." " His commanding officer." The Article, in its present form, Is not, as in the early codes, confined to cases of disrespect shown to the General of the army or other chief commander, but includes offences of this class committed against all commanding officers of whatever degree, whether of a post, company, regiment, brigade, division, department, or other command. But comprehensive as is the term " his commanding officer," it can apply only to an officer who is the actual commander of the accused at the time of the offence. The command- ing officer of an officer or soldier, in the sense of the Article, is properly the superior who, in the exercise of his command, is authorized to require obedience to hxs orders from such officer or soldier.- This Is not necessarily an officer of the line but may be a staff officer-as an engineer officer in command of an which has ZTrl^ to tte cTar» b^?„e7t f ^^'^^^^^ »•> Practice; the matter parties. SeV Col. DebbeiggVease in Samuel 24rr'°*i\" "^"""^ ""^ "^^^^"^ t"' of SurgeoE Dal.ell and Capt. Brow„ In Tme„t^'.r'*«?<, **•=-"'*"'' ^^^-^SO ; cases ter XX. p. 416, and notes ' *'^' ^^* ^^'' ^ '^'■'™> «« i »>«-> «»««. Chap- in^'th^; Ut;Ttbet°orrs. T kif^ptltf^T^'l" ""^ """'' ^""- '" *"'> -- Trader's store. disrespectful language was used in pubUc at the "See G. O. 29 of 1844. "Q. C. M. O. 37, Dept. of Texas, 1884. MILITAKY LAW AND PEECEDKNTS. 569 engineer station, or an ordnance officer In command at an arsenal. Or it may be a medical officer in command at a hospital." The offence of showing dis- respect to an officer, who, while the superior, was not the commander of the offender, would not be cognizable under this Article, but should be 878 charged under some other, as the 62d." And so of the offence of using disrespectful language toward the usual commander of the accused — as the commander of his company or regiment— committed by the accused when on detached service or duty under a quite: different, though temporary com- manding officer; such offence too should be charged under an .article other than the Twentieth. TWENTY-FIBST AkTICLE. OBIOIN. This important Article has come down to the present time from Art. 1 of Sec. Ill of Charles I, and Art. 15 of James 11." Since its first appear- ance in our law as Art. 7 of 1775, it has undergone but slight modifications: these, so far as material, will be noticed as we proceed. CONSTBirCTION — " On any pretence whatsoever." These words, while emphasizing the description of the grave offences made punishable by this Article, do not add to its legal effect, or preclude the possibility of a defence to a charge under the same. Like the same words which appeared in the original of Art 22, but were omitted in the form of 1806 and have since been disused, they might also be omitted from the present Article without modifying its purport or operation. " Strikes." A battery is evidently here intended. The person of the officer must be reached by the blow: to strike at him without touching him is not the offence indicated, but a mere assault only." If indeed there is an assault offered, (with a weapon,) it is punishable under the next description. Upon the word " strikes " Hough " observes : " The act of striking Is sufficient ; it does not signify whether it be with the fist, or with a stick, or any other weapon, or whether it be a gentle or a hard blow ; the mere striking constitutes the crime." The striking must however be intentional ; an accidental blow or contact would not constitute the offence contemplated. 879 It is not unfrequently said by writers and In Orders that the striking of a military superior by an inferior cannot be justiiied under any cir- cumstances or by any provocation -whatever. The person of an officer should indeed be sacred to the soldier; in an extreme case, however, a soldier may be warranted in using force against his officer, as when acting in self-defence against Illegal violence, or in quelling a disorder under Art. 24; and in any case the fact of a resort to undue force by a superior against an inferior will be admissible in evidence as going to palliate the offence of the latter in em- ploying force in return." « " An Assistant Stirgeon in cbarge of a post hospital Is the commanding officer of all members of the hospital corps therein, as, by virtue of that position, he is entitled to command obedience and respectful behaviour on their flart." G. C. M. O. 4, Dept. of Texas, 1891. A subordinate at a hospital may indeed have two Commanding officers, the medical officer In Immediate charge of the hospital and the post commander. "In G O. 53, Dept. of Dakota, 1871, a conviction is disapproved because it was neither aHeged nor shown that the officer offended against "was the commanding officer of the prisoner at the time of the commission of the offence." And see O'Btlen, 68. 69. ,_ X ^ . . * M See Appendix. The several provisions of the Article are also to be traced in Arts. 18 19 21 22 24, 25, 26, 29 and 30, of the Code of Gustarus .Adolphus. « See the definition of Assault-and Battery under the " Fifty-Bight Article." post. "Page 84: Id., (P.) 79. ■• See G. C. M. O. 45, Dept. of Dakota, 1880. 570 MILITARY LAW AND PRECEDENTS. " Draws or lifts up any weapon against." Here, however, are Intended simple assaults; the offence consisting either in a mere threatening of violence without anything further being proposed, or in an attempt to do violence which is not effectuated. The weapon chiefly had in view by the word " draw " is no doubt the sword ; the term however might apply to a bayonet in a sheath, or to a pistol ; and the drawing of either in an aggressive manner, or the rais- ing or brandishing of the same minaciously in the presence of the superior and at him, is the sort of act contemplated. The raising in a threatening manner of a fire-arm, (whether or not loaded,) or of a club, or any implement or thing by which a serious blow could be given, would be within the -descrip- tion — " lifts up." An assault without a weapon would be punishable not under this but under the next description. " Offers any violence against him." Samuel " construes " offer " as synony- mous with the same word in the term, formerly emplo.ved in our own Article as well as the British, " offer to draw," and therefore as referring only to an attempt to do violence, or a mere exhibition of violence, without the con- summation of an overt violent act, i. e. as an assault simply. O'Brien •" ap- parently considers the term " offer violence " as indicating actual violence, and offer as meaning do or commit. It is deemed the preferable view to regard the {Phrase, as employed in our Article, as a general and comprehensive one, including violence proposed as well as violence committed — assault as well as battery, as indeed comprising any form of battery or of mere assault 880 not embraced In the preceding more specific terms, " strike " and " draw or lift up." But the violence, where not executed, must be physically attempted or menaced. A mere threatening in ivords would not be an offering of violence in the sense of the Article." A striking or offering of violence by shooting, &c., which has resulted fatally, has sometimes been charged under this Article, and the death sentence been Imposed upon conviction." " His superior officer." By the term "superior," as used in this part of the Article, is clearly meant an officer of rank superior to that of the offender — or, where an enlisted man Is the offender, any commissioned officer whatever— whether -or not such officer be, properly speaking, a commanding officer." The Article, as remarked in the Digest," Is thus "broader than Art. 20," which relates to offences against commanding officers only. " Officer "—it need hardly be observed— means here, as elsewhere In the code, commissioned officer." An assault or battery upon a non-commissioned officer, (or disobedience of the orders of one,) by a soldier, is properly charged under Art. 62. To warrant a conviction. It should appear that the accused was aware that the person assailed by him was his superior officer." If the latter was an ofl^cer of the same company, regiment, or garrison, or if he wore a uniform indicating his rank, the accused may in general be presumed to have known or believed that he was such superior. If the officer was not thus readily recognizable, as where he wore no distinctive uniform, or where the offence was com- mltted m the night time, it will depend upon all th e circumstances, as they "Pages 275, 277. ~ ' "Page 81. "Bombay E., 131, note. z"Ztofv!'\f^' "' *■" """""'"'• ^*«'' °°- ''• ««• °«P*- «* the Gu«. 1863; Do. "G. C. M. O. 8, Dept. of Texas, 1891 "Page 27 § 4. ■"See the provision on this subject of Sec. 1342, Rev. Sts "Simmons i 175; O'Brien, 85, MILITARY LAW AND PKECEDEIirTS. g7X appear to the testimony, whether the accused shall be deemed to have had ZZ7 ,^" Z ''""' f'"'"""- '" *"* ^"'=°""^«^ ^"J> ^^ «SS'e«sive sub ordinae at night, or under circumstances in which he is not likely to be recognized the superior will properly at once announce who he is. with Us ««1 ™r. . ?,; '"'"' *''^'*'' ''"'' ""^ **'•* «" ^*'l »>« "'^t^'^'^J evidence, as 881 part of the re« gesta,, upon the trial of the subordinate for an offence • • '"'^^'J^\^''"''^-" The Officer wtU of course be presumably a coT mssumea officer from the fact of his acting as such, in connection with the further fact that all the officers of our army are ^uaUy and aJIke com missioned officers. "In the execution of his office." This term has sometimes been defined by the more familiar expression " on duty." But an officer may be in the execu- tion of his office without being on duty in the strictly military sense, and a more accurate definition of the phrase is believed to be-in the performance of an act or duty either pertaining or Incideut to his office, or legal and aM)ropriate for an officer of his rank and office to perform. An officer is deemed to be in the execution of his office when engaged in any act or service required or authorized to be done by him, by statute, regulation, the order of a superior, or military usage."" It is not essential that the act should be one pertaining to his special branch of duty : thus any officer- engaged in quelling a fray or disorder under the provisions of Art. 24 would properly be regarded as " In the execution of his office." There are certain officers especially charged by their commissions with the executive authority of a command, with whom to be on duty and in the execution of office is the general rule of the military status — as post, regi- mental or company commanders. But any officer, however special his function, wlien called upon in an emergency to act the part of a military superior, will be "in the execution, of his office" In the sense of the present Article. _" Disobeys any lawful command of his superior Officer" — Obedience to orders in general. The importance of Art. 21 is owing mainly to the fact that It makes punishable the specific and capital offence of Disobedience of Orders. Obedience to orders Is the vital principle of the military life '" — the 882 fundamental rule, in peace and in war, for all inferiors through all the " In 6. O. 34, Dept. of Va., 1863, a conviction ot a soldlei upon a cbarge of offering violence to bis superior officer was disapproved by Gen. Dix, upon the ground, (In part,) that tbe officer assailed " did npt belong to the same reglmej^t witb tbe accused, was not in uniform, nor did he wear any badge of office ; " aiid because it was " not shown that the accused knew him to be an officer, or that he declared himself to be so." » Simmons § 174; Hough, 83; Id., (P.) 79; O'Brien, 81-2; Ben«, 207. '"> " Obedience to command is the chief military virtue, in relation to which all others are secondary and subordinate ;'' it is, for the soldier, " tbe first great bond or charter of his service." Samuel, 266, 283. " The first and last virtue of a soldier." Harcourt, 16. " The first, second, and third part of a soldier is obedience." Sutton v. John- stone, 1 Term, 546. " The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in an army." McCall v. McDowell, Deady, 244. " To Insure efficiency ttn army must be, to a certain extent, a despotism. Each officer • • • is invested wUh an arbitrary power over those beneath him, and the soldier who enlists in the army waives, in some particulars, his rights as a civilian, sur^ renders his personal liberty during the term 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 4isclplined for offences unknown to the civil law, to relinquish his right of trial by jury, and to receive punishments whicji, to the civilian, seem out of all proportion to the magnitude of the offence." U. S. «. Clarke, 3 Fed., 713, (Brown, J.) And see Trammell v. Bassett, 24 Ark., 499. " No other obligation must be put in competition with this; neither parental authority, nor religious scruples, nor personal safety, nor pecuniary advantages from other services. All the duties of his " (the soldier's) " life are, according to the theory ot military obedience, absorbed in that one duty of obeying the command of the officer set over him." Clode, 2 M. F., 37. And see remarks of Secretary of the Navy in G. C. M. O. 1, Navy Dept., 1882. 572 MILITAltY LAW AND PRECEDEITTS. grades from the general of the nrray to the newest recruit.' This rule the officer finds recited in the commission which he accepts, and the soldier. In his oath of enlistment, swears to observe It. As In the British system all military authority and discipline are derived from one source — ^the Sover- eign,' so in our army every superior, in giving a lawful command, acts for and represents the President, as the Commander-in-chief and Executive power of the Nation, and the source from which his appointment and authority pro- 883 ceed.' Hence the dignity and significance of a formal -military order, and hence the gravity of the obligation which' It imposes upon the in- ferior to whom it Is addressed. The obligation to obey is one ta be ful- filled without hesitation, with alacrity, and to the full;* nothing short of a physical Impossibility ordinarily excusing a complete performance.' While a certain discretion In the execution of an order may sometimes be permitted to officers high in rank or command, or officers charged with expert or peculiarly responsible duties,* the Inferior cannot, as a general rule, be permitted to raise a question as to the propriety, expediency, or feasibility of a command given hJm, or to vary In any degree from its terms.' Even where the order is ' " The inferior In place, whether standing one or more hundred steps below his superior, is bound to show implicit obedience to the commands of the latter." Har- court, 13-14. ' Clode, M. L., 107. ' The . following extract from Samuel, (p. 283.) is equally applicable to our militarj system : — " The Constitution has submitted the actions of the army to be directed and controlled In everything by one supreme commander, from whom, by a number of com- municating branches, in a continued, uninterrupted and unabated stream, all orders are made to flow to the Individuals, near or remote, attached to the military state; which orders, as they partake all alike of the essence of supreme command, every officer or soldier is obliged Implicitly to obey." To which may be added from Clode, (M. L., T4,) — -"All orders of subordinates must be consistent with supreme authority, and, in case of conflict, that must be obeyed which Is imposed by the higher authority." • "A mllitnrr subordinate is compelled to an unhesitating obedience to the very letter of the command received or order Issued." Harcourt, 21. "A subordinate, on receiving an order, must obey promptly and implicitly, • • • must at once com- ply. • • • In presence of the enemy, more particularly, is this mechanical obedience due." O'Brien, 83. And see case of Lieut. Dawson, " charged with hesitaUnn and declining " to execute orders. Simmons i 595, note ; also De Hart, 165. The obe<=-« *- ^^^^"^^ in r O 140 Navv Dept 1869, (Aet. Surgeon Green's case,) and Do. 182, Id., ISTd. The icT'ofJustavus Adolphus makes punishable, as a specific military offence the BlriSg ofan Lawful command. See his Arts. 27 and 46, and compare his Art. 45. In Appendix. « See De Hart, 297 ; O'Brien, 302 ; G. O. 34 of 1852. 576 MILITARY LAW AND PKECEDENTS. the onus of establishing this fact will, In all cases — except where the order is palpably Illegal upon its face — devolve upon the defence, and clear and con- vincing evidence will be required to rebut the presumption." 889 The legality of the order may depend upon the period, whether one of peace or war, (or other emergency,) at which It is issued. An order which would be unlawful in peace or in the absence of any public exigency, may be perfectly lawful in war as being justified by the usages of civilized warfare." Thus an order for the seizure of citizens' property for the sub- sistence or transportation of the troops, the construction of defences, &c., or for its destruction to facilitate the operations of the army in the field, or to prevent its falling into the hands of the enemy, would be not only authorized, but to disobey it would be a grave military crime. But, in general, ih time of peace an order similarly In disregard of private right would be repugnant to the first principles of law, and to fail to obey it would constitute no violation of the present Article." But while a military inferior may be justified in not obeying an order as being unlawful, he will always assume to do so on his own personal responsi- bility and at his own risk." Even where there may seem to be ample warrant for his act, he will, in justifying, commonly be at a very considerable disad- vantage, the presumption being, as a rule, in favor of the legality of the order as an executive mandate, and the facts of the case and reasons for the action being often unknown in part at least to himself and in the possession only of the superior. In the great majority of cases therefore It is found both safer and wiser for the inferior, instead of resisting an apparently arbitrary authority, to accept the alternative of obeying even to his own detriment, thus also plac- ing himself in the most favorable position for obtaining redress in the future." On the other hand, should injury to a third person, or damage to the United States, result from the execution of an order by a subordinate, the plea that he acted simply in obedience to the mandate of his proper superior will be favored at military law, and a court-martial will almost invariably justify 890 and protect an accused who has been exposed to prosecution by reason of his unquestioning fidelity to duty, holding the superior alone respon- sible. How far he will be protected by the civil tribunals, If sued or prosecuted on account of a cause of action or offence involved in his proceeding, will be considered in Pakt III of this treatise. Unjust or objectionable commands. That the order was merely unjust or unreasonable would, it need hardly be added, constitute no defence to a charge of disobedience of orders under this Article." The plea that the order was. op- posed to the religious scruples of the accused, and that he was therefore war- ranted in disregarding it, is one which has been considerably discussed in » Samael, 284 ; O'Brien, 82 ; De Hart, 297. " O'Brien, 83 ; Olmstead's Case, Brightly, 9. n.t,???T o"'^^"■>''•/?'°°=''' ^^ ^'"'"''' "''' ^°« 1 Blatchfora, 549; Koonce v. Sf, V, K^°- '4 ,f i. 1°'* "■ ®*°"*' * ^°"^' 205. Christian Co. Ct. e. Rankin, 2 Duv., 502 ; Kelghley v. Bell., 4 Fost. & Fin., 790. and. other ^asea cited in Part III 27 Texas," ''" ^' '' ^' °' ^^ "' '"'' ' ""^ '* "' ''"' ' °"'^''^' ^^ = ^''"'^ "■ «»"''''' Barh.°'m-8.^'' '' "' °' "' ""'"^ "' *"' ''°*°'°"' '^®^- ^"^ '='""P"« ^^"^'^ ^- ««"'- " "In the miJifio case of State v. Woodman, Smith, 25. 31, it was held that to entitle IZ^'ur^^ZTVT ^r'^°^'^'°''t«. "W» command mnst be lawful ar^ ret sonahle^ It ne^ hardly be said that no such theory of military obligation could be allowed to prevail in the army. In a recent case it was held to be no excuse for not JeH^n^w " r^'"" "^ "'"'• *'"'* «««" o'l^". ^ the opinion of the °n' MILITAKY LAW AND PRECEDENTS. 577 England, where It was held wholly insufficient as a defence." It would of course be held equally untenable In our practice «ms superior officer." This is a less comprehensive tern, as here em- ployed than Where first occuring in the Article. The "superior officer " here in- tended must be one authorized to give the order; else indeed his command would not be a "lawful" one. Thus an officer of the general staff of 891 the army may rank very considerably a certain other officer of such staff or a certain line officer, witheut being authorized under ordinary cir- cumstances to give an order to either. A staff officer, however, may not un- frequently be iu a position in which he is authorized to make and give orders as a "superior," and in which a disobedience of his order will constitute an offence under this Article. As in the instance of an ordnance officer in charge of an arsenal, or a medical officer in charge of a hospital." The ." superior officer " contemplated by the Article will indeed in general also be a commanding officer; but he need not be the regular commander of the regiment, post, depart- ment, &c. : it Is sufficient if he be an officer upon whom the command has tem- porarily devolved. To constitute the specific offence of disobedience of orders in violation of Art, 21, the " superior officer " must of course be known to he such by the accused, at the time of his giving the order which is not obeyed, XI. THE TWENTY-SECOND, TWENTY-THIRD AND TWENTY-FOURTH ARTICLES. [Mutiny, Sedition and Affray.] "Abt. 22. Any officer or soldier who begins, excites, causes, or joins in any mutiny or sedition, in any troop, battery, company, party, post, detachment, or guard, shall suffer death, or such other punishment as a court-martial may direat. "Abt. 23. Any officer or soldier who, being present at any mutiny or sedition, does not use his utmost endeavor to suppress the same, or having knowledge of any intended mutiny or sedition, does not, toithout delay, give information thereof to his commanding officer, shall suffer death, or such other pumishment as a court-martial may direct. "See Capt. Atchison's case, Clode, 2 M. F., 37, 66-7; Hough, (P.) H3-117. In the debate upon this case In Parliament, the Duke of Wellington said : " If an officer or any other member of the army Is to be allowed to get rid of the discharge of a dis- agreeable duty upon such a plea, there is an end of all discipline In the army." Hough, (P. 118,) In citing a further case of an officer in India who had declined to go into the trenches on Sunday, expresses himself as follows : — " Every one must admit that if an officer will refuse to obey orders, because they may be contrary to his religious belief regarding the Holy Scriptures, he is unfit to remain in the army. The real Christian is that person who does his duty to his sovereign and to his country without demur. If his conscience be unsettled, he should quit the army at once, and not unsettle the affairs military." And he adds — " Many battles have been fought on a Sunday." See also Manual, 20; Pratt, 125. And compare In this connection Reynolds V. D. S., 98 D. S., 145, to the effect that a person's religious belief cannot be accepted as a justification of his overt violation of the criminal law of the land. « See G. C. M. O. 8, Dept. of Texas, 1891. There can be no question as to the authority of the medical officer under these circumstances, provided of course his order relates to a matter within his province. Where there is doubt whether the officer giving the order Is the " superior " officer of the accused in the sense of this Article, the offence wUl of course properly be charged under Art. 62. 440593 O - 42 - 37 578 mHiItary law and precedents. •• Abt 24 All officers, of what condition soever, have power to part and quell all quarrels, frays, and disorders, whether among persons belonging to 892 Ms own or to another corps, regiment, troop, battery, or company., and to order officers into arrest, and non-commissioned officers and soldiers mto confinement, who take part in the sam^, until their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or non-commissioned officer, or draws a weapon upon htm, shall be pun- ished as a court-martial may direct." Twenty-second Aeticie. ORIGIN This and the following Article may be traced to Art. 5, Sec. II of Charles I, Art. 8 of the Parliamentary Code of the Earl of Essex, and Art. 13 of James II ; various forms of the ofEence of mutiny were also made capitally punishable by Arts. 54, 65, 75, 78 and 120, of Gustavus Adolphus. ITS PBINCIPAI. SUBJECT. The form of this Article, as of the two which follow it, has undergone no considerable change since 1775." Of the acts which It makes punishable, the principal, Mutiny, has commonly been characterized as the gravest and most criminal of the offences known to the military code. It has also an historical significance; the well-known mutiny of Jacobite troops in 1689" having given rise to the Mutiny Act, which for nearly two hundred years constituted the statutory military law of Great Britain. MUTINY DEFINED. Mutiny has been variously described, but in general not in such terms as fully to distinguish It from some other ipilitary crimes, the characterizing intent not being sufficiently recognized." It may, it Is be- lieved, properly be defined as consisting in an unlawful opposition or re- sistance to, or defiance of superior military authority, with a deliberate pur- pose to usurp, subvert, or override the same, or to eject with authority from office. 893 It is this Intent which distinguishes it from the other offences with which, to the embarrassment of the student. It has often been confused both in treatises and General Orders. Thus, disrespect toward a commanding officer, the offence which is the subject of Art. 20, has sometimes been chJtrged as mutiny." More frequently the doing or offering of violence to a superior officer, and disobedience of orders, — offences specifically made punishable by Art. 21, — have been so charged or considered." Still more frequently has the •designation of " mutiny '' been erroneously attached to disorders of the dass known as " mutinous conduct " — such as defiant behaviour or threatening •" The omission In 1806 of the words " on any pretence whatsoever " has already been noticed nnder Art. 21. " " It stands conspicuously In front of the line of military crimes." Samuel, 249. " The most heinous known to military law." O'Brien, 70. It can however scarcely be regarded as a graver offence than Misbehaviour before the enemy. " Referred to ante. In Chapter II, p. 19. "See the deflnitlons of Samuel, (p. 253; but see Id., 808;) Simmons, (§ 170;) Thrlng, (p. 175 ;) O'Brien, (p. 71, taken from Bombay R., p. 128 ;) and In S. O. 77 of 1837. «See Hough, 107; Id. (P.) 120. «> Convictions, however, of such offences under the name of " mutiny " have been in some cases expressly disapproved. As In G. O. 10, Dept. of the Mo., 1863, where the offence consisted mainly In the striking of an officer by a soldier. In Lieut. Col. Fre- mont's case, (G. O. 7 of 1848,) a finding of guilty of " nrutlny " was disapproved by the President upon the ground apparently that the acts alleged under this charge consti- tuted rather Instances of disobedience of orders. Of course the offences specified In Art. 21, If committed in the deliberate purpose of subverting superior authority, would properly be chargeable as mutiny. MILITABY LAW AND PKECEDENTS. 57& language toward superiors, muttering or murmuring against the restraints of military discipline," combinations of soldiers with a view to acts of violence or lawlessness which however are not committed," intemperate and exciting discussions at meetings held for the purpose of protesting against orders, de- clining to perform service In the honest belief that the term of enlist- 894 ment has expired," &c. Such disorders, stopping short of overt acts of resistance, or not characterized by a deliberate Intent to overthrow superior authority, do not constitute In general the legal offence of mutiny, but are commonly to be treated as "conduct to the prejudice of good order and military discipline " In violation of Art. 62." And the same is to be said of disorderly conduct under the Influence of intoxication, which, though ae- companed by resistance to a superior, is without the animus peculiar to mutiny In law." The definition of mutiny at military law is Indeed best Illustrated by a ref- erence to the adjudged cases treating of that offence as understood at maritime law. Thus, in regard to mutiny or revolt on American merchant vessels. It has been expressly held that an intention to overthrow for the time at least the lawful authority of the master is an essential element of the crime," that simple violence against the officer, without proof of Intent to override his authority, is not sufficient to constitute revolt or mutiny," that mere disobedience of " This " muttering or murmuring " Is classefl as mutiny by some of the earlier writers. See Samuel, 254 and note; Hough, 71. " See the cdse of Cadets Fairfax, Vlnlng, Bagland, Loring and Holmes, a committee representing an unauthorized combination of cadets of the Military Academy, formed with a view to induce the redress of alleged grievances. Am. S. P., Mil. Af., vol. 2, pp. 5-30. (November, 1818.) "As in the case of the Tennessee militia, treated and brought to punishment as mutineers hy Gen. Jackson, In 1814. See post. And see the case In Diqhst, 31, of a body of volunteers which, having enlisted " for the war," (1. e., the war of the late rebellion,) refused, after active hostilities had tcnninated, to serve against Indians. Other instances occurred, during the late war, of volunteers, who, honestly believing that their contract had expired or that they could not otherwise legally be required to render further service, joined in refusing to serve and demanded their discharge. Such were In general cases of mutinous conduct, or disorder in violation of Art. 62, rather than mutiny, the true onimus of mutiny not being present. See G. C. M. O. 521 of 1865 • G. O. 32, Dept. of N. E. Va., 1861 ; G. O. 108, Army of the Potomac, 1882. A combination, however, to refuse to perform military service, legally and properly re- quired of the parties, if persisted in after due warning, &c., may certainly be treated as mutiny. See text poat. ^ ^ j "Simmons, (S 171.) referring to the "distinction between mutinous conduct and mutiny," observes—" Mutinous conduct Implies behavior tending to mutiny : a soldier whose conduct is evidently of a mutinous character may yet be clear of the completion or commission of that offence." And see, as to the same d*sti°'=«»°' f ojigk. 71 Id (P) 58- O'Brien, 79-80; DionsT, 30. In G. O. 115. Dept. of Washington. 1865, Gen. iugur says : "The conduct of the prisoners, though disorderly and riotous, do^ no^consmute mutiny/' ^^ ^^^ ^^ ^^^^ ^^^ ^^^ disapproves a conviction of mutiny for the reason that the evidence showed that the accused was only ^toxlcated disorderly and disobedient." And see a similar case in G. O. 10, A. & I. G. O., Klch '^"^V.Tl: Kelly, 4 Washington, 530; U. S. .. Smith, 3 "•' J« ' J^'J" /,i ^H' « Mason, 277; D. S. v. Hemmer, 4 Id., 107, U. S. i;. ?'«''"»/»"' ^/""""^^-i^Ys gtory J Forbes Crabbe, 560. And see 14 Opins. At Gen., 589. In U S .. Hames Sto,7. J. speciflcally compares the situation of a ship's company to that of a miUtary comm^ ^^ In the rfeceht case of Thompson v. The Stacey Clarke, °* ?'*''" „7,;'. „""t^ deprive him consisting ia "attempts to usurp t-'e/^^-XZ in thrtree' and lawfS exercise Of it for any purpose by violence, or in ««i««ng him in the fre^ ana Of bis authority, the overthrowing of the lega authority of the master w to remove him against his will, and the like. (Toulmln J.) Morrison, 1 «U. S. V. Kelly, ante; V. S. v. Lawrence, 1 Cranch C, 94. V. B. v. Sumner, 448 ; U. S. v. Almeida, Whart. Free., 1061. 580 MILITAET LAW AND PRECEDENTS. 895 orders, unaccompanied by such intent, does not amount to mutiny ;" and that insolent language or disorderly behaviour Is per se Insufficient to establish It" PBOOF OF THE INTENT. The intent may be openly declared in words, or it may be implied from the act or acts done, — as, for example, from the actual subversion or suppression of the superior authority," from an assumption of the command which belongs to the superior," a rescue or attempt to rescue a prisoner," a stacking of arms and refusal to march or do duty," a taking up arras and assuming a menacing attitude," &c. ; or it may be 896 gathered from a variety of circumstances no one of which perhaps would of itself al6ne iave justified the inference. But the fact of combination— " D. S. V. Smith ; U. S. v. Haines ; U. S. v. Thompson ; U. B. v. Morrison — ante; also U. S. V. Barker, 5 Mason, 407. "•TJ. S. V. Kelly; U. S. v. Thompson — ante. " As In the case of Lt. Col. Johnston, (James, 373 ; Hough, 72,) where the accased, patting himself at the head of his command, seized ai(d imprisoned the mlUtarr governor of New South Wales. And see the case, published In 6. O. 16, Dept. of the Mo., 1864, of certain officers dismissed for mutiny in unlawfully arresting and dispossessing «f bis command the commander of the post. In the case of the mutiny of the crew of the "Bounty," (1789,) the captain and officers were seized, forced into a boat and aban- doned in mid-ocean. " See cases In last note. Sec. 5360, Rev. Sts., expressly designates as constituting revolt and mutiny at maritime law the act of "any one of the crew " who " usurps the command of such vessels from the master or other lawful officer in command thereof, or deprives him of authority and command on board." " G. C. M. O. 513 of 1865 ; Do. 104, Dept. of Ky., 1865 ; Do. 4, Id., 1866 ; G. O. 87, Army of the Potomac 1862. And see Do. 29, Dept of the South, 1864 ; Do 16. Dept. of Ala., 1866 ; G. C. M. O. 1, Dlv. of the South, 1865 ; Hough (P.) 66 ; U. S. v. Morrison, 1 Sumner, 450. " See cases, published in G. O. 43 of 1864, of four sergeants and four corporals, tried for stacking arms with other soldiers, and refusing to obey orders or do any military duty; also 6. O. 29, Dept. of the South, 1864; Do. 20, Dept. and Army of the Tenn 1866. ■' •» See case in G. C. M. O. 227 of 1864, (where an officer was severely wounded in the course of the mutiny ;) Do. 50 of 1867, (where one officer was killed and two other officers were woundfed by the alleged mutineers ;) G. O. 131, Sixteenth Army Corps, 1863, (where the accused did, in company with other comrades, and as one of their leaders, take his arms and by force pass out of the camp of the regiment, and attempt to disperse an assembly of officers of the brigade, being held by proper authority at a dwelling house near the camp ;) G. C. M. O. 1, Dlv. of the South West, 1865 ; G. O. 16, Dept. of Ala., 1^66, (where the accused, a first sergeant, fully armed and in violation of orders, left the camp, with a mob of soldiers, and formed with them "a line of battle " before the camp of another regiment, for the purpose of forcing the surrender into their custody of a soldier of their own regiment, who had been arrested by a guard from the other regiment for attempted violence to one of its officers ;) G. C. M. O. 104, Dept. of Ky 1865, and Do. 4, Id., 1866, (where the mutineers assembled with loaded muskets' threatened the lives of their officers and offered violence to one of them and beside releasing a prisoner, " attempted to take possession of the artillery of the fort where they were on duty ; ") 6. C. M. O. 61 of 1865, (where an officer with a body of soldiers charged the jail, and, over-powering the guard, assumed control of it, and further re- sisted the provost-marshal and ordered the soldiers to shoot him.) G C M O 69 Dent, of Arizona, 1887, where five enlisted Indian scouts, at the San Carlos Agency " havijag been disarmed and ordered to the guard house by the commanding officer, did disobey said order, and did m connection with others, resist arrest, seize arms, open Are upon the commanding officer and others connected with the military service, and escape" All were convicted.) And see cases in G. O. 104, 243, of 1863; Do 115 Dent of Washinir ton, 1865 ; G. C. M. O. 142, 147, 154, Dept. of the i«o 1868 Washing- In the historical case of the mutiny in the " Pennsylvania Line," in June 1783 the rVTw'Jr*"""',' i° '"/'"•' '^"'""''^ ^""^'^^ «»« '"t" their demands tor pa^: so 2^236" mVsrrrtr:. 'Ti 'if^ "' '^""^ *» ^'"=''*°"- * ''"^»"" MILITARY LAW AND PRECEDENTS. 581 that the opposition or resistance Is the proceeding of a number of Individuals acting together apparently with a common purpose "—is, though not con- clusive," the most significant, and most usual evidence of the existence of the intent in question. INTENT AliONE NOT STTFFICIENT. While the Intent indicated Is 897 essential to the offence," the same. is not completed unless th6 opposition or resistance be manifested by some overt act or acts, or specific con- duct. Mere Intention however deliberate and fixed, or conspiracy however unanimous, will fall to constitute mutiny." Words alone, unaccompanied by acts, will not sufflce.** A VIOLENT ACT NOT NECESSABT. The opposition or resistance need not be active or violent." It -thus may consist" simply in a persistent refusal or omission, (with the intent above specified,) to obey orders or do duty. THE BESISTANCE, &c., MUST BE TO LAWFUL AUTHOEITT. If the superior when resisted is attempting to execute an illegal order," or to enforce his authority by Illegal means," it will not be mutiny to resist him. But the unlawfulness of his act must be manifest and unquestionable to justify the in- ferior in resistance, and what has been said under Art. 21, as to the responsi- bility assumed In disobeying a command on the ground that It is not lawful, is even with greater force applicable here. "In addition to the cases already cited, see Instances of combinations of soldiers to resist superior authority or not comply with orders — in G. O. 136, Dept. of Washington, 1865, (where six soldiers jointly refused to do guard duty ;) 6. C. M. O. 521 of 1865, (where thirty-four non-commissioned officers and privates of a regiment jointly refused to fall in for drill or obey orders;) G. O. 32, Dept. of N. E. Va., 1861, (where sixty-two non-commissioned officers and privates of the same regiment " formally and positively, in the presence of their regiment, refused to do any further duty whatever," on the pretext that they were no longer in the service;) G. C. M. O. 130 of 1865; (where there was a combination of officers " to compel their commanding officer into a course of action not in accordance with his judgment." > In the case of the Tennessee militia, in 1814, over two hundred, including, some officers, abandoned the service and proceeded to their homes. See pott. "O'Dowd, 35. " That there can be no mutiny In the ahaence of the specific intent, is strikingly illus- trated in the case published In G. C. M. O. 50 of 1867, where, notwithstanding extreme acts of violence committed Xa the alleged mutineers, it was held by the reviewing author- ity that their conduct did not proceed from a mutinous disposition, but was induced by " outrageous treatment " on the part of one of their officers, and the sentence imposed by the court was therefore remitted. And see case described in Digest, 32. Ezcnses, however, for conduct in the nature of mutiny are to be accepted with great caution, since actual mutiny, while It may be extenuated by circumstances, admits of no legal defence. Seie "Punishment," post. » U. S. V. Kelly, 4 Washington, 530 ; O'Brien, 72. ••Simmons S 170; Griffiths, 22; Ben«t, 258. " Simmons I 170 ; O'Brien, 70, 71. And see case of Col. Louis Bache, Printed Trial, (1814 ) where the accused, with other officers, simply declared, in the presence of their superiors, a determination not to obey their orders, <>' ^"•'mit to their authority or to the laws of the United States; also U. S v. Haines, 5 Mason, 278 ; 6. O. 42 of 1864. At maritime law, it has been held that a single instance of refusal or non-comphance, (with the intent essential to the offence,) is «»ffl«!«°V" ^""s n™ a^rtfs" 225": Smith, 1 Mason, 148; D. S. v. Hemmer, 4 Id., 107; also U. S. v. Nye, 2 Curtis, 225, V. a. V. Borden, 1 Sprague, 376. -See U. B. v. Smith, 3 Washington, 525 ; V. S. v. Borden, ante ■ "As where at maritime law, the superior attempts to compel obedience to orders by the use If a deadly weapon In such a manner as to etidanger life when in fact no neces- sity existed for such extreme measures. See TJ. S. v. Sharp; 1 Peters C. 127, D. S. v. PetcTBon, 1 Wood. & Mlnot, 311; U. S. «. Smith, ante. 582 MILlTAIiy lAW AND PRECEDENTS: 898 A COMBINATION NOT ESSENTIAL, THOUGH TISTIAIi. To con- stitute mutiny it is not necessary that there should be a concert of several persons: a single indlyldual may entertain the intent and commit, or, in the words of the Article, " hegin," an act of mutiny." As already indicated, however, a combination Is usual and indeed almost Invariable; the causes which actuate mutiny being commonly matters of joint grievance or complaint with a greater or less number of persons. The concert, where it exists, need not necessarily be preconcert;" but, as mutinies naturaUy grow out of previous consultations and conspirings, it wiU generally be such." SEDITION. This offence, which, as designated in the present Article, Is by the earlier writers" nearly identified with mutiny. Is, in the more recent treatises, distinguished as beivg a resistance tq the cvoU power, demonstrated by riot or aggravated disorder. Thus Simmons says : — " Sedition is supposed to apply to acts of a treasonable or riotous nature, directed rather against the public peace and the civil authority than military superiors, though necessarily involving or resulting In insubordination to the latter."" No Instance of a trial, under this Article, for sedition, as thus defined, is known to have ever occurred In our mlUtary history." 899 THE SPECIFIC ACTS MADE FTTNISHABLE BY THE ARTICLE.— " Who begins, excites, causes, or joins in, any mutiny," &c. Samuel " distinguishes in general terms the two classes of persons contemplated by the Article as those who lead and those who follow. And the simplest view to talie of the words quoted is, to treat iegin, ewcite and c See a. O. 53 of 1842, In regard to the treatment of private soldiers by their SQperiors, where It Is enjoined by Gen. Scott that In a case of mutiny the proper course, if practicable to pursue it, is not to cut down even the ringleaders, but to seize and confine them. Also G. O. 32, Dept. of N. H. Va., 1861, In which it Is declared that sixty-two mutineers — enlisted men of the same regiment — " are with the Approval of the General-ln-Chief, hereby transferred in arrest from their regiment, as no longer worthy to serve with it, and will be sent to the Dry Tortugas, there to perform such fatigue service as the officer commanding may assign them, until they shall, by their future conduct, show themselves worthy to bear arms." [Gen. McDowell.] Upon the subject of summary proceedings, Involving the taking of life. In the suppression of mutiny, Samuel, (p. 268,) writes :—" When they are resorted to. It la requisite in every case, in order to justify the departure from legal forms, that it be clearly made out that the mutiny was flagrant, and that It called for strong and Instant measures to put It down ; and that the means used were not more violent tlian needful, and that It was not safe to wait for the trial and execution of the offenders by the ordinary course of military justice." In the case of the mutiny of the New Jersey Brigade, in January, 1781, where Washington, In his orders to MaJ. Gen. Howe, directed : " If you succeed in compelling the revolted troops to a surrender, you will Instantly execute a few of the most active and most incendiary leaders,"— two of the ringleaders were in fact exe- cuted, but not till after a " field court-martial " had been held, and they had " received sentence of death by the unanimous decree of the court" Sparks' Writings of Waab- ington, vol. VII, pp. 381, 382, 386, 564. " See O'Brien, 78 ; G. 0. 4 of 1843. " See Samuel, 260, 261, 267 ; Hough, 80, 81 ; Harcourt, 15 ; O'Brien 77 78 . 1"^."^^ punished gum and supported authority, it now becomes 'proper to do ^^^^^ ^Z Y.^^hi^Ston, referring to the mutiny m the New Jersey line. Sparks' Writings of Washington, vol. VII, p. 136. •'i'»"» MILITAKT LAW AND PRECEDENTS. 587 seeing that a hearing was given them and justice done them when aggrieved, and of duly considering their feelings when natural and reasonable." 906. a. aiVING INFORMATION. The Article further requires that offi- cers or soldiers "having knowledge of any Intended mutiny," &c., shaU, "without delay, give information thereof " to the " commanding officer ; "— thus, in the words of Samuel," " to prevent an impending mutiny by crushing it in the bud, and before it burst forth in its bitter and unwholesome fruit." WhUe the suppression of mutiny will In most cases be incumbent more especially upon officers, the duty of giving information of the same will perhaps oftener devolve in the first instance upon inferiors in rank. Thus Hough"* observes that an Intended mutiny "Is more likely to be known to the non- commissioned officers of the regiment than to any other persons In it, from their living in the same barracks with the men." In view of the imperative injunction to act without delay, an officer or soldier cannot be permitted to exercise his own judgment as to whether he will or not impart the intelligence contemplated." PROOF. To sustain a charge of a violation of the Article under considera- tion, the following particulars should be averred and proved, visi. — the existence of an actual mutiny, or of a purpose to commit mutiny; the presence of the accused at the mutiny," or the fact of his haviirg come to the knowledge that one was intended; the neglect or failure to use the proper efforts to suppress, or the neglect or failure to give the information, (or to give it without unreason- able delay,) to the commander. It may be noted that officers or non-commissioned officers who " join in " a mutiny, in violation of Art. 22, will in general be also chargeable with the offence of not endeavoring to suppress a mutiny, in violation of Art. 23. 907 TWENTT-FOTJBTH ABTICLE. ITS GENERAL EFFECT. This Article, (which dates from the British codes of 1642 and 1688,") practically adopts the doctrine of the common law in regard to the suppression of affrays, extends it to cases of " quarrels " and "disorders," and applies It, under certain conditions, to the military state. Placed as the Article is in immediate connection with the provisions relating to mutiny and duelling, it may well be Inferred that one of its main purposes was, by the summary proceeding which it authorizes, to put a stop to those contentions and irregularities, which, if not suppressed at the outset, might readily lead to these formidable crimes. THE COMMON LAW AS TO AFFRAYS. At common law, a " fray " or " affray " is a fighting or hostile contention of two or more parties in public, "Hough, (P.) 36-53, details a series of mutinies which occurred chiefly In India, and arose In great part from neglect to make regular payments, Insufflcleney of rations, Tarlatlons from the terms of the contract of service, and even disregard of the religious principles and customs of the native troops. The most marked was the general mutiny and rebellion of 1857, when, to cite from Chambers, (BncyclopaBdia — "India,") "the Hnfleld rifle and Its greased cartridge were put into the hands of the Sepoys without explanation and precaution, and Gen. Anson, the commander-in-chief, snubbed caste, and was against all concession to the 'beastly prejudices' of the natives." » Page 259. And see Tytler, 187. " Page 81. And see cases of non-commissioned ofBcers convicted of a violation of this Article, In not giving such Information, &c.,— In G. O. 16, Dept. of Ala., 1866 ; G. C. M. 0. 81, 142, 147, Dept. of the Mo., 1868. "See Hough, (P.) 77. "See case of Lud Gaylord, ante. "See under "Twenty-Fifth Article "—po»#. 588 MILITABY LAW AND PRECEDENTS. to the terror of the citizens. Derived from the French affraver, to frighten, the element of being fear-causing, and so threatening to the peace and security of law-abiding persons, is the gist of the definition. It Is distinguished from an assault, or assault and battery, in that, besides being necessarily public, it is a mutual contention on the part of the actors, and not a mere violence or at- tempted violence committed against another, in mvitum. Mere words or per- sonal abuse cannot alone amount to this offence; to constitute an affray the words must be accompanied by acts. At the same time It is held not absolutely necessary to the ofEence that actual violence, as by wounding, blows, or other battery, should be inflicted upon the person, provided dangerous weapons are exhibited and sought or threatened to be used by one or more of the parties against the other or others."" All persons present engaged in aiding and abetting an affray are principals.' 908 An affray being a disturbance of the public peace, and It being the right as well as the duty of the citizen to quell or aid in quelling all breaches of the peace, the authority of private individuals to part and restrain persons engaged in an affray is fully recognized at law.* APPLICATION OF THE PBINCIPLE IN THE MILITASY SZSVICE. An officer of the army is still a citizen and has the same summary power as any citizen forcibly to repress frays" — a power which it is especially his right and duty to exercise In cases occurring in the army. Recognizing this, the Article, In its zeal for the order and discipline of the service, extends the power to the suppression of " quarrels " and " disorders." ' By these designations, which are more general and colloquial in their use than the more technical term " frays," are evidently Intended any unruly contentions or disturbances in public among or by officers or soldiers, whether or not accompanied by vio- lence employed or threatened.' They may thus consist of mere wars of words, provided they are such as, if not presently quieted, would be likely to lead to blows or other overt acts of force. BY WHOM THE POWEB MAY BE EXERCISED. Construing the words — "All officers of what condition soever" with the words in the 909 last clause — " such officer or non-commissioned officer," it is clear that not only commissioned officers but sergeants and corpoorals are vested '«°0n the definition and nature of affray, see Coke, 3 Inst., 158; 1 Hawkins, c. 63, s. 1, 4 ; 4 Black. Com., 145 ; 1 Russell, Cr. 291 ; 2 Wliarton, C. L. |. 1551 ; 2 Bishop] C. L. §,1; Simpson v. State, 5 Yerg., 356; State v. Heflln, 8 Humph., 84; Duncan v. Com., 6 Dana, 295 ; Com. v. Simmons, 6 J. J. M., 615 ; Hawkins v. State, 13 Qa 322 ; O'Neill V. State, 16 Ala., 65 ; Child v. State, 15 Ark., 205 ; Samuel, 399 : Houeh 202 •Carlln v. State, 4 Yerg., 143. »1 Hawkins, c. 63, s. 11 ; 4 Black Com., 145; 1 Bishop, C. P. { 168; Timothy v Sampson, 1 C, M. & R., 762 ; Price v. Seeley, 10 CI. & Fin., 28 ; Phillips v Trull 11 Johns., 387. ' •See Simmons § 1096-1100; Harcourt, 178; Plpon & Col., 190; Bowyer, Com on Bug. Const., 499; Burdett v. Abbott, 4 Taunt, 499; G. O. 52, Dept. of the South 1871 'As to the duty of an officer to use due diligence to prevent riot and disorder In his ^"."S"^' fe '■^""'^s of ««"■ Schofield In G. 0. 104, Dept. of the Mo.. 1863. In G. O. 63, Dept. of the Tenn. 1863, Gen. Hnrlbut, in remarking that by Art. 24 officers are not only empowered but "required" to quell affrays, adds that the accused officer, in ^%^TJT' '"l -y, "f." T"""^ *° *""" *•"= "'« 0' M« commander, through the ?n G O 92 Dent"" „°f tb^^R ^r.^^l'V '"'"^"^ "'"' ""* " ''"^ ^o tie contention. In GO. 92 Dept of the South, 1872, Gen. Terry properly holds that "an officer under orr«t is not deprived of the authority conferred by this Artlele to queU frkysor dls^ ^X^r^ ^l-n^cr^ni, "'^aktntaV InTy-r^rr^Ss'b"^ '""' T^ •' disorder " within the meaning of the Artlcl^ ' "* '" "SS'^ated MILITABT LAW AND PRECEDENTS. 589 with the power to part, quell and arrest, without regard to the superiority in rank of the persons whom they may thus regulate and restrain.' An inferior however, would not properly assume to exercise the authority to arrest a superior in the presence of a senior officer, unless indeed the latter was either himself concerned In the offence or conspicuously recreant in his duty on the occasion, or was incapacitated to act— as by drunkenness It is further clear from the terms of the Article that' the power conferred is one not attached to command but quite independent of it since it may be exercised without regard to the regiment, company. &c., to which the persons offending may belong. MODE OF EXERCISE OF THE POWER. To part affrayers and quell a fray or disorder, the officer may employ such means as may be requisite, resort- ing even to the use of a deadly weapon if other means fail or are inadequate. The action of an officer in repressing a disturbance which, if not at once subdued, may result In a mutiny or riot, should not be too strictly criticized; at the same time he is in no case authorized to use more force than may be reasonable under the circumstances, or to resort to blows or other violence where the object may be attained by summoning a guard and causing the arrest or confinement of at least the leaders of the outbreak.' Where such ar- rest, &c., has been ordered by an inferior officer or a non-commissioned officer, it will be, further, his duty, according to the terms of the Article, to report forthwith his action to the commanding officer of the person or persons ar- rested. 910 PROOF — DEFEHCE. In proving either of the two specific offences, it should properly be made to appear that the accused heard and un- derstood the order, and knew that the person giving it was a commissioned, (or a non-commissioned,) officer of the army. A defence, interposed by the accused, that he had not such understanding or Imowledge may receive support from the fact. If such be the case, that the officer was not in uniform, and belonged to another regiment, &c., of the command. As indicated by Hough," it is no sufficient defence that the accused finally did comply with the order given, provided he first refused to obey it or resisted the officer. PTJITISHUEIfT. The fact, however, of the ultimate compliance with the order wiU, if voluntary, properly be admissible in evidence as going to the measure of the punishment, this being left discretionary with the court. So will any other fact tending to extenuate the culpability of the accused, — as that, in defying or resisting the order, he was only acting in combination with or at the instigation of his superiors in rank. • Samuel, 400 ; Hough, 203 ; Simmons S 367 ; Griffiths, 25 ; O'Brien, 107. And see Chapter IX, pp. X60-iei. The leading Engllsb case under this Article Is that of Lieut. Col. Hoe, who was placed in arrest by a Captain of his regiment for disorderly conduct on duty resulting from drunkenness. James, 839 ; Simmons § 357 ; Hough, (P.) 123. It may be noted that the power Implies a d«<». Thus Tytler, (p. 198,) observes that an officer who stands by and witnesses an affray or disorder without exerting the authority conveyed by the Article, " must be considered as aiding and abetting the principal offenders." ' The force to be employed In quelling an affray or maintaining the peace Is that only which Is necessary to secure and subdue the offenders. It • • • must be such force as Is preventive In its character, and must not exceed the strict necessity of the case requiring such acta of prevention, G. 0. * of 1843. [J. C. Spencer, Sec. of War.] 'Fage 204. 590 MILITABY LAW AND PBBCEDBNTS. Xil THE TWENTY-FIFTH, TWENTY-SIXTH, TWENTY-SEVBJNTH, AND TWENTY-EIGHTH AKTIOLBS. [Challenges to Duels, &c.] " Art. 25. Tfo officer or soldier shall use any reproachful or provoiclng speeches or gestures to another. Any officer who so offends shall be put in arrest. Any soldier who so offends shall be confined, and required to ask pardon of the party offended, in the presence of Ms commanding officer. "Abt. 26. No officer or soldier shall send a challenge to another officer or sol- dier to fight a duel, or accept a challenge so sent. Any officer who so offends shall be dismissed from the service. Any soldier who so offends shall suffer such punishment as a court-martial may direct. " Abt. 27. Any officer or non-commissioned officer, commanding a guard, who, knoujingly and willingly, suffers any person to go forth' to fight a duel, shaU be punished as a challenger; and all seconds or promoters of duels, and 911 carriers of challenges to fight duels, shall be deemed principals, and punished accordingly. It shall be the duty of amy 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. " Abt. 28. Any officer or soldier who upbraids another officer or soldier for refusing a challenge shall himself be punished as a challenger; and all officers amd soldiers are hereby discharged from any disgrace or opinion of disadvan- tage which might arise from their having refused to accept challenges, as they uHU only have acted in obedience to the law, and ha/oe done their duty as good soldiers, who subject themselves to discipline." TWENTT-FHTH AbTIOLE, ORIGIN. The proper original of this Artide, as also of Arts. 24, 26, 27 and 28, is the comprehensive and Important Art. 34 of the Code of James II, of which some of the provisions were clearly derived from Art. 84 of Gustavus Adolphus, through Intermediate Articles of 1639 and 1642. ITS PURPOSE AND EFFECT. The 11th Article of the code of 1775, In prohibiting the sending Of challenges and fighting of duels, Is prefaced with the brief, injunction that — " no officer or soldier shall use any reproachful or provoking speeches or gestures to another." The succeeding code of 1776 formed this injunction into a separate Article substantially as it has since re- mained.' Its main object, as indicated by its Origin, evidently Is to check such manifestations of a hostile temper as, by inducing retaliation, might lead to duels or other disorders. The Article does not contemplate a judicial In- vestigation, but is a rule of discipline confined to measures of prevention and restraint." In practice, however, the provision enjoining the asking of 912 pardon by soldiers Is rarely, if ever, resorted to ; " the course pursued with regard either to officers or soldiers, who may be culpable as Indl- •The Committee on Military Affairs of the House of Eepresentatlves, having con- sidered a resolution directing them to inquire into the expediency of providing by law for the more eftectual preventing of duelling In the army, reported, April 11, 1820, that it considered " the existing law," (reciting the substance of these Articles,) " as amply sufficient, it executed, to repress duelling In the army." "See, as to the legal significance of this Article, Samuel. 851-2 372-6 • Houeh 175-7; O'Brien, 100. ' ''^^» ""e . " Samuel, (p. 373,) refers to it as " an inoperative letter." MILITARY LAW AND PRECEDENTS. 591 cated In the first clause, being to place them in arrest and prefer charges with a view to trial — as In any other case of offence. If Indeed the proceeding specified in the Article Is pursued, and the ofCender, having been afforded a locus pcenitentite by being placed in arrest, presently tenders an apology or makes other suitable amends, and is thereupon released, without further action, by the commanding officer, he cannot in general prop- erly be brought to trial at a subsequent period. Samuel " cites the case of Oapt. Burdett, in which the accused was acquitted because it " appeared in the course of the evidence " that his offence had beenj)reviously thus atoned for under the corresponding British article. Twenty-sixth Abticlb. FUSFOSE OP ARTS. 26-28. This Article and the two following aim at pre- venting duelling in the army, by rendering liable to Immediate arrest, trial and severe punishment, all military persons without distinction, who send or accept challenges, act as seconds, knowingly carry challenges or acceptances, or otherwise promote duels, as well as commanders of guards who neglect to stop parties going out to fight duels, and even persons who upbraid others with refusing to accept challenges." 913 THE COMMON LAW ON THE SUBJECT OF DITELS AND CHAL- LENGES. The practice of duelling, " grounded," as Lord Bacon ex- presses it," " upon a false conceit of honor," or, as described by Tytler, '" " ypon mistaken sentiments of honor, and supported by false shame," is, with the "Page 376. " It Is noticeable that the specific offence of fighting a duel is not in terms mentioned In our code, and could in general therefore only be charged as a disorder or breach of discipline under the 62d Article. But this offence, and those speci'flcally made punishable In Arts. 26-28, are now of rare occurrence, though ones' not unfrequent in the army. The author of the " Mili- tary Law of England," published in 1810, in referring to the practice of duelling in the British army, writes :—" There are cases in which, notwithstanding the explicit declarations of the writtten law, the custom of the service would seen to demand a ref- erence to arms." So lately also as in 1828, McNaghten, while condemning duelling on principle, adds, (p. 237,) that he " must pronounce It an indispensable custom, things being constituted as they are at present." And he refers to " three of the first officers " then in the army — " the DuKe of York, the Marquis of Hastings' and the Marquis of Londonderry " — as having " been concerned as principals or seconds in duels and allowed to. go unscathed.*' In the next year the Duke of Wellington added himself to this list by his duel with the Earl of Wlnchelsea. In James' Precedents there are re- ported fifty cases of officers of the army tried for engaging in duels, sending challenges, or otherwise promoting such proceedings. And see cases in Millingen's History of Duelling, vol. II. The instaiices in our military service have been much less numerous. The principal duels fought during the Revolutionary War were those between General Gates and Colonel Wilkins and between General Cadwalader and Thos. Conroy— in 1778. Other cases are recorded by Thacher, (Military Journal,) pp. 145, 156, 162, 204, 298 ; Heath, (Memoirs,) p. 331. In the " History of the Post of Madison Bar- racks New Tork " several duels are mentioned as having been fought between officers, mostly of the 2d Infantry, in 1816-1832. Of cases brought to trial by court-martial, in our army, nearly all will be found published in the following Orders-G O. of May 22, 1814; Do. of Sept. 29, 1817; Do. 39, 41, of 1835; Do. 2 of 1858; Do. 330 of 1863; Do 11. Irmy of the Potimac, 1861; Do. 46, Dept. of the Gulf, 1863; Do. 223, Dept of the Mo., 1864; Do. 48, Id., 1870; Do. 130, Id., 1872; Do. 33, Dept and Army of the Tenn., 1864 ; Do. 13, Northern Dept., 1865. In » more recent case, in G. C. M. O. 22 of 1879, of an alleged challenging, the accused was acquitted. See, further, case of three Lieutenants of the Confederate army, convicted of sending, carrying and ac- cepting a challenge, in G. G. 139, A. & I. G. O., Elchmond, 1863. "2 Howell, S. T., 1037. "Page 192. 592 MILITAEY LAW AND PKBCEDENTS. incidental oCences of sending a challenge, acting as second, &c., denounced as criminal, alike by the common law and by statute." By the common law, the taking of life in a duel is murder in the killer," whatever may have been the occasion or provocation of the fight and notwithstanding the absence of 914 actual homicidal intent." So is it also murder in the seconds of both parties," and others who are present abetting the act;" all such persons being treated as principals equally with the one who fires the fatal shot." At common law also the mere challenging of a person to fight a duel, though none be fought, is held to be a high misdemeanor as an act tending to a serious breach of the peace." So carriers of. challenges, (knowingly such,) and other promoters of duels as well as provokers of the same, are held indictable for misdemeanor at common law." CIVIL STATUTE LAW. In this country, the offences of killing in a duel, of fighting duels, of sending, conveying and accepting challenges, and of seconding, promoting, or prompting challenge^, are denounced by special statute In a considerable proportion of the States, and " specific and graduated punishments " assigned to the guilty parties." "See 2 Wharton, C. L. i 1767, 1768, as to the origin of duelling and the growth of the law on the subject. " " Wherever two persons in cool blood meet and fight on a precedent quarrel and one of them is killed, the other Is guilty of murder." 1 Hawkins, c. 31, s. 21. " De- liberate duelling, if death ensueth, is, in the eye of the law, murder." Foster. 297. And see 1 Hale, 452 ; 4 Black. Com., 199 ; Taverner's Case, 3 Bulst., 171 ; Reglna v. Young, 8 C. & P., 644 ; Wharton, C. L. 482, 1768 ; 2 Bishop, C. L. ; 311 ; State v. Underwood, 57 Mo., 4(K " It is no defense that the party killed was the challenger, or thfe aggressor ; or that the party Indicted " meant not to kill but only to disarm his adversary." 1 Hawking, c. 31, 8. 21 ; 1 Hale, 443; 1 Russell, 527; Taverner's Case, ante; King v. Rice, 3 East, 681 ; Com. v. Hooper, Thach., 404. » " The seconds also are equally guilty." Regina v. Young, ante. And see 1 Haw- kins, c. 31, s. 31 ; 1 Russell, 529 ; Wharton, C. L. § 1768 ; 2 Bishop, C. L. J 311 ; Regina v. Cuddy, 1 C. & K., 210'; Do. v. Barronet, Dears., 51. In the last case It was held to be no defence that the duel was a " fair " one. The criminal liability of the second of the deceased is no less than that of the second of the other party. Regina v. Young;, Do. V. Cuddy. """With respect to others" (than the seconds,) "shown to be present, the question Is, did they give their aid and assistance by their countenance and encouragement of the principals in the contest? Mere presence will not be sufficient, but if they sustain the principals either by advice or assistance, or go to the ground for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anthin^ yet if they are present, assisting and encouraging by their presence at the moment when the fatal shot is fired, they are In law guilty of the crime of murder." Regina v. Young. " This extends even to the surgeon." 2 Bishop C L S 311 " Wharton, C. L. 5 1768 ; 2 Bishop, C. L. § 311 ; Hough, 198 ; Smith v. State, i Yerg., 232. And see Regina v. Cuddy, ante; also ease of Ensign McGuire and three other officers convicted of murder for taking part in a fatal duel. James, 545 ; Hough, (P.) " See case, (in James, p. 47,) of Major Armstrong, Indicted for challenging Mai Gen Sir Eyre Coote. " Hawkins, c. 63, s. 3 ; 4 Black. Com., 150 ; 1 Russell, 297 ; Wharton, C L S 1768 1773; 2 Bishop, C. L. i 312. . s xi o, " Wharton, C. L. § 1769. The laws of Ohio contain an Especially clear and com- prehensive statute on the subject of this class of offences. (1 R. S., 412.) The statute for the District of Columbia, (R. S., Dist. of Col., Sees. 1164, 1165,) by which the crime .of killing in a duel is made punishable only by imprisonment in » penitentiary Sde'ofTatToc.^^"'"' *'" ""'"' '^ ""* «" "-«'"'"''» o^ ^''^ '-''«-'-*« «•■»'-• „nn?»h^h,rf "« ""' \ ''"'■''*°" ''™'™* '* **"" "S'"«"S «>' » d"^'. 18 expressly made punisbable by fine and imprisonment, and disqualification for office under the State for five years. (Gen. Stats., „. 160 | 13.) So, in New York. (3 R. S.. 962 ) sarg^ns present at duels are punishable by imprisonment in the State Pr son Burgeons MILITARY LAW AND PRECEDENTS. 593 916 Military offenders will thus In general be amenatole both to mlUtary charges and to criminal Indictment." OFFENCES MADE FTTNISHABLE BY ART. 26. Tnls Article makes pun- ishable the two specific offences oif Sending a challenge and Accepting a chall«ige. SENSING A CHALLENGE — What constitutes a challenge. Wharton" defines a duel to be — " a concerted fight between two persons, with deadly weapons, the object of which Is claimed to be the satisfaction of wounded honor." Its elements thus are, that It must be premeditated and deliberate, as distinguished from a sudden rencontre in warm blood;" must, con template the employment of weapons from the use of which homicide may be expected as a natural and probable consequence ; " and must be resorted to, ostensibly at least, with a view to obtaining amends for some affront which has or Is con- ceived to have Injuriously affected the character or offended the sensibility of the person concerned as a man of honor." A challenge is a written or verbal " demand, request, or invitation to another to unite In such a combat." 916 No particular form of words is necessary to constitute a challenge In law." The intention of the language employed is the material point. Mere bullying or defiant language does not amount to a challenge,;" nor do words con- veying only a willingness to fight or a readiness to accept a challenge from the other party." The communication, taking the whole together, must import an Intention to Invite to a duel the person to whom it is addressed; If it does so. It is a challenge, whatever be the expressions used. The invitation indeed need not be tendered in direct and express terms; it is sufficient If it be conveyed Indirectly and by implication." Written challenges are indeed often phrased In " See Samuel, 403 ; also King v. Elce, 3 East, 581, and other cases, (mentioned In 2 McArthuT, 176, 181 ; Kennedy, 267 ; James, 47, 545 ; and Simmons S ' 835, note,) of military and naval officers subjected to trial before criminal courts, tot taking part in dnels as principals or seconds. "Wharton, C. L. § 1767. "Id., i 1770. " See Id. § 1771 ; Com. v. Hooper, Thach., 405. "See Wharton, C. ^. 8 1772. "Coke, 3 Inst., 158; 1 Hawkins, c. 63, a. 3 ; 4 Black. Com., 150; 2 Bishop, C. L. ! 314 ; Samuel, 384 ; Hough, 183. In State v. Strickland, 2 N. & McC, 181, the court ob- serves that a challenge may be given in an open, public manner, but that this is " very unusual indeed." »"The offence consists in the invitation to fight." State v. Taylor, 1 So. Ca., 108. And see 2 Bishop, C. L. S 314. "Wharton, C. L. § 1771, 1777, 2 Bishop, C. L. § 314, Samuel, 384; O Brlen, 104, P O 2 of 1858 "Com p Hart, 6 J. J. Marsh., 119; Ivey v. State, 12 Ala., 277. " See Com v Tibbs, 1 Dana, 524, Aulger v. People, 34 Ills., 486. Of this character are such expressions as—" I am responsible for my words :" " You know where to find me," &c. "It Is not necessary that the writing should expressly state that a meeting la le- auested with a view to fight, or describe the weapons proposed to be employed. Com. v. Hart, ante. Nor need It refer to che origin of the difficulty between the parties or the matter of the supposed grievance of the challenger. Hough 183. Nor need it Indi- cate the place where the duel is proposed to be fought. 2 Bishop, C. P. I 306. The most common form of challenge commences with a reference to some ground of difference or complaint, demands satisfaction therefor of the party "adf^ssf • »»* refers him to a "friend," (often the bearer of the challenge,) who is declared to be luthori'ed to arrange the usual preliminaries. See tl>e forms In the ^-Jlowing case«: State. «. Cunningham, 2 Speers, 249; Com. v. Rowan 3 Dana ^^^•/^°^J'-J°^-^^-^ 418- State V Gibbons, 1 South, 41; State v. Dupont, 2 McC, 334, Com, «• ^ejy. j* Wh^^ler, C. C., 245 G. O. 330 of 1863. In G. O "'/7/ »' ^'>^3,^ter\ 1 mV of invitation is expressed in the form of a dariny to fight In G p 33, Dept _& Army of the Tenn 1864, the demand for satisfaction, which is, in terms, to fight a duel, ta accompanied ;ith a threat to "brand " the party if he does not accept. 440593 0-42-38 694 MILITAEY LAW AND PEECEDENTS. langoage designed to be ambiguous, and to disguise the meaning of the writer so that he may be enabled to evade the criminal liability attaching to his act." In such cases the construction given to the supposed challenge by the party to whom it is addressed, and the response made or action taken by him 917 upon receiving It, are especially significant as interpreting the true mean- ing of the communication." But the stilted and affected verbiage in which challenges are usually expressed is quite familiar to the courts and the public, and their true object is generally entirely transparent." Where, however, am- biguously or obscurely worded, or containing technical terms, they may be explained by a reference to the so-called duelling code," or by the circum- stances of the controversy and the acts, conversation, correspondence, &c., of the parties, as exhibited in evidence." The sending. The early British Article from which ours was derived charac- terized the offence as the giving or sending of a challenge. The American Article, however, has, from the beginning, employed only the word send, and the present form declares that " no officer or soldier shall send a challenge," &c., and further makes punishable the accepting of a challenge " so sent." It is considered therefore safer to hold that the giving of a challenge, directly and in person, by the challenger himself, (which must be an act of rare occurrence,) Is not an offence included within this Article but one which would properly be charged under Art. 62. The Article forbids the sending of a challenge " to another officer or soldier," and it is clear that the offence Is equally complete whether the challenge be addressed to a superior or an inferior in rank ; it Is also clear that the send- ing of a challenge to a civilian would not be within the Article." 918 The sending may be shown by evidence of a sending by a messenger, whether a second or other person, or by any other reliable and direct mode of transmission, as the mall. Actual delivery or receipt of the challenge need not be established, the offence being complete without it." But the sending, where a receipt is not proved, must be shown to have been such as would pre- sumably have resulted in a delivery. If the mail was resorted to, the prosecu- tion should be prepared to prove that the communication was put into the post office or other proper place of deposit for letters, correctly addressed, and the postage pre-paid if necessary ; for the law will then presume that it was duly forwarded to its destination." It is not necessary to show that the challenge "Samuel, 384, 386. "As challenges are in violation of law, ingenuity is not un- commonly eiercisea to avoid a plain expression of their purpose. But these are artifices to defeat the law which courts of law will never favor." G. O. 2 of 1858 (Col Sum- ner's case.) ■ "See Com. v. Hart; Com. v. Pope, ante; Hough, 183, and note. "When the mean- ng IS so clear as to be intelligible to the party who receives the challenge, it answers its purpose, and is intelligible to the tribunal ^hich tries It" G O 2 of 1858 H^^" ?'^;.!' ^^u ^ ^''««'«'' C. C, 245, where the challenger informed the party addressed that he "considered himself insulted and expected the satisfaction of a gentleman, the Court observe: "Now what does this mean? Everybody knows what it means-- 1 challenge you to fight a duel with me with deadly weapons.'" " State V. Gibbons, 1 South, 51. "2 Bishop, C. P. % 309; Com. v. Hart; Com. v. Pope- Honsh 1S1- n'Rrt«„ mi The admissions and material statements of seconds fre^alsf competent both f^; and nTia^;:r! T.::C:t.!riZ''7.t.Tcfrz Thv'- "^^^ MILITARY LAW AND PRECEDENTS. 595 was either accepted or declined by the person to whom It was sent- The non-acceptance of the chaUenge in no manner exonerates the sender- to the completeness of his offence It is quite immaterial whether or not an offence be committed by the other party. It is equally immaterial to the question of the liability of the accused . whether or not a duel actually ensues upon the challenge. Proof of the sending of a written challenge is in general completed by the production of the writing, with evidence that It is in the handwriting of the accused, or was penned by another at his dictation or request." Where the writing cannot be produced— as where it is in the possession of the opposite party, (who will not exhibit it,) or is lost— proof of its substance will be SUfficlMlt." ACCEPTIBra A CHALLENGE. This offence may be established by proof of an acceptance either oral or written, and either communicated personally or dispatched by a messenger or by some other reasonably certain 919 agency— as the mall. Where the acceptance Is by written missive, the actual delivery of the same need not be shown. Whether a duel re- sulted is immaterial. Where a written acceptance is put in evidence, the same prodf of handwriting, Ac, is to be made as in the instance of a challenge. No form of words is necessary to constitute an acceptance ; the only requisite to legal acceptance being that the language import an intent to accede to the invitation conveyed by the challenge." As In the case of a challenge, parol evidence may be introduced to explain obscure expressions in an alleged writ- ten acceptance, and to determine whether it be an acceptance in law. DEFENCE— PUNISHMENT. The sending or accepting of a challenge be- ing prima facie established, the only defence open to the accused, where the facts are not denied, would appear to be that a criminal intent was wanting— as, for exapiple, that a serious act was not proposed, b\jt that the proceeding was by way of banter or joke." No provocation, however great, can constitute a defence." Circumstances, however, of provocation, may be admitted In evi- dence, as apposite, in a case of an enlisted man, to the question of the proper measure of punishment, and, in a case of an officer, (where the sentence is mandatory,) as material to the action of the reviewing officer in approving, disapproving, mitigating, &c., the penalty of dismissal. Twenty-seventh Abticle. THE CLASS OP OPFENDEBS MADE PUNISHABLE. This Article, con- forming to the common-law doctrine already noticed, makes punishable as princi- pals, i. e. in the same manner as the challenger whose offence Is the subject of the last Article, not only active agents in the matter of challenges and duels, but some who are merely passive also — ^placing them all upon the same plane « Samuel, 383; Hough, 183, n'ote 7; O'Brien, 104. "Coke, 3 Inst., 158. " Com. V. Levy, Wheeler, C. C, 245 ; Hough, 184. " See Com. v. Hooper, Thaeh. ; 400, 407. " See the form of the acceptance in Com. v. Kowan, 3 Dana, 395. "See Com. v. Hart, 6 J. 3. M., 119; Ivey u. State, 12 Ala., 277; Wharton, C. L. i 1771. " Hou^, 184 ; Taverner's Case, 3 Biilst., 171. " The aggravating circumstances under which the challenge was made are no excuse for the offence." G. O. 33, Dept. & Army of the Tenn., 1864. 596 MiLrrABT iaw and precedents. of culpability." The several classes Indicated, and the nature of their 920 ofCences, will be considered in the following order : — 1. Seconds ; 2. Car- riers of challenges; 3. Promoters of duels; 4. Commanders of guards suffering persons to go out to fight duels. SECONDS. That which peculiarly characterizes the second is his acting in a representative capacity for his principal : if a party does not sustaiii this character, he may be a " promoter " but cannot properly be charged as a second. Moreover, to make him a second, sucl; capacity must be, not voluntary and gratuitous merely, but assumed at the instance or request of the principal or with his acquiescence. It need not, however, be directly proved that the principal requested or procured the accused to assist him as second : " the fact that he was named in the challenge as a " friend ; " that he declared him- self to be a second, or performed acts ia that capacity which were accepted as such by the principal ; or that he was viewed and treated with as such, in the arrangements, by the parties and seconds generally, — such facts and circum stances would ordinarily afford a sufficient presumption of his authority and representative capacity in the case. This acting of the second must, to consti- tute the offence, be either at a duel, or with a view to the fighting of one. It is not considered absolutely essential that there should be an actual duel, or, if there be one, that the accused should be present at it. If, in his character of second, he actively participate in making preparations for the duel, as by conveying the challenge or response, conducting the correspondence, arranging the preliminaries in connection with the second of the other party, providing the weapons, &c., he will bring himself within the description of "seconds or promoters of duels," as employed in the Article." Proof. Here, as under the charge of sending a challenge, the admissions and material statements of the principals, as well as of the other second or seconds, having reference to the subject of the duel, wiU be admissible in evidence against (or for) the accused, as illustrating the nature and intent of his 921 acts.** The " duelling code " may also be put in proof, to indicate what acts and service pertain to the functions of a second. Defence. The accused may show in defence that he consented to as- sume the role of second, for the purpose not Of promoting but of preventing a duel by composing the strife or otherwise, and that he acted solely with this object. Or he may show that, having once consented to be second, he presently withdrew without having taken any part in preparing for a hostile meeting. CABRIEBS. By the designation—" carriers of challenges to fight duels," " the Article no doubt mainly contemplates persoHs other than seconds who convey invitations to fight duels from one party to another, though seconds who perform this office are, of course, chargeable as carriers. To constitute the offence of the carrier, the carrying must be performed knowingly, i. e., the accused must know that the message Is a challenge to "Samuel, 3877 390. And see O'Brien, 105. n See Case ot Lieut. Ivers, tried for requiring a non-commlssloned officer to attend him as a second. James, 227. "Compare Com. v. Boott, Thach., 394 "Wharton C. L., § 1778; 2 Bishop, C. P. | 308; Com. v. Boott, Thach., 392-3. .S \ '!■ "°*"^*f"« ^^* «»"**» of "eePtance is made punishable m the same manner as the carrying of a challenge. (E. S., Dlst. CoL. MILIIAEY LAW AND PEECEDKWTS. 597 fight a duel." If the challenge is verbal, he can Indeed scarcely but know Its nature; it is therefore mostly in thp case of written challenges that specific proof of knowledge is required to be produced. In proving knowledge, It is not necessary to show that the accused was informed of the character or con- tents of the paper by the sender : he may learn of it from other persons ; from having himself been preset at the quarrel of the parties, or been acquainted with the circumstances of their difference or of their personal relations ; from common report ; or even from the manner and tone of the sender provided these were so significant that they could not reasonably be misunderstood." It is only essential that the carrier should have the knowledge before the carriage be completed. 922 The ofEence is consummated by the delivery of the challenge. We have seen that the offence of the challenger is completed upon his putting the challenge in the way of being delivered, whether it be actually delivered or not. But the carrier, to become amenable to the Article, must actually de- liver the challenge, for until he does so there is a locus paenitentiw, and, if he repents himself of his askumed mission before it is fully performed, there is no carriage and hie is not chargeable. It may be added that it is not abso- lutely necessary that there should be a delivery to the. party in person: if, in his absence, the challenge, be delivered, for him, to some person through whom it is reasonable to suppose that it will duly presently come into his hands, the carriage will be complete in law." FBOMOTEBS OF DUELS. This is a general designation, including any per- son who, by stimulating the resentments of another, or by appeals to his pride, shame, sense of "honor" so called, or otherwise, (and whether by direct and pointed means or by covert insinuation,) purposely incites him to tender or to accept a challenge,? or, in any way, other than by acting as a second, or the carrier of a challenge, designedly furthers or contributes to the fighting of the duel. Promoters are thus distinguished from seconds and such carriers; for though these are in effect promoters of duels, (and might, without material error, be charged as such,") they have at the same time a distinct and 923 specific role, while that of the promoter proper is more general and not confined to any particular act or province. Carriers of acceptances are clearly promoters and so chargeable. " " Otherwise," observes Samuel, " he might be as little culpable as an ordinary letter carrier, who cannot be presumed to understand the contents of the correspondence that passes, almost mechanically, through his hands." And see Hough, 199, 200; O'Brien, 107 ; U. S. V. Shackelford, 3 CranCh C, 178. ""See Hough, 200. "See Hough, 184. " The term promoters " applies to parties who, whether concerned or not in the matter of dispute, take any share in urging or provoking those implicated in it to send to one or the other a defiance to the field." Samuel, 394. This writer adds :— " The meddling and mischievous spirit which IS ready to mingle Itself in the misunderstandings and quarrels of others, is as often prejudicial to the best Interests of society as the bad passions of individuals Immediately and prlncipallly engaged." And see, further, pp. 394-5 a curious recital by the author of the forms in which such spirit may "Inter- pose itself." See also the case of Lieut. Dillon and others. (Samuel, 396; Hough 190; James 545,) of whom it Is said In the General Order of publication that— "Their interference was equally uncalled for and 'unnecessary, and tended, not, as might have been expected, to settle the trivial difference which existed between their brother officers, but to magnify its Importance and to instigate them to the measure which has led to so fatal a result." And see other cases of instigating and promoting. In James, 397 437 "Note' the forms ol charge in G. C. M. O. VM, Uept. of the Mo.. 1872. 598 MILITAKY LAW ASD PRECEDENTS* As It Is not necessary, to complete the offence of the second or the earriw, that a duel should actually transpire; so, It is not deemed absolutely essential to the offence of the promoter that there should ensue a hostile meeting, or even that a challenge should pass between the parties. While there will ordinarily have been either a duel, or a formal challenging, where a case of promoting presents itself calling for a specific charge under this Article," all that is requisite is that the acts of the alleged promoter should have been done with the intention to induce or aid in inducing a duel, and should have had a direct tendency to induce one. The Intent" — where it exists — will in general be sufiiciently presumable from the acts themselves without further evidence. CASES IN WHICH ONE OF THE PRINCIPALS IS A CIVILIAN. Such cases, it may be added, (by way of general remark applicable to the offences of the three classes of persons above considered,) are clearly equally within the spirit and letter of the Article as are cases in which both principals are military persons." COMMANDERS OF GTTARDS. The Article further makes punishable " as a challenger, any offlcer or non-commissioned officer, commanding a guard, who, knowingly and willmglyj suffers any person to go forth to fight a duel." The general term " any person " would appear to include civilians as well as military persons," and, among the latter, persons of any grade ; so that a 924 non-commissioned officer or officer of inferior rank would be chargeable under the Article for suffering a superior officer of whatever rank "to go forth," &c. The commander of the guard must not merely forbid the person to go forth from the post, station, &c., but stop him, and by force if necessary : " if he neglects to do so, he commits the offence here designated. To com- plete the criminal act or omission the accused must know that the intent of the person. In going forth, is to fight a duel. The source of the knowledge is immaterial: "it is not necessary that the party should be seen to pass the guard."" If therefore the accused is shown to have received from reliable persons specific and timely information of an intended goiilg forth, which was in fact effected, and which he made no proper attempt to stop or prevent, he will justly be considered to have had the requisite knowledge, and be held amenable to trial under the Article, provided the locality of the going forth was within the lines of his guard or command. THE DUTY IMPOSED BY THE LAST CLAUSE OF THE ARTICLE. The injunction with which the Article concludes is, in substance, only declatory of the duty incumbent upon commanders in general to arrest and bring to trial military offenders. From the use, however, of the word "immediately" It is evident that the design of the provision was to impress this obligation with especial emphasis, and to make it imperative upon commanders to check at the outset any scheme or combination l ooking to a duel by the prompt ap- " In the only precedent which the author has found of promoting chareed SDeelflcallv m„T«''r4"^^''"^''°''"*'" of second.ng,_that publlshedTn « O. 22TDept of the tte 'same '^er "" " ' ^"*'' *"* '"'' "' ""* P^'='P»1« "^^-^ promulgated In "That this intent is the gist of the offence, see State v. Gibbons, 1 South 49 And compare the analogous cases of the common-law misdemeanor of endeavoring to provoke another to send a challenge, referred to In 1 Russell, 297. The promoting of * I^t\Tks^^pr:mttf;l:freZuenr^^^^ «^« --"^ '>-"^»"«>» »* the " See O'Brien, 106. "Samuel, 388; Hough, 197; Id., (P.), 264; O'Brien. 106 -Hough, 197; Id., (P.), 264. "Hough, (P.) 265. MILITAEY LAW AND PRECEDENTS. 599' prehension and prosecution of the principal offenders. A commander, there- fore, will properly perform his duty under the Article by placing under arrest without delay the party or parties concerned, and, where he is not himself em- powered to convene a suitable court for their trial, by preferring charges against them for a violation of the 26th Article, and forwarding the same to the proper superior :~ for the latter it will remain to order a court as soon as practicable. Twenty-eighth Aeticlb. OBJECT AND EFFECT. The object of this Article, (which repeats 925 almost word for word a provision of the Code of James II,) is to "pro- tiect and save the honor of officers and soldiers, who shall have the courage to refuse the acceptance of challenges, from every species of reproach which might attend the refusal ; " " and, as a most effective means of attaining this object, it punishes with dismissal any one who " upbraids " — t. e. re- proaches, censures, inveighs against, stigmatizes — another for not entertaining an invitation to fight a duel. The most familiar form indeed of upbraiding at the period of the adoption of the Article was " posting " as a coward, by means of a written or printed public notice," — an ofEence still made punishable in the statutes especially of the older States. Thus, in the laws of Massachusetts," it Is prpvlded that — " Whoever posts another, or in writing or print uses any reproachful or contemptuous language to or concerning another, for not fighting _a duel, or for not sending or accepting a challenge, shall be punished by im- prisonment," &c. It Is quite clear, however, that the upbraiding intended by the Article need not be in writing, but may be oral as well." The ofEence committed is moreover equally within the Article whether the upbraider is the original challenger himself or some other person. An instance of upbraiding by the former is that charged in the case of Col. Sumner," where the officer who had tendered the challenge is alleged to. have addressed the other party in the following terms : — " Sir : I received with great surprise your note of last evening, and have only to say to you that a man who could insult a brother officer from an official covert, and afterwards refuse to apologize, or to give him that satisfaction which he had a right to demand, is utterly 926 unworthy of any farther notice from me." This case also illustrates the point that, under the general provision of the Article, the upbraiding may be conveyed in a private communication as well as expressed In some pub- lic manner. FSOOF. If the upbraiding was contained in a written communication, the same should be set out in full or in substance in the charge," and proved by showing either that it is in the handwriting of th e accused, or was written for » slT\he precedent of Indictment for the offence of posting in 3 CWtty, O. L., 853; A pointed Instance, in our military history, of posting, was that, In 1808 of Jolm Randolph by Brig. Gen. Wilkinson, who, when Randolph, after hav ng uniustly assailed him in Coiess, refused to accept his challenge, posted him as a "prevaricating base calnmnlousTcoundrel and coward." The leading case tried by ^-^XseThlm ^satis Aat Surg. Todsen, who was convicted of posting a captain, who had refused him satis- '"-'^L:! Sl^ts Vm'ss Ti6o'; 14: V!:L''Zn.r statue of New Xork_3 Kev. Sts.^?rilsol"t of confess Of Feb. 20, 1839. relating to the District of Columbla- ^■.4e°cLt G.'c m' a 48, Dept. of the Mo.. 1870; also Lieut. Wood's case, .a^es. 762. , " G. O. 2 of 1858. And see Lieut. Wood's case, ant«, n See precedent In 3 Chltty, C. L., 853, 600 MILITABY LAW AND PRECEDENTS. him and at his instance. Where It Is thus connected with the accused as his personal act, It will not be necessary to prove the actual receipt of the com- munication by the party upbraided; it will be sufficient to show, as in the case of sending a written challenge, that the accused duly put it in the way of being properly forwarded to and received by such party. XIII. THE TWENTT-NINTH AND THIRTIETH ARTICLES. [Redress of Wrongs In Regiments, &c.] " Aet. 29. Any officer who thinks himself wronged by the commanding officer of his regiment, and upon due application to such commander, is refused re- dress, may complain to the general commanding in the State or Territory where such regiment is stationed. The general shall examine into said com- plaint 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 state- ment of such complaint, with the proceedings had thereon. " Abt. 30. Any soldier who thinks himself wronged by any officer may com- plain to the commanding officer of his regiment, who shall summon a regi- mental court-martial for the doing of justice to the complainant. Either party may appeal from such regimental court-martial to a general court-martial; bfit if, upon such second hearing, the appeal appears to be groundless and vex- atious, the party appealing shall be punished at the discretion of said general court-martial." TWENTT-NINTH AeTICLE. CONSTBtJCTION. This is an antiquated provision," now of but slight sig- nificance, and may be very briefly treated. 927 "Wronged." This undefined but general term is interpreted as In- cluding any and all injuries or grievances that niay be done or caused by a superior to an inferior officer in his military capacity or relation, and that are, at the same time, properly susceptible of being remedied toithout a resort to a trial by court-martial. Clode " expresses the opinion. In regard to the corresponding British Article, that its object Is to provide for the " settle- ment of professional disputes;" and Hough," that it relates to "matters of a professional or private nature." A more specific construction would be that the wrongs contemplated are mainly denials of rights or just privileges, or other arbitrary proceedings in contravention of military usage. " By the commanding officer of his regiment." This description has been persistently retained from the original code, while in the corresponding British Article the more comprehensive term, "his commanding oflJcer," was after a time substituted. De Hart" was of opinion that our own Article should be held to apply to cases of wrongs received from any superior officer ; that being a remedial statute It might properly be thus freely construed. But while such a statute is to be liberally interpreted as to Its general provisions, Its specific terms cannot be extended beyond their distinctive Import; and the present Article, being expressly confined to cases of wrongs on the part of regimental commanders, must be held to have no wider or other applicatiop. It would not therefore authorize a compla int on account of a wrong done by a post " See Art. 57 of the Code of James II. "M. r.., 79. "Page 229. "Pages 78, 253. MILITAEY LAW AND PKECEDENTS. 601 commander who was not also regimental commander.. The Article however merely indicates h. routine of action, which may be, and in practice is, sub- stantially pursued in cases of complaints in general, with the difference only that it is commonly simplified by a more direct form of communication. PBOCEDTJBE TTNDEB THE ARTICLE. This is in brief as follows. The aggrieved officer having first specifically applied in writing for redress to the regimental commander, and been refused, or granted but partial relief, com- plains by way of appeal. In writing, to the general commanding, (com- 928 monly the department commander,) setting forth the facts of the case, and stating the substance of the original application and its result. This complaint is properly transmitted through the regimental commander, who makes such endorsement thereon, or communication therewith, as he may deem desirable, and the general is thus possessed ot both sides of the controversy. If the regimental commander declines or unreasonably delays to forward the appeal, the officer Is authorized to transmit it directly. Either the complainant or the regimental commander may accompany his statement by affidavits or statements of other persons, or by documentary or other written evidence. The general will examine the statements, &c., and consider the arguments, and. If he concludes that a wrong has been done, will proceed to redress the same, so far as it may be authorized and practicable for him to do so, issuing for the purpose the proper order or orders; and will thereupon render to the War De- partment the report indicated in the Article. If not empowered himself to afCord redress, he will properly, in his report, favorably commend the claim to the Secretary of War. On the other hand, If he considers that no wrong was done by the regimental commander, he will formally disallow the complaint, leaving the officer, if not satisfied, to appeal to higher authority." A regimental officer, It Is to be remarked. Is not required to pursue the routine outlined in this Article. Like any other officer, who has been refused redress for a supposed grievance by his commanding officer, he may address an appeal through the proper channels directly to the Secretary of War, by whom It will commonly be referred to the chief of one of the staff corps, or to the division or department commander, &c., for report, and In due course disposCed of. This is the more usual form of proceeding, the Article, as such, being rarely availed of. Thirtieth Aeticle. AN INADEQUATE PROVISION. This Article, which, (dating originally from the code of James II,'') has not been materially modified since 929 1806, is also a provision of comparatively slight value in the co^. It entitles indeed a soldier, "who thinks himself wronged by any officer to a hearing before a court of his regiment, and. If he is not satisfied with the result, to an appeal to a higher court; but the remedy is P':^« "^^^ ^^^f^^ to cases arising in regiments; the courts, so far as relates to the matter of redress are merely Svestigating bodies without defined powers; and the Article falls to Indicate what classes of wrongs they may consider, or what auaorltTmay be exercised by commanders In carrying out their conclusions MoT^v fr. the effect of t he threat contained hi the last clause of the Article .on tie general su^ect o^ - ^.--t o^^^^^^^^ De Hart. 78, 2S3-6 ; Ben«, 170-2 ; G. O. 1 of X858. » gee Arts. 50 and 51 of tbat Code. 602 MILITAKY LAW AND PKECEDENTS. must rather be to difecourage soldiers from seeking relief under It. It has thus been found inadequate In practice, and Is comparatively rarely availed of. Rather than resort to the cumbrous and precarious proceedings which It provides, enlisted men prefer in general to address their claims, through the proper channels, to t*e Department Commander or Secretary of "War, for authoritative and final adjustment. COWSTBTJCTION — " Who thinks himself wronged." In the absence of any definition of this term iu the Article, the authorities have construed it as referring mainly to such wrongs as result from mistake of fact, misappre- hension of law, or want of judgment on the part of the officer in regard to some matter connected with the " internal economy," as Samuel " expresses it, of the command. Errors in the accounts of the soldier, as in denying to him a right to pay or to an allowance, pecuniary or othei-wise, to which he is en- titled, or in entering stoppages against him' to which he should not be sub- jected, are held to be peculiarly of the class of "wrongs" for which redress is intended to be here afforded.™ So, such grievances as the imposition of un- reasonable arrest," the assigning of improper, duties, the enjoining of excessive work or service, the withholding of customary privileges, may, it is believed, sometimes be sought to be remedied by this proceeding, where the fault of the officer consists in a misapprehension of facts or lack of discretion rather than in an intention to injure or oppress. 930 But where the act of the officer, as complained of, amounts clearly to a specific military offence, it cannot in general properly become the basis of a complaint under this Article. The regimental court here authorized can neither try nor punish; and in. assuming to pass judicially upon a military offence, it would be transcending altogether its province."" The Article is also held to Include only grievances which are personal to the soldier, and therefore not such acts as merely affect discipline in general;" and further, and especially, to contemplate such wrongs only as are susceptible of being specifically redressed by the regimental commander, in the due course of military adminrstration." Thus a wrong consisting in the denial of a sub- stantial right which may be restored as such, or in the imposition of a liability which may be specifically done away with, would be within the purview of the Article: otherwise, where it consists in an injury which is not practicable to undo, and for which no satisfaction can be afforded other than the moral satisfaction experienced from the infliction of a punishment upon the offender. " By any officer." While this general term may be held to Include officers of whatever rank, and whether or not of the same company or regiment as the "Page 504. «» Hough, 230; G. 0. 13 of 1843; Macomb 90; O'Brien, 127; DeHart 258 " G. O. 13 of 1843 ; O'Brien, 127, 129. " See Adye, 105 ; Tytler, 336 ; Samuel, 505-6 ; Simmons § 342 ; Macomb, 90 • O'Brien, 123, 128, 129, 287 ; Maltby, 133 ; De Hart, 257, 265 ; 6. O. 13 of 1843 ; 1 Opins. At. Gen., 167. Simmons writes: "It would not be competent to a regimental court, thus summoned, to enter upon an inquiry as to a charge of tyranny and oppression, or HI treatment, brought forward against the captain or officer commanding a company." In the leading case, in our law, ol Private Delap, (G. O. 13 of 1843.) the Secretary of War expressly held that a striking of a soldier by an officer was not of the class of wrongs which could properly be made the subject of a complaint under the present article. The action in Flynn's case, (G. O. 5, Hdqrs. 13th Infy., 1874,) where such a striking was investigated by a regimental court under this Article, (though supported by an early case in G. O. 5 of 1827,) must thus be regarded as erroneous " See Samuel, 504-5 ; O'Brien, 123. « " It is evidently a personal wrong of such a nature as Is capable of redress that the Article has In view." Samuel, 505. And see O'Brien, 123. MILITABY LAW AND PRECEDENTS. 603 complainant, It Is to be gathered from the history" and text of the 931 Article that it was therein contemplated- that it would be mainly, the acts of cmipany officers and especially company commanders for which re- dress would be sought. It would seem indeed that the officer, equally as the complainant, should be within the command of the regimental commander since otherwise the latter could not give effect to a specific recommendation made by the regimental court. It need scarcely be remarked that the " officer " must be in the army,—i. e., must not have resigned, been dismissed, &c.,— at the time the complaint is presented and heard ; otherwise it cannot be entertained. " May complain to thetween the captain and his men." And see I Opins. At. Gen., 167 ; Maitby, 134 ; De Hart, 258. In the British Articles a regimental court of inquiry was substituted for the regimental court-martial, in 1860. Simmons § •341 : as to the present law, see Army Act § 43, 604 MILITARY LAW AND PRECEDENTS. Dlainanf In the absence, therefore, of any indication in the Article as to the form of the doing of justice by the court, It is clear that it can, regularly con- sist only m the expression of an opinion to the efEect that the complaint is sustained and that the wrong complained of should be redressed in a certain mode specified, or-on the other hand-that the complaint is not sustained and no substantial wrong has been sufCered." This conclusion being duly approved by the regimental commander, and neither party appealing, the proper orders for effectuating such conclusion are issued b1/ the commander and "justice" is thus done In the case." 933 " Either party may appeal," &c. It is agreed by the authorities that an absolute right of appeal is here conveyed; that either party not acquiescing in the determination of the court is entitled to have ordered a further hearing by a general court-martial." No time being specified within which the right shall be asserted, the general rule of reasonableness is to be applied! and an appeal not claimed within a reasonable time may in gaieral be regarded as ■MXiived." « Upon such second hearing." The term " hearing " is well employed, since the proceeding before the general court is no more a trial in the legal sense of the word than that which has taken place before the regimental court, but is simply a re-presentation of the case before a body of superior degree and numbers. The details of the hearing and the action of the court thereon will be referred to under the head of the " Procedure." "If • ♦ • the appeal appears to be groundless and vexatious, the party appealing shall be punished at the discretion of said general court- martial." A "groundless" appeal may be said to be one without any sub- stantial foundation: if an appeal have any material reason or merit, how- ever slight, it cannot be said to be groundless. A " vexatious " appeal would be one characterized by a malevolent or litigious spirit, or taken with the intent of annoying the opposite party or delaying the redress due him, or one so entirely without probable cause or reasonable ground that to persist 934 in the proceeding can result in nothing but embarrassment and trouble to the adversary and to the military authorities." " " The court arc armed with no authority to award the restitution of any rights of which the Individual has been deprived." Hough, 2|il. And see Maltby, 133. »See Samuel, 505; Tytler, 336; Simmons ! 342;'Maoomb, 87, 90; O'Brien, 123; De Hart, 265. ■° " The colonel or commanding officer, who appoints the regimental court, will have to see. If he approves the same, that the decision be carried ^into execution." Samuel, 506. " It will then be the duty of the commanding officer of the regiment to see the restitution of the rights of the party complaining, or Justice done him." Hoitgh, 240. And see O'Brien, 128; De Hart, 265. " " Either party has an absolute right of appeal." De Hart, 265. And see O'Brien, 286 : Maltby, 135 ; Macomb, 89 ; Tytler, 335. Note also, In this connection, the re- marks of Gen. Augur, In G. C. M. O. 60, Dept. of the Mo., 1884, as follows : — " The right of appeal from an Immediate commander to a superior one Is the right of every officer or soldier In the Army, and ought to be maintained untrammelled by fear of any resentment on the pttrt of the officer whose acts or decisions are thus either ex- pressly or impliedly questioned. To throw any impediment in the way of such appeal or to visit its exercise with confinement or threat of punishment, in the opinion of the Commanding General, does violence alike to discipline, justice and good, order In the Army." •"'•Though no period Is laid down within which an appeal should be made. It la clear that it ought to be brought as soon after the publication of the regimental court- martial as possible; for some of the witnesses may die, or be absent, and thus, In some cases, render the trial impracticable." Hough (P.) 770. •■ The mere fact that an appeal has not been successful will not properly render the party amenable to punishment, since he may have proceeded honestly and in good faith, or Tiave failed only because of the absence of material testimony, See Samuel B07-9 ; Hough, 241 ; O'Brien, 124 ; De Hart, 266. MILITARY LAW AND PRECEDENTS, 605 Even in awarding the punishment authorized by the Article, the court does not exercise the power of sentence as upon a trial. The authority employed rather resembles "that resorted to by judicial tribunals for the punishment of contempts, ana ^the appropriate penalty will therefore in general be — to be reprimanded or to make an apology, or, in a graver case, to be confined or to forfeit pay, or both, for a limited period. PBOCEDURE. The procedure under the Article may be briefly described as follows : The soldier addresses his complaint in writing, preferably through his company commander, to the regimental commander, setting forth the particulars of his grievance or grievances. It is the sentiment of the authorities that where several soldiers have the same grievance, they should not be permitted to combine in a joint complaint," since to allow this would be to encourage a mutinous or insubordinate feeling, but that separate and individual complaints only should be entertained.* Upon the receipt of the communication, the com- mander convenes the regimental court, stating in the order the purpose for which it is assembled. No arrest is made of the officer whose act is com- plained of." Both parties appear — or may appear if they see fit; their pres- ence is not absolutely necessary — ^before the court, (vrtth counsel if desired,) and both are permitted to exercise the righJ: of challenge through the judge advocate." The complainant produces his witnesses or other testimony, and the officer, if he sees fit, follows with a defence or explanation and proofs. Either parity may be sworn and testify if he desires. Each has the same 935 right of cross-examination as at a trial. Each may present a closing statement or arg^ument. The court then clears, deliberates, and frames Its conclusion to the effect that the complaint either is or is not substanti- ated, with a further designation — ^if it be held sustained— of the particular form of relief which, in the opinion of the court, should be extended. The pro- ceedings are then reported to the regimental commander, who, if he approve the same— as he can scarcely faU to do if they are legal and reasonable- will, issue the proper order for carrying into effect the determination of the court" If an appeal be taken, the appellant applies through the regular channels to the department or other proper commander for a general court-martial, which Is thereupon ordered (and composed of new officers,") and before which the proceedings are similar to those before the regimental court, except that. If the officer be the appellant, he now takes the initiative, is first heard, &c. The investigation is now pursued de novo, and upon independent testimony. The evidence introduced may be the same as or different from that introduced at the first hearing, but it is now offered as original and precisely as if it had riot been before presented. By the consent of parties, indeed, the record of testimony received by the regimental court may be admitted before the gen- eral court; but the latter court considers the evidence and makes up its ""As by signing a round robin, or any other paper, stating a general complaint." °«Te; Samuel, 504; Simmons J 372; Hough, 240; O-Brlen, 123 ;De Hart 267 -irch action at tkis stage would be "Irregular and premature." 1 Oplns. At. Gen.. ^^wTToiirt rp 1 763 • Hughes, 106 ; De Hart, 289 ; Copp«e, 92-3. S^raltTgereraTS ^ ^1' ^u\e.,na... the specie redress in- dicated by the court should be fo^^^' „.„ii„iy subject to challenge. That it Is -The members of the ^'^'^''"'^ .'ZZrot^geneZ court that he was a member valid ground for challenging a m^™"" °' *^ J*°J^ of the regimental court, ha. been noticed in Chapter XIV. 606 MILITARY LAW AND PEECEHENTS. opinion entirely independently of the action of the regimental court and nn- afCected by it. The opinion is to the effect that the appeal is or is not sus- tained, — ^that the conclusion of the regimental court is either affirmed or over- ruled, — with such additional expression of views as to the merits of the case as may be deemed desirable. If the appeal be found " groundless and vexa- tious," an appropriate punishment is adjudged. The proceedings are then finally acted upon by the commander, and his action is duly promulgated in Orders. An officer or soldier who neglects to abide by or comply with 936 the orders of a regimental or superior commander duly issued for the purpose of effectuating the decision of a regimental or general court as- sembled under the present Article, is liable to charges and trial as an offender against military discipline. For reasons above indicated, it is believed that both these Articles may be dropped from the Code without prejudice to the service. As already remarked, a resort to either as a remedial statute Is most unfrequent In practice. XIV. THE THIRTY-FIRST, THIRTY-SECOND, THIRTY-THIRD, THIRTY- FOURTH, THIRTY-FIFTH, THIRTY-SIXTH, THIRTY- SEVENTH AND FORTIETH ARTICLES. [Unauthorized Absences and other Minor Offences.] " Abt. 31. Any officer or soldier who lies out of his quarters, garrison, or camp, without leave from his superior officer, shall 6e punished as a court- martial may direct. " Art. 32. Any soldier who absents himself from his troop, battery, company, or detachment, toithout leave from his commanding officer, shall be punished as a court-martial may direct. " Abt. 33. Any officer or soldier who fails, except when prevented by sickness or other necessity, to repair, at the fixed time, to the place of parade, exercise, or other rendezvous appointed by Ms commanding officer, or goes from the same, without leave from his commanding officer, before he is dismissed or relieved, shall be punished as a court-martial may direct. "Aet. 34. Any soldier who is found one mile from camp, mthout leave in writing from his commanding officer, shall be punished as a court-martiai may direct. " Aet. 35. Any soldier who fsiils to retire to his quarters or tent at the beat- ing of retreat, shall be punished according to the nature of his offence. "Abt. 36. No soldier belonging to any regiment, troop, battery, or company, shall hire another to do his duty for him, or be excused from duty, except in cases of sickness, disability, or leave of absence. Every such soldier found guilty of hiring his duty, and the person so hired to do another's duty, shall be punished as a court-martial may direct. "Abt. 37. Every non-comm.issioned officer who connives at such hiring 937 of duty shall be reduced. Every officer who Imows and allows such practices shall be punished as a court-martial may direct " "Abt. 40. Any officer or soldier who quits guard, platoon, or division, toithout leave from his superior officer, except in a case of urgent necessity, shall be punished as a court-martial may direct." Thibtt-fiest Abticlb. GENERAL EFFECT AND CONSTRUCTION. The offence particularized LILT"* ?r. '""'"''*^' ^'•"^'^' ("^'^^ ^^ ^^^-^ f 1 Tt 2T Of hi code Of James II.) consists in the unauthorized sleeping or retiring for the MILITARY LAW AND PKECEDENTS. 607 night, (or some considerable portion of the same,) .at a dwelling-house, inn or other lodging or place, situated outside— the distance is immaterial— of the proper Umits of the camp, post, &e., at which the offender is stationed or quartered. The bad example as well as the hazard attending such an offence when ^committed by officers serving with troops in time of war, must be ob- vious."" At any time, it is a species of absenteeism on their part, which if often indulged In, must tend to destroy the rapport which should exist between officer and men, and to loosen the bonds of military discipline. The unsteadying effect of such a practice, if permitted to soldiers, ne.ed not be enlarged upon. Samuel ' refers to It as being an offence—" to the injury of the civil neighbor- hood and the corruption of the morals and discipline of the camp;" and "Hough" observes— "On service, It Is particularly required that all should sleep In their own beds, that they may be easily called out in case of need." The " superior officer," without whose leave the act cannot be ex(*used, will, as a general rule, properly be the commander of the regiment, detachment, post,, &c.* The " leave," to constitute a defence in the case of an officer, 938 need only be a verbal one: in the case of a soldier, it should, in view of the terms of Art. 34, be In writing, where the place at which he is to be allowed to pass the night is distant a mile or more from the camp or quarters. Thibty-second Article, NATTIIIE OP THE OFFENCE. This Article makes punishable the offence of. absence without leave in general, in contradistinction to certain special forms of such absence which are made the subjects of other Articles, and especially Arts. 31, 33, 34 and 40.* Where the absence involves a violation of either of these Articles, a charge under such Article may well be joined with the charge under Art. 32. The absence here contemplated may be one un- authorized ab initio, or one which consists in not duly returning at the ex- piration of a pass or furlough. The Article, it will be observed, refers only to soldiers. Absence without leave by an officer is not made punishable in the code as a specific offence, and is therefore in general to be charged under Art. 62. FKOOF. That the absence was " without leave " should be proved affirma- tively ; it cannot in general properly be presumed from the mere fact of ab- sence.' That the absence was unauthorized should be shown by some witness or witnesses — as the commanding officer, a company officer, a first sergeant, &c. — ^personally cognizant of the fact. The statement of a witness that the '» See the case published In G. 0. 23, Dept. of the Ohio, 1864, of an officer convicted of an aggravated violation of this Article, — in that he " did lie out of quarters, at a distance of four miles more or less from his comnrand, without the knowledge or consent of his commanding officer, at a time when the presence of every officer was required at his post, the enemy bdng supposed to be in close pi'oximity, and did not return until an advanced hour on the following morning, his regiment having marched during his absence." 'Page 544. ■Page 286. And see O'Brien, 93. •See Hough, 286. .... *"The absence without leave contemplated by Art. 32 Is an absence from camp, post, or station. Absence from roU-call Is a mere, neglect of duty, not a technical aiaence Kithoat leave under this Article." G. O. 18, 24. Fifth Mil. DIst. 1868. »In G O 292 of 1863, the Secretary of War, In disapproving certain proceedings, Bays:-"The accused was tried for absence without leave, but there Is no evidence whatever of an unauthorized absence. It not appearing but that he might have ab- sented himself with full authority." 608 MILITARY LAW AND PRECEDENTS. accused was " reported " absent without leave would be hearsay and insnf- fldent. Similarly would an entry on a morning report book or muster-roll, that the soldier was absent without authority at a certain time, be quite in- sufflcieat as legal evidence of the fact, since it would amount to a charge only of the ofCence." 939 DEFENCE. It will be a- good defence that the party, while absent on pass or furlough, was prevented from returning at the proper time by sickness or other disability,' but to establish this excuse medical testimony will generally be required. That the accused was involuntarily detained by the force of the elements, the action of the civil authority, the operations of the enemy, or by being taken prisoner by the latter, may also constitute a vaUd defence;' but where he has once deliberately absented himself without authority, the fact that he was detained away longer than he had intended by some agency beyond his control, wiU be no suflBcient answer to the accusation. PUNISHMENT. The brief unauthorized absences of soldiers are. In time of peace, most commonly referred for trial to Inferior courts by which they are usually visited with a small forfeiture of pay or other light sentence. The offence, however, may be aggravated and thus call for a serious punishment; as, for example, where the absence was long protracted; or where the soldier, in absenting himself, has abandoned an important duty ; or where the offence was committed in time of war, when, in the words of Attorney General Legarg, " the absence falls, in contemplation of law, little short of desertion." * CONSEQITENCES BY OPERATION OP LAW. Upon absence without leave, as upon desertion, there are entailted, by operation of law, certain con- sequences, declared in par. 132 of the Army Regulations," as follows : — "An enlisted man who absents himself from his post or company, without authority, shall forfeit all pay and allowances accruing during such absence, and, upon conviction by court-martial, make good the time lost." " Thibty-thibd Abticlb. EPPECT AND CONSTRUCTION. This Article, In its first clause, en- 940 joins the punctual attendance of officer and soldier at parade, drill, guard. Inspection, roll-calls, muster, or other exercise, duty, or ceremony of the camp or station, as also at any other place at which he may be ordered to report himself as one of a body. The words — " or other rendez- vous," &c., says Hough," " mean any place appointed," by the proper com- mander, " for the assembly of officers, non-commissioned officers, or soldiers for any duty ; " as, for example, the place fixed for recitations by officers," the place appointed for gymnasium practice," the riding-hall at the Military •In a case In G. C. M. O. 10, Dept. of the Platte, 1874, a conviction of absence- (Tithout leave was disapproved by Gen. Ord. — " because the only evidence of guilt Is the statement of a witness that the accused was ' reported ' absent for a certain time. But there is no evidence to show who ' reported ' him, or that the report was true." ' Samuel, 338 ; O'Brien, 92-3. ■ Bee authorities cited in last note. ' Opins. At. Gen., 695. And see Lieut. Asquith's case, in G. O. 43 of 1832. » As amended by G. O. 69 of 1891. "It Is added, however, — "An absence without leave of less than one day shall not be noted upon the muster and pay rolls." "Page 288. " G. C. M. O. 42 of 1888. «G. t. M. O. 109 of 1891. MILITARY LAW AND PRECEDENTS. 609 Academy." The instances of trials under this Article, though not as numer- ous as those under Art. 32, are not unfrequent in practice." The offence of " failing to appear at the fixed time," &c., may consist either in non-attending or attending tardily. The excuse of sickmesa should, of course, as remarked by Samuel," be made out by the testimony of a medical oflacer. In the case of the offence, specified in the second clause of the Ar- ticle, of " going from " the place of exercise or assembly, " nothing," Samuel observes, " will serve as a defence but the absolute leave of the commanding officer." " Thibty-pohbth Article. FTTRPOSE AND EFFECT. This Article, says Simmons," "is of very ancient standing," and appears to have been framed chiefly to prevent maraud- ing, by checking Inclination to straggle at great distances from camp during the time soldiers may be unemployed, and when they may be lawfully absent." Samuel observes " that " a mile is mentioned as a convenient place; probably, for all purposes of exercise and refreshment. But," he adds, "though 941 this is the prescribed limit beyond which soldiers cannot pass without particular permission, it does not follow that they may not be guilty of a military offence, 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 officer." It is only, however, where the distance is at least a mile from the limits of the camp or line of sentinels that the permission must be in writing: where the distance Is less than a mile the authority may be verbal merely.'^ In other words the distance of a mile may be regarded as fixing the limits within which, as a general rule, a mere verbal authority to be absent shall be legally operative in the case of a soldier. Thirty-fifth Article. PTJKPOSE AND EFFECT. The " retirement " here indicated, says Hough," is that " of soldiers to their usual place of rest for the night ; to insure which the names of the men of each company are called over at retreat-beating." "The Article," observes Samuel," "is calculated to secure the regular and orderly return of men to the posts wherein they are or ought to be found for the night, thus keeping the forces together to act on any emergent occasion. * * * The return of troops to their quarters at a reasonable time," he adds "has another advantage: it gives an habit of retirement to rest at an early hour inducing to the refreshment and health of the soldiery." The same writer cites further,=° from Sutcliffe's " Combination " the following old order which, in its spirit, is applicable to the army at all times:-" All manner of ««■ '^■^.J'inlVTo 1 32. 66, 83, of 1890; Do. IT, 35, 52. 104, 109. (slz JcmcyioT) of ?«91-; DO. 44.'62, 71. 99. (nln. .peo«cation«., 103. of 1892 ; Do. 7, 9. 26, 93, of 1893. "Page 548. And see O'Brien, 94. "Page 548. » S 183. And see Samuel, 543. _ » It comes from Art. 20 of James II. » Pages 542-3. And see O'Brien, 93. "See Hough, 285. "Page 287. ••Page 545-6. And see O'Bnen, 9*. "Page 546-7. 440593 0-42-39 QIQ MILITARY LAW AND PRECEDENTS. persons within the camp or garrison, after the watch is set «l>^aU ^^r f ?helr quarters and there use silence that every man may res . All steagglers and tumultuous persons, that are taken abroad after that time shall be committed to prison, and there abide until their cause be examined by the officers of justice, and order taken for their punishment or dismissing In our service the "retreat" is usually beaten by drum or sounded by bugle, at sunset. Thibty-sixth Abticle. 942 NATXTBE OP THE OFFENCES— Hiring to do duty. Of the provi- sion on this subject in the original British Article, Samuel writes," that it was "framed for the purpose of obviating an abuse which had for some time previously prevailed, and in a very notorious degree, among soldiers quartered in the metropolis or its vicinity, who. being able to find there constant and more profitable employment than in the miUtery service of the country, in work or labor on the Thames, or in the numerous yards and vyharfs upon its banks, engaged their comrades to undertake, for a certain proportion of pay, the particular routine of military duty which they would otherwise be obliged to perform." . The consideration paid or given, or agreed to be paid or given— whether pecuniary or otherwise-for the doing of the duty by the party hired, is of course immaterial." The offence Indicated is a rare one in our service. In an Order of the Department of the Missouri" is pubUshed a case of a soldier convicted of a violation of this Article in hiring another enUsted man to walk his post as a sentinel, while the accused took occasion to desert— an instance which forcibly Illustrates the use of the prohibition of the Article. Being excused from duty. This offence consists in procuring one's self to be excused from a miUtary duty for any cause other than those specified in the Article, or upon a false pretence of the existence of one of these causes. The "sickness" or "disability" which shall constitute an excuse from duty will of course, as a general rule, properly be established by the testimony or certificate of a medical officer of the commanfl or of the army. Thibtt-seventh Abticle. PURPOSE AND EFFECT. According to Samuel," this Article, which is supplementary to that last considered, was evoked by the existence of a 943 practice, on the part of officers at an early i)eriod, of consenting to the hiring of duty, upon the condition of receiving a pecuniary consideration, to be derived from deductions from the soldier's "pay or profits." If. as says Hough." such a practice were sanctioned, two men would in fact be required to perform the duty assigned to one. This and the previous Article, besides being judicious rules of discipline, illustrate one of the aims of the military law, as a law not only of justice but of honor, vie. to preclude the subsisting of anything like a mercenary transac- tion or relation between officers and enlisted men. "Page 549. » See Hough, 290. « G. O. 90 of 1867. "Page 549. "Page 291. MILITARY LAW AND PRECEDENTS. fill FOBTIfiTH AETIOtB. Vie?!? sL^i"» CO^STBTTCTION. The main object of this Article, In the view of Sami^l, Is to keep united the military bodies indicated and thna secure their efficiency. It is now, however, an antiquated provision' Tnd wTtt outsigrnlficance except in so far as it relates to the offence of "'uiMnrwJ gua«i by an Officer or soldier. This offence has been occasionally madf the subject Of a charge, and a few rulings upon the Article, with esp2 XeS this part Of It, are to be found In the General Orders. Thus in one OrdTr^ the quitting of his guard without authority by an o^cer of tUe gZ^a TcL mented upon as a grave instance of offence under this Article. In a caseTn another Order," It is ruled that the description-- any officer," &c., appSes o an offlcer of the aay, " the guard mounted under his direction in th; morning " being deemed 'his guard' in the sense of the Article." In a further case" a conviction under the Article is disapproved because the specification did "not allege the absence of urgent necessity." It may be noted that this term—" urgent necessity," is evidently of the same Import as the words-" sickness or other necessity," employed in another of the Articles of this class, the S3d." 944 It may also be added that the word " guard " is not to be construed as limited to the regular dally camp or i)ost guard, but as including any formal guard— as an escort guard," guard for prisoners, &c. XV. THE THIRTY-EIGHTH ARTICLE. [Drunkenness on Duty.] " Aht. 38. Any officer who is found drunk on his guard, party, or other duty, shall be dismissed from the service. Any soldier who so offends shall suffer such punishment as a court-martial may direct. No court-martial shall sentence any soldier to he branded, marked, or tattooed." ORIGIN. This provision, of which the original in our code is Art. 20 of 1775, may be traced, so far as pertains to drunkenness on the part of guards or sentinels, to Art. 51 of the Code of Gustavus Adolphus. CONSTRUCTION. The principal questions which have arisen under this Article have been raised upon the meaning of the terms — " found on," " drunk " and " duty." To determine in what consists the specific offence, it will be neces- sary to interpret these several expressions. " Found on." From the use of these words it is to be implied that the drunkenness of the offender must exhibit itself after he has entered upon, and while he is on, the duty." The Article does not require that the accused shall have become drunk, but that he shall have been found, i. e. discovered or per- ceived, to be drunk, when on the duty, and it does not therefore necesSdrily follow that his drunkenness shall have commenced after the duty has been entered upon. To permit an officer or soldier, when inebriated, to go upon any duty of importance, while in general involving an injustice to the individual, is Tage 550. And see O'Brien, 95. " Q. C. M. O. 142, Dept. of the Mo., 1871. "G. O. 71, Second Mil. Dist., 1867. "G. O. 48, Dept. of Ark., 1864. "See Hough, 292. " See G. O. 48, Dept. of Ark., 1864. " Samuel, 551 ; O'Brien, 136. 612 MILITABY LAW AND PBECEDENTS. also a reprebensible act and a military offence in the superior who know- 945 ingly suffers it." But the fact that he was already intoxicated cannot render the party himself any the less Mgally liable under the' Article, if, after having entered upon the duty, his intoxication continues and his condition is detected." But, on the other hand, a soldier, (or oflScer,) is not "found" drunk In the sense of the Article, if he is simply discovered to be drunk when ordered, or otherwise required, to go upon the duty, upon which, because of his condition, he does not enter at all. His offence is then chargeable not under this but under the 62d Article." "Dmik." The state of drunkenness contemplated by the Article may be said to be one which Incapacitates the officer or soldier, mentally or physically, for the proper performance of the duty upon which he has entered." There are of course various grades of Intoxication, and, under those which are less pronounced, the party may be -able to perform the duty imperfectly — to get through it after a fashion — 'but not properly. In any' such case he is in general to be held to be " drunk " in the sense of the Article equally as if he were totally Incapacitated ; a due, proper, and full execution being that which is required of him, and his offence being complete where, by becoming intoxicated, he has rendered himself either more or less incompetent for the same." 946 And, as a general rule, in proportion as the duty is difficult or im- portant," and especially in time of war," a less degree of intoxication may " " The officer who details or puts blm on duty, knowing his drunken condition, is liable to censure and pnnlshment." (Gen. SchoSeld.) G. C. M. O. 123, DIv. Atlantic, 1887. And see remarks of Gen. Pope in Q. C. M. O. Ill, Dcpt. of Cai., 1885 ; also G. O. 21, Id.", 1869 ; Do. 14, Id., 1871 ; Do. 51, Dept. of the East, 1869 ; Q. C. M. O. 5, Id., 1871 ; Do. 20, Dept. of Texas, 1866 ; G. C. M. O. 12, Id., 1880 ; Dp. 23, Dept. of Dakota, 1881 ; Do. 1, Dept. of Arizona, 1891 ; Do. 17, H. A., 1892. " G. O. 11, Dept. of La., 1869 ; G. C. M. O: 113, Dept. of the Mo., 1873 ; Do 12, Dept of Texas, 1880 ; Do. 3, Dept. of the Platte, 1886 ; Do. 123, Div. Atlantic, 1887. " G. C. M. O. 123, DiT. Atlantic, 1887 ; Do. 17, H. A., 1892. " See Samuel, 551 ; Hough, 295 ; O'Brien, 136 ; also Orders cited in next note. "In G. C. M. O. 33 of 1875, a finding upon a specification to a charge, under this Article, of "guilty excepting, the words 'did become drunk,' and substituting therefor ' did become under the infinence of intoxicating liquor,' " was disapproved hj the Secre- tary of War, (as drawing too fine a distinction for the practical administration of Justice,— see Digbst, 38,) and the general rule la laid down that— "Any such Intoxica- tion as is sufficient to sensibly impair the rational and free exercise of the mental or physical abilities, is drunkenness within the meaning of the law." In G O 53 98 Army of the Potomac, 1862, it is said on this subject: " Unfitness may be more or' less complete ; but to be intoxicated at atl unfits a man either to give an order or to execute It"' . » . " Nothing can be more erroneous than to suppose that as long as an officer is not drunk to insensibility— a condition, moreover, in which he is far less apt to do mischief than when he is simply drunk enough to be indiscreet— he is not drunk at a I. The fuUest possession of his faculties, by every officer, is necessary to fit Mm to discharge his duties properly. These duties are not so simple as to be within tiie competency of a half-sober person." (Gen. McClellan.) And see remarks of Gen Aueur m G. O. 33. Dept of tile Platte, 1871. In Q. C. M. O. 13, Dept. of the Mo V882 ^ rhTI^Z*°.f ^ unsatisfactory action of a court in not finding an officer '^ilty undei this Article, as apparently owing to the fact that-" while the accused was alTOM more or less under the Influence of alcohol, he never quite reached tii ZfL . 7„ G. C. M. O. 21 Dept of the Mo., 1870, Gen. Schofield notCthat^^lt^n^ necessary to prove an officer so drunk as to be unable to «>nik nr t„ o»„_. . necessary mental faculties, to convict him of being dn^koTduty." In g"o ^^^'t^ ^1" ^nebr^tion^are synonymous terms, see G. o"5r98. ^^^ or^''^Z;.T^^T6;^t v:^jt:^\^z '^ "^^ "' """""•*" "' ' --"-'t* po^t- «■ c. M. o. «. -See G. O. 57, Dept of Va. * No. Ca., 1863; Do. 2. 48, Id.. 1864, Do. 6, Id., 1866. MILITABT LAW AND PRECEDENTS. 613 be held sufficient to constitute the off«»ce*. But where the party Is In fact qualified to perform the duty, as It was Intended to be, or should be, performed, the circumstance that he Is enlivened or made dull or unweU by his Indulgence, will not alone render him chargeable under the Article." It should be observed that it is not essential that the drunkenness be caused by the drinking of spirituous beverages. As is weU remarked by Simmons," the offence is complete whether the party found drunk be " under the influence of liquor, opium, or other intoxicating drug or thing." " Duty." The connection in which this term is employed—" guard, party, or other duty," has at times induced the impression that only such duty was meant as was similar in its nature to guard duty ; that is to say, some regular and stated duty for which the officer or soldier has been formally detailed. 947 But the ruling in an early General Order of the War Department," that the Article had " reference solely to duties of detail," was overruled in a later Order," in which it was held by the Secretary of War that the omission from the present Article, after the word " duty," of the words " under arms," which were contained in the original codes of 1775 and 1776, was "with intetir tion to include all descriptions and circumstances of duty." In a third Order " this second interpretation of the Article was expressly affirmed, and It was re- marked that " the omission of the words ' under arms ' removed one restriction without introducing a new one," and that " the general words ' or other duty ' provide for all actual occasions of duty." Upon this authoritative construction, which has been quite generally followed in practice, it may be held to be the law tha.t not only is drunkenness on guard, drill, police, parade, inspection, muster, court-martial," or any other duty or exercise of routine, fully within the contemplation of the Article, but also drunkenness upon any occasion of duty properly devolved upon an officer or soldier by reason of his office, com- mand, rank, or general military obligation." The specification should of course set forth precisely the description of the duty which the accused was on at the time of the offence." Continuous duty. WhUe the term " on duty " can scarcely be regarded as so broad or comprehensive, in respect to the periods or occasions embraced, as the phrase " in the line of duty," employed In statutes relating to pensions, bounty and the like," there are yet some instances recognized by the authorities, 948 where officers or soldiers, by reason of the pecuUar nature of their office or duty, are considered to be continuously, or during business or working hours, on duty, and thus amenable to charges under this Article if becoming in- toxicated during such period. Within this description have been classed post "See O'Brien, 136, 309. " § 136. And see Hough, (P.) 208 ; James, 60 ; also cases — to the same effect — in G. O. 28 of 1851 : G. C. M. O. 49 of 1883 ; Do. 82, Dept. of the Mo., 1888. "G. O. 59 of 1843. "Q. O. 7 of 1856. "G. O. 5 of 1857. " See G. O. 58 of 1831 ; G. C. M. O. 63 of 1882. " As to drunkenness on occasions of reporting for duty or for orders, see Digest, 37 ; also case, in G. C. M. O. 2 of 1888, of an officer tried for being found drunk on report- ing as new officer of the day to his post commander, and sentenced to be dismissed, which sentence Is approved by the President. In G. C. M. O. 18 of 1891, la a case of drunkenness on duty by a musician of the band of the Military Academy at a military funeral — of which the proceedings and sentence are duly approved. "G. O. 18 of 1887. " In the Joint Resolution of AprU 12, 1866, the term " in the line of duty " is expressly defined as meaning — " while actually In service under military orders, not at the time on furlough or leave of absence, nor engaged in any unlawful or unauthorized act or pur- suit" 614 MILITAEY LAW AND PRECEDENTS. commanders " and post surgeons," *ho are In general liable to be called upon for duty at any time during at least the business hours of the day. So a post or dep6t quartermaster would ordinarily be similarly amenable during any of the hours in which he may properly be called upon for the performance of duties pertaining to his office." An officer of the day is thus liable if found drunk at any moment of his tour of duty whether in the day time or at night." Again, in time of war, and especially in the field before the enemy, the status of being on duty, in the sense of this Article, may be uninterrupfjed for very considerable periods. As remarked by the reviewing authority, in approving a conviction of an officer under the Article early in the late war,'' — " an officer, when his regiment is in front of the enemy, is at all times on duty." In a more recent Order of the War Department," in the case of an officer found drunk while on duty in command of a company " on an expedition against hostile Indians," it was held by the Secretary of War that — " the nature of the service and the safety of the command certainly constitute this a duty in the sense of the Article." ^ 949 Term of duty. The status of being on duty continues of course till the duty is executed or the party is discharged or relieved therefrom. A question, however, as to when the status actually commences has sometimes been raised in cases of soldiers ordered to go on guard, or to turn out for parade, drill, &c., and who are " found drunk " while being inspected or formed in the ranks before entering upon the specific duty designated. In these cases it has, in some instances, been held that as the soldier, when so found, has not yet gone upon the guard, &c., he has not commenced to be " on duty " in the sense of the Article." But the opposite — as held in other instances"" — is deemed the better view ; for although the soldier, in such cases, has not entered upon the duty for which he Is finally destined, he is upon the duty preliminary to that, and which is as much a duty as that is, of reporting and being inspected. What is military duty. The term " duty," as used in this Article, means of course military duty. But — it is important to note — every duty which an » Sec cases in G. O. 5 of 1857 ; G. C. M. 0. 10 of 1879 ; Do. 53 of 1883 ; Do. 21, Dept. of the Mo., 1870; Do. 48, (H. A.) 1887. And compare G. C. M. O. 9 of 1875. "Digest, 37. And note remarks of Secretary of War in G. O, 64 of 1851. " See the case published In G. C. M. O. 49 of 1883. " " It is not necessary," to bring his case within the Article, " that the officer of the day should be drunk at inspection of the guard, or at the performance of any particular act as officer of the day. He Is liable. If found drunk between going on and going off guard." G. 0. 54, Dept. of the South, 1875. (Gen. McDowell.) And see Do. 7, War Dept., 1856; Do. 5, Id., 1857. So a member of a camp or post guard Is on duty not merely while on post as sentinel, but during the entire day or period for which he has been detailed for guard. See above cited G. O. of Dept. of the South ; also case in G. C. M. O. 2 of 1888, referred to ante. " G. 0. 57, Dept. of Va. & No. C, 1883. And see Do. 1, 48, Id., 1864 • G C M O 5 Id., 1865. ■» G. C. M. O. 9 of 1875. » An officer may be on duty tor certain purposes, but not In the sense contemplated by this Article. Thus an officer ordered to relinquish his command and to remain at his post and " await further orders from Washington," was held to be " under orders in the line of duty," and " on the duty of awaiting orders," so far as to be entitled to the com- mutation allowance for fuel and quarters under the then Army Regulations 9 Oplns At. Gen., 376. But aA officer found drunk at his post during such a status would not be amenable to trial under this specific Article, however much he might be under the 62d or 61st. /n^f' ?co?- ^^' ^^' °*P*- °* *''* ^°"*^' ^®^^ : «>• C- ^^ O- 2. Div. of Pacific & Dept. "6. O. 11, Dept. of La., 1869; G. C. M. O. 12, Dept. of Texas, 1880. And see Do 113, Dept. of the Mo., 1873 ; also O'Dowd. 72, . = • ■anu see uo. illiJTARY LAW AND PEECEDENTS. 615 officer or soldier Is legally required, by superior military authority, to execute, and for the proper execution of which he is answerable to such authority, Is necessarily a military duty, and this, although It be a duty which a civilian could with equal fitness be employed to perform. Thus an officer or soldier engaged in engineering operations, not connected with military works, under the orders of the Chief of Engineers of the army, or one duly serving upon a posse comitatus in aid of a civil official,™ or acting as an Indian agent 950 under Sec. 2062, Rev. Sts.,"* would, if disqualifying himself by intoxica- tion for the proper performance of the service devolved upon him, be amenable to charges under the present Article." PBOOF. The simplest and most satisfactory evidence of the fact ot drimk- enness will be the statements of witnesses as to the appearance, condition, man- ner, language or acts of the accused, or other attendant circumstances from which a state of intoxication may be presumed. But as drunkenness Is to a great extent a matter of common observation, it Is held not to be an infringe- ment of the rule of evidence — that a witness, (not an expert,) shall not be asked or allowed to give his opinion for witnesses, when interrogated as to the condition of the accused, to state, as a fact, that he " was drunk.""' But witnesses so stating should, for the information of the court and the reviewing officer, properly be required to state also in detail the observed facts upon which their conclusion Is based." Further, military witnesses, when of the proper rank and experience to enable them to testify as quasi experts, may be asked their opinion as to whether the accused was or not c£^pable, under the circumstances of the case, of properly executing the duty indicated in the specification. DEFENCE. When a drunkenness while on duty Is shown, but the fact Is that the accused- had become drunk before he was detailed on the duty, so that his actual offense was not properly one under this Article but rather under the 62d,, he may show such fact by way of defence." He may also show in defence that the spirits' or drug had been taken by him as a medicine only, and that because of the strength of the dose, a weak head, depreciated health, 951 the heat of the weather, fatigue, or other cause, it had over-afEected him. But he should prove further that the same had been prescribed by a medical officer or physician, since an officer or soldier is not authorized to risk Incapacitating himself for duty by taking medicine at discretion. EINDING. Where the evidence shows that the accused was drunk but hot on duty, the court may and properly should find him guilty of the specification. except as to the averment In regard to the duty, and not guilty of the charge "» See O'Dowd, 72. " Otherwise perhaps where the officer was so serving under the Act of JMy 13, 1893, which detaches him from military command and places him "under the orders and direction of the Secretary of the Interior." ,_,,,,. ^ » In the leading case of Runkle v. V. S., 19 Ct. Cl., 412. It was held that services on a detail In the Freedmen's Bureau In 1870, was a military duty, and the court well gav— " Whatever service a miUtary ofBcer Is lawfully ordered by his superior officer to oerform Is in the eye of the law, a mUitary service, though when performed by a private citizen, under the employment of others, It would be a purely civil service. It ig the military character of the officer, acting under lawful ml itary orders, which makes the duS a military one, whatever may be the particular description of work involved In the performance of that duty." k»„„,„ » See Chapter XVIII—" Statement of opinion or bdlef. "G. C. M. O. 59, Dlv. Atlantic, 1888. "Q. C. M. O. 17 of 1892. gjg MHilTABT LAW AND PBECEDEKTS. but guilty of " conduct to the prejudice of good order and mlUtary discipline." This is one of the eases in which such form of finding Is especially useful and appropriate.** XVI. THIRTY-NINTH ARTICLE. [Offences of Sentinels.] "Abt. 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 pumshmeiji as a court-martial may direct." OBJECT OF THE ABTICLB. The purpose of this provision, (which may be traced to Art. 32 of the Code of James II, as derived from Art. 50 of Gustavus Adolphus,) is to secure on the part of sentinels that alert watchfulness and steadfastness which are the very essence of their service These quaUties, important as they are to the protection from depredation or loss by fire of the public property collected at a military station, are, in time of war, absolutely essential to ensure a camp or post against the danger of surprise and capture by a hostile force. Grave as must be on all occasions the offences specified in the Article, it is in the field before the enemy that they become of the most aggravated character, and it is especially to prevent their occurrence at such critical seasons that they are made punishable with death." 952 SLEEPING ON POST — Proof. As to the proof of this offence, it should first be shown by the officer or non-commissioned officer whose duty it was to detail and to post the sentinel, that he was duly detailed and duly posted as charged. That he was found asleep should most properly be proved by the testimony of the officer of the day, or officer or non-commissioned officer of the guard, (or by some member or members of the guard or patrol then present,) by whom he was discovered in that condition. That he was actually asleep may be shown by some such fact or facts as the following, viz.^tb&t accused, (if the offence occurred, as it usually does, in the night,) failed to challenge the officer or party approaching his post ; that he was found lying down, or in a position favorable to sleep, instead of standing or walking his beat ; that he was snoring or breathing as if in sleep ; that he did not answer when spoken to, once or repeatedly ; that he did not apparently become con- scious till touched, shaken, &c. ; that when roused he was stupid ; that he had dropped or laid aside his musket, or that he allowed it to be taken from him without resistance, &c. LEAVING HIS POST BEFORE BEING REGTTLABLT RELIEVED— Proof. After showing the due detail and posting of the accused, this offence is usually established by evidence that, when the post was officially visited dur- ing a tour of duty of the accused, he was not found upon it, and that he had not been for any cause relieved by an officer or non-commissioned officer of the " The corresponding form in our naval practice Is — " Guilty in u. leas degree than charged; guilty of drunkenness." ™ " There Is nothing upon which the safety of an army or command so much depends as the faithfulness and vigilance of sentinels." G. O. 67, Dept. of Washington, 186B. (Gen. Canby.) "The duty of a sentinel Is of such a nature that its neglect by sleeping upon or deserting his post, may endanger the safety of a command or even of a whole army, and all nations affix to the otEence the penalty of death." G. O. 8, Army of the Potomac, 1861. (Gen McClellan.) And see G. Q. 15 and 24 of the same command and year; also Samuel, 556-559. The last named authority refers to another purpose of sentinels, that they " are required to watch that others may sleep, whereby the camp may be seasonably refreshed." MILITARY LAW -AND PEECEDENTS. 617 guard or other con^ietent authority. Or It may be shown that he was, under rimllar circumstances, discovered to be at a place— his quarters for example— quite other than his post, or was seen off his post and at a material distance from it. " Regularly relieved." The Army Regulations," (expressing a custom of the service,") direct that a sentinel's tour of duty, between reliefs, shall, as a general rule, be two hours ; and they further prescribe by what officers a 953 sentinel may be relieved at the end of a tour." In cases of illness or other urgency, occurring pending a tour, a sentinel may be relieved tem- porarily or altogether, upon application transmitted in the usual manner to the officer of the guard. A sentinel, however, cannot relieve himself," nor can he " regularly " be relieved by another sentinel except in the prasence and under the supervision and direction of an officer or non-commissioned officer of the guard. Referring, in a case of the offence under consideration, to the mere re- Ueving of sentinels by each other. Gen. Ord well says^" This method of con- ducting guard duty is in direct violation of the Regulations, and sentinels allow- ing themselves to be thus relieved are liable to trial for a violation of the 39th Article." " DEFEITGE AND EXTENUATION. It has been held no defence to a charge of " sleeping on post " that the accused was on guard the day previous; " or that an Imperfect discipline had prevailed in the command and similar offences had been allowed to pass without notice ; " or that the accused was not duly posted as a sentinel ; " or that he was ill, since, if really so, he should not have gone on duty at all but duly reported for medical treatment." So, to a charge of " leaving post before being regulary relieved," it has been held no defence that it was a custom in the command for sentinels to relieve themselves, and that the accused had but followed this custom." Circumstances, however, which could not constitute a legal defence, may be admissible as evidence going to eTtenuate the offence committed and 954 reduce the measure of the punishment, or to Induce a mitigation of the punishment, after sentence, by the reviewing authority. Thus it may be shown that the accused, when posted as a sentinel, was ailing or disabled;" or that he had already been overtasked by excessive guard duty or other con- tinuous service ; " or that he had temporarily left his post under an extraor- dinary stress of weather ; " or that, in irregularly relieving himself or allowing "Par. 506. " See Hough, 303 ; Id., (P.) 180. "Par. 608. " See G C M. O. 80, Dept. of the Mo., 1875 ; Do. 45, Dept. of the Platte, 1891. «G. C. M. O. 38, Dept. of Texas, 1875. And see O'Brien, 138; G. 0. 166, Dept. of the Routhi 1864 ; G. C. M. O. 80, Dept of the Mo., 1875. "G. O. 74, Army of the Potomac, 1862. " See Order cited In note 78. "See order citea in uoie lo. ^ .. ,^ ,. n For " he had lawfully assumed aU the responBlbilltles of a sentinel, and should have teen punished for his fault " accordingly. (Gen. Hancock.) And see G. O. 166, Dept. of the South, 1864. „ .** , "G C M O. 32. Dept. of the Mo., 1887. (Remarks of Gen. Merrltt.) »For ^uch a custom Is "clearly contrary to law." G. C. M. O. 80, Dept. of the Mo., ""^See G C M. O. 136 of 1864 ; G. O. 72, Dept. of Cal., 1872 ; Do. 14 Id., 1871 : Do. 21. "•« ri ""o !^- aTDepl". r^r ba°: ifasX- i: IXrrDV. 1865 ; DO. 67,. °^rp:,^ X^^rAr^lie^gnlatlL^t^^^^^^^^^^ of -t.? ^T- ever^"i>; state of the weather or other causes shaU make longer or shorter Intervals" than the regular tours " necessary." gig MILITAKT LAW AND PRECEDEITTS. himself to be relieved, he had but observed a usage sanctioned by his official superiors; or that, being a recruit, he had not been properly instructed in his duties as a sentinel." PUNISHMENT. The infliction of the death penalty for the offences speci- fied in Art. 39 is as old as the history of armies.'" In our practice, the extreme punishment is most rarely, if ever, resorted to except in Ume of war.'" During the late war of the rebellion it was adjudged not unfrequently for the offence of sleeping on post." 955 XVII. THE FORTY-FIRST AND FORTY-FOURTH ARTICLES. [Causing False Alarms : Disclosing the Watchword.] " Abt. 41. Amy officer who, hy any means whatsoever, occasions false alarms in camp, garrison, or quarters, shall suffer death, or such other punishment as a court-martial may direct." "Aet. 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 punish- m,ent as a court-martial may direct." ARTS. 41 TO 46. Of this series of Articles— which refer to a class of capital offences pertaining mostly to time of wor— those" will be considered together which may be most conveniently associated. FoBTY-piRST Article. ITS OBJECT. Samuel," in commenting upon the corresponding early British Article," writes : — " The mischiefs it seeks to prevent are, first, the disturbance of the quiet of the camp or quarters, whereby the troops might be deprived of that seasonable refreshment from sleep, which nature and the fatigues of war render requisite; and secondly the harassing and vexing of the soldiers by unfounded alarms, by experience of the falsity of which in former instances they might chance to be deceived when " a true " signal of alarm might be given, or be less able or disposed to exert themselves * * * when their prompt and immediate services should be demanded." « See G. O. 74, Army of the Potomac, 1862. In caeea where the offence of the accused has been in part Induced through the neglect or oppressive treatment of a superior, the latter has been not unfrequently pronounced more culpable and deserving of punishment than the former. See G. O. 15, Army of the Potomac, 1861; Do. 10, 62, Dept. of Va. & No. Ca., 1863; Do. 21, Dept. of Cal., 1869; G. C. M. O. 59, Dept. of Texas, 1872; Do. 80, Dept. of the Mo., 1875 ; Digest, 39. «> " It Is said that Epaminondas, In making the circuit of his camp, slew a sentinel whom he found sleeping, using this memorable saying — ' that he did him no barm, leaving blm only as he found him.' " Samuel, 557. " See G. O. 20, Dept. of N. Mex., 1862. " To refer only to cases published in the Orders of the War Department — see G. O. 125, 127, 185, 189, 197, 225, 234, 260, 264 and 377, of 1863 ; G. C. M. O. 31, 38, 75, 81, 113, 151, 235 and 402, of 1864. In every instance the sentence was either commuted or remitted by President Lincoln. In G. O. 17, Dept. of the Mo., 1861, Is approved a peculiar sentence for this offence, via. — ^to forfeit certain pay, to stand on a barrel for a cestaln period in the centre of the camp, and to " have a sign hung on his back Inscribed ' Sleepy Head.' " "Page 575. » See Its originals in Arts. 14 and 15 of Sec. Ill of Charles I, Art. 28 of James II, and Art. 48 of Gustavus Adolphus. And compare Art. 11 of Richard II and note to same, in Appendix. MILITARY LAW AND PBKOEDENTS. 619 THE NATtTRE OF THE OFFENCE. For un Illustration of the term " faUe alarms " recurrence may be had to the form of the Article In the code of 1806, where the language, repeated from the British original, is — 956 "Any officer, who, by discharging of firearms, drawing of swords, beating of drums, or by any other means whatsoever, shall occasion false alarms," &c." A later British Article" added, (after "beating drums,")— "making signals, using words, or by any means whatever." Among "other means," says' Hough," " ma^ be enumerated the sounding of trumpets, bugles, or other wind instruments." Samuel " observes that " by ' other means ' may be intended such noise, or cry, or signal, or report, as might be raised or made for the purpose of causing, or be calculated to cause, an unfounded alarm." That the alarm was a false one will be established by evidence to the effect that there existed at the time no material cause or occasion which could reason- ably Induce a general alarm." Thus, before the enemy, in the absence of any warning from the picltet line or outposts, it would In general constitute an offence under this Article for an officer, within the camp or post, to order the long roll to be beaten or otherwise raise the alarm, except on account of some serious internal cause, as a dangerous fire. Where indeed there may exist reasonable ground for an alarm, it will not be an offence but the reverse to arouse and notify the command by the most effectual means.'" The intent. The offence as defined in the later British Article " was that of " intentionally " occasioning false alarms. No such qualification is contained in our Article, and if only the alarm be false, that is to say without reasonable foundation, the offence will be complete whatever may have been the intention. That the officer honestly believed that sufficient cause existed for an alarm raised by him when the opposite was the fact, while not affecting the question of his legal liability to a conviction, may properly be shown in evidence as going to extenuate his offence and reduce the measure of the punishment. 957 Application in practice. " From the nature of the Article," observes O'Brien," "it will most generally find its application in a season of war,' though its letter does not in any way exclude times of tranquillity." Occasions of conviction under it have been rare in our army even in war. In an Order of 1863 ™ is published a ease of a lieutenant convicted of a violation of this Article in discharging his revolver " several times unnecessarily," while an officer of the advance guard, " thereby causing the garrison to stand under arms." In a more recent Order of the War Department," is the case of an officer convicted of causing a cannon to be discharged in the garrison, thereby creating an un- necessary alarm. FOBTY-rOTJBTH ABTICIJX OBIGIN. The original of this provision may be found in Art. 31 of the Code of James II, and Art. 26 of ou r first Articles of 1775. «bne of the charges against Col. T. Chambers, 1st Infy., (1826,) was causing the camp to be alarmed at night by the unnecessary discharge of fire-arms aad sounding of the lone roU.— Am. S. P., Mil. Af., vol. 3, p. 307. "Art. 55, (arid also Art. 71,1 of 1873. Clode, M. L.. 269, 272. "Page 320; also. Id., (P.) 177. "Tage 576. "See Hough, 321. « See Samuel, 575. "Art. 55 of 1873. "Page 139. "G. C. M.'a^lS of 1876. "This act, however, (commuted under the influence of liquor and In time of peace,) Is charged under Art. 62. 620 MILITABY LAW AND PRECEDENTS. WATCHWORD AND PABOLE DISTINGTTISHED. The British commen- tators "• distinguish the watchword as the " key of the camp or garrison at night " and the parole as " the passport for the day." Our Army Regulations, (par. 493,) define these terms as follows :—" Countersigns, paroles and watch- words will be used in the performance of guard duty, especially in the presence or vicinity of an enemy. The countersign is a word given daily to enable guards anfl sentinels to distinguish persons at night. It is given to such per^ sons as are entitled to pass and repass during the night, and to the officer, non- commissioned officers, and sentinels of the guard. To officers commanding guards a second word, called the parole, will be given as a check upon the countersign, by which such officers as are entitled to make visits of inspection at night may be distinguished." * 958 THE TWO OFFENCES CONSIDERED — 1. Making known the watchword to persons not entitled to receive it. The Article, (which is applicable not merely to time of war, but also to time of peace," upon those rare occasions when a countersign is employed,) includes, in the first of the offences designated, all impartings, secretly or openly, of the watchword to improper persons, whatever be the motive — whether, for example, the giving of aid to the enemy, or the facilitating of the admission into the camp or post of unauthorized persons not enemies, or the exit of deserters, prisoners, or other parties absenting themselves without authority.' It would include also cases of the offence committed without specific motive, but through negligence merely or want of appreciation of the purpose or significance of the watchword.* What persons are " not entitled to receive " the watchword is best ascertained by considering who are or may be entitled to it. The Article itself in- deed indicates in general terms to whom it may be communicated, t. e. to those " entitled to receive it according to the rules and discipline of war." Such persons are — First: the officer of the day, and the officers, non-commissioned offi- cers, and soldiers of the camp or post guard, provost guard, picket-guard and outposts;' Second: such officers or soldiers not on guard, members of the families of officers or soldiers, officers' servants, civil employees, or camp-fol- lowers, as may be authorized by the commanding officer to pass the lines 959 for any purpose;* as well as any other persons military or civil, not •°» Samuel, 571, 573 ; Hough, 316. 1 As to the procedure of giving and receiving the countersign or parole, see pars. 513, 514, A. R. Beside the regular watchword or parole, a special one Is " sometimes given preparatory to an action," (O'Brien, 140,) or to the members or officers of a force detailed to execute a particular movement, especially at night. " See O'Brien, 140. > See case in G. O. 242 of 1863. •In a case of an officer convicted of Improperly making known the parole. Gen. Rose- crans observes as follows : — " His excuse, that he did not know the object and purposes of the parole, and had not noticed what the Regulations contained on that subject, only aggravates his offence by adding to it inexcusable ignorance. After receiving the parole and not knowing its use, he should have sought information before putting it to any use." G. O. 24, Army of Occupation, W. Va., 1861. ' In nearly all the reported cases the accused was an officer or soldier of this class. See 6. O., Army of Occupation, W. Va., 1861 ; Do. 18, Army of the Potomac. 1862 ; Do. 45, Dept of the South, 1862; Do. 28, Id., 1864; Do. 47, Dept. of Washington, 1863; Do. 58, Dept. of the Mo., 1864 ; S. Field O., Dept. & Army of the Tenn., Jan. 11, 1864. •See Samuel, 573-4, where, besides the proper officers and soldiers, he mentions, as persons to whom the watchword may be imparted, "such others as have the common or special privUege " of the garrison, &c.,— " as licensed inhabitants, sutlers, camp- foUowers and the like. But." he adds, "the countersign is not made known, as of course, to the latter description of persons, but on the sound discretion of the officer U command." And see O'Brien, 140, MHilTAKY LAW AND PRECEDENTS. 621 connected with the command, who, as visitors or for purposes of business,' may be permitted by the same authority to enter the post or depart from it without detriment to its security or prejudice to the interests of the service. In brief the persons Intended by the Article are those whom the law and custom of the service recognize as proper persons to be furnished with the countersign, and whom the rules of military discipline do not at the time preclude from being entrusted with it — a class liable to be restricted, at a period of war or other emergency, to a very limited number. In charging an offence under the Article, it need not be alleged, nor need It be shown by the evidence, who the particular persons were: provided they were persons " not entitled " to receive the watchword, it is immaterial whether ■or not they were personally known either to the prosecution or the accused.' It is no defence that the accused did not know that the party to whom he communicated the watchword was a person to whom it was not authorized to be imparted. The Article makes the act punishable without regard to the knowledge of the accused on this subject. The fact, however, that he honestly believed that he was giving the word to a proper person would be admLgslble in evidence in mitigation of punishment. 2. Giving a parole or watchword different from that received. It is ob- served of this offence by Samuel,* that, " though it could afford no information to an enemy, it might induce the most mischievous and ruinous confusion in the intended operations " of an army. The term " that which he received " will include of course a second or new parole or watchword where such has been substituted for one previously given out for the same night or occasion. The issue of a new countersign, to 960 replace one which has been lost or communicated to the enemy, is pro- vided for by par. 1075 of the Army Regulations of 1881." It would constitute an extenuating circumstance, though not a defeilce, that the accused, because of being a foreigner or for other good reason, had not understood the vyord when given out and so repeated it Incorrectly." Hough " observes, of the watchword or parole, that it "should be some short word which is familiar to all and easily to be pronounced." " According to an army regulation of 1863, (§ 558,) "the parole is usually the name of a general, the countersign that of a battle; " but this instruction is not repeated in the Regu- lations of subsequent dates. XVIII. THE FOETy-SEQOND AND FORTX-THIBD ARTICLES. [Misbehaviour Before the Enemy and Like Offences.] "Abt 42 Any officer or soldier who misbehaves himself before the en^my, runs away, or shamefully abandons any fort, post, or guard, which he is com- manded to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, or quits his post or coUtrs to plunder or pilUge, shall suffer death, or such ot her punishment as a court^nartial may direct. 'See Dnane'8 Mil. Diet.— " Connterelgn." kii-hoh in r n 242 ct iSfil- S «Se^ the aUegatione to the BpedficatioM In cases published In G. O. 242 of 1863. S. Field O.. Dept 4rAnny of the Tenn., Jan, 11, 1864. "Page 573. „,,„„,rf„„ th» couhtersien when It Is suspected that it has be- » See Samuel, 672 ; Hough, 816. " "T('tie ^cou^'teSiBMught always to be given in the language most to>ow„ to the troops." Duane, Wi. Diet.—" Countersign." 622 MILITAEY LAW AND PRECEDENTS. "Abt. 43. If any eommander of any garrison, fortress, or post is coni,pellea, ly the offlcers and soldiers under his command, to give up to the enemy or to aban- don it, the offlcers or soldiers so offending shall suffer death, or such other piwi- ishm,ent as a court-ma/rtial may direct." FOBTY-SBCOND AeTIOLE. OB.IGINALS. The originals of this and the next Article may be traced In Arts. 9 and 13 of Sec. Ill of Charles I, Arts. 22, 28 and 24 of James II, and in various provisions of the Code of Gustavus Adolphus, especially in the 961 Arts, numbered 55, 56, 62, 64, 73, 79, 89, 92, 93 and 94. The offence of pillaging is denounced in the still earlier Art. 7 of Richard II. AS COMPARED WITH PROVISIONS OF EARLIER AMERICAN CODES. The present Article is Art. 52 of the Code of 1806 expressed in im- proved English. The existing form is more general than that of 1775," which provided for the punishment of the offences described only when committed " In time of an engagement ; " and, as respects the offence of " leaving post, &c., to plunder and pillage," is also more general than the form of 1776," which made this act punishable only " after victory." Other details In which the present Article differs from Its predecessors will be noticed hereafter. MISBEHAVIOUR BEFORE THE ENEMY. This offence may consist in : — 1. Such acts by a commanding officer, as — needlessly surrendering his com- mand," or abandoning It before the enemy ; " abandoning, or absenting himself from, his post when expecting an attack ; " failing to advance against, attack, or resist, the enemy, when ordered or properly called upon to do so ; " 962 retreating, or withdrawing his command, before the enemy, without suf- ficient cause ; " conducting a retreat in a disorderly manner and without the proper precautions ; " falling to rally his force when in disorder but capable of being rallied ; " procuring himself unnecessarily to be relieved from the com- " See Arts. 25 and 30 ; also Nos. 10 and 12 of the " Additional " Articles of November of tiat year. "Arts. 12, 13 and 14, of Sec. XIH. '•See case in G. O. 87, Dept. of the Ohio, 1864. The leading case In our military history of an ofScer tried under this Article for a surrender Is that of Brig. Gen. Wm. Hull, who was convicted of " cowardice " In surrendering Fort Detroit and the " north- western army " under his command to the British, In 1813, and sentenced to death. The court, however, "In consideration of his revolutionary services and his advanced age, earnestly " recommended him to clemency, and his sentence was approved, but remitted by President Madison. " See G. C. M. O. 114 of 1864 ; G. O. 22, Mountain Dept., 1862 ; Do. 21, Dept. of the Tenn., 1863 ; Do. 37, Middle Dept., 1864 ; Do. 57, Dept. of the Gulf, 1864 ; Do. 7, Dept. of W. Va., 1864. An earlier leading case is that of Capt. Dyson, U. S. Artillery, tried and sentenced to be dismissed for running away and abandoning his post of Fort Wash- ington, at the time of the capture of Washington, D. C, by the British. G. O. Tenth Mil. Dlst., Nov. 17, 1814 ; American State Papers, Military Affairs, vol. I, p. 588. " G. O. 144, Army of the Miss., 1862 ; Do. 174, Dept. of the Mo 1864 - See G. O. 18 of 1863 ; G. C. M. O. 33 of 1880 ; G. O. 7, Dept. of W Va 1864 • S. Field O., Dept. of the Tenn., Jan. 11, 1864 ; Do. 71, Dept. of Washington, 1865 »See G. O. 189, 282, of 1863; G. C. M. O. 33 of 1880; G. O. 144, Army of the Miss., 1862 ; Do. 73, Dept of Va. & No. Ca., 1864. In G. O. 229 of 1863, an officer was convicted of allowing his command to retreat in disorder before a body of U S troons supposed to be the enemy. ' "Hough 341. And see G. O. 144, Army of the Miss., 1862. The "misbehavior before the enemy, of which Maj. Gen. Chas. Lee was convicted, (1778,) was his making an mm^essary and in some respects disorderly retreat, at the battle of Monmouth. Der:f Vva!' S °' "•* ^''"' "«* = ^°- ''' °^^*- "^ ^- * ^o- <^-. ^««* = ^o. 7. MILITARY LAW AND PRECEDE]SrTS. 623 mand when about to be engaged ; " falling to succor, support, or relieve, another command, when ordered, or when circiunstances make it a duty ; " neglecting or refusing, when directed by a competent superior, or required by the nature of the duty devolved, to execute a movement or perform a service adverse, or with relation to, the enemy when in his front or neighborhood." 2. Such acts by any officer or soldier, as— refusing or failing to advance with the command when ordered forward to meet the enemy ; " going to the rear or leaving the command when engaged with the enemy, or expecting to be engaged or when under flre;" hiding or seeking shelter when properly required to be exposed to flre;» feigning sickness, or wounds, or making himself drunk, in order to evade taking part in a present or impending engagement or other 963 active service against the enemy;" refusing to do duty or to perform some particular service when before the enemy." Misbehaviour not necessarily cowardice. Misbehaviour before the enemy is often charged as " Cowardice ;" but cowardice is simply one form of the offence, which, though not unfrequently the result of pusillanimity or fear, may also be induced by a treasonable, disloyal, or insubordinate spirit, or may be the result of negligence or inefficiency." An officer or soldier who culpably fails to do his whole duty before the enemy will be equaUy chargeable with the offence as if he had deliberately proved recreant. Where the offence may be committed. The offence may be committed in a fort or other military post as well as in the open field,— as where an officer or soldier fails or neglects properly to defend or guard the post or its approaches, when threatened, attacked, or besieged by the enemy." The act of misbehaviour must be voluntary. The act or acts, in the doing not doipg, or allowing of which consists the offence, must be conscious and voluntary on the part of the offender. The mere circumstance that he is found in a condition of intoxication, when called upon to march or operate against the enemy, will not constitute the offence,'" unless such condition should have been induced for the express purpose of evading such service. "Before the enemy." This term is defined by Samuel as— "in the face or presence of the enemy." It is jiot necessary, however, that the enemy should be in sight. If he is confronting the army or in its neighborhood, 964 though separated from it by a considerable distance, and the service upon which the party is engaged, or which he is especially ordered or properly required by his military obligation to perform, be one directed against the " G. O. 58, Dept. of the Tenn., 1863. » See G. O. 18, 189, of 1863 ; Hougb, 341. "See G. O. 18 of 1863. » See G. O. 204 of 1863 ; G. C. M. O. 90 of 1864 ; Do. 421 of 1865. " See G. O. 146, 198, 204, of 1863 ; Do. 27 of 1864 ; G. C. M. O. 53, 134, 191, of 1865 ; G. O. 130, Army of the Potomac, 1862 ; Do. 22, Mountain Dept., 1862 ; Do. 21, Dept. of the Tenn., 1883 ; Do. 57, Dept. of the Gulf, 1864 ; Do. 37, Middle Dept., 1864 ; Do. 10, Middle Mil. Div., 1864 ; Do. 7, Dept. of W. Va._^ 1864 ; Do. 73, Dept. of Va. & No. Ca., 1864. " G. C. M. O. 114 of 1864 ; G. O. 22, Mountain Dept, 1862 ; Do. 21, Dept. of the Tenn., 1863; Do. 10, Middle Mil. Div., 1864. "See Samuel, 600; G. C. M. 0, 90 of 1864; G. O. 21, Dept. of the Tenn., 1863; also G. O. 37, Middle Dept., 1864 ; where the allegation of which the accused was con- victed, is — that he " did chew tobacco, and used other means to make himself sick, In a cowardly manner, that he might have an excuse for avoiding the coming engagement with the enemy." » See G. C. M. O. 90 of 1864 ; Do. 53 of 1865. " Digest, 40. Admiral Byng, while convicted of recreancy to duty before the enemy, was at the same time expressly acquitted of cowardice. « See Samuel, 596 ; also G. 0. 144, Army of the Miss., 1862. •Samuel, 687-& g24 MILITABT LAW AND PBBCBDRFTS. en«ny, or resorted to in view of his movements, Oie misbehaviour committed will be " before the enrany " in the sense of the Article. The " enemy " may be hostile Indltins, and the offence be committed In the course of warfare with Indians equally as In a foreign or a civil war." Defence. Beside negativing the facts charged, the accused may show in de- fence that in what he did he was acting under the orders or authority of a competent si^jerlor, or was properly exercising the discretion which Ms rank, command, or duty, or the pecuUar circumstances of the case, entitled him to use. He may also show that he Was suffering under a genuine and extreme lUness or other dlsabllty at the time of the alleged misbehaviour. Brave or efficient conduct in action or before the enemy, subsequently to the offence, (where the accused, after the conmiencement of the prosecution— by arrest or service of charges— has been permitted to do duty,) while it may be put in evidence in mitigation of the punishment, and should in general mitigate it very considerably, will not, strlctiy, constitute a defence." Nor will it con- stitute a defence, or scarcely an extenuation, that the accused did finally per- form the service required of him or otherwise duly conduct himself before the enemy, if, after having originally misbehaved, he was compelled to such service or conduct by peremptory orders or by the use or display of force." BTTNNING AWAY. This Is merely a form of misbehaviour before 965 the enemy, and the words "runs away" might well be omitted from, the Article as surplusage. Barker, an old writer cited by Samuel," says of this offence: — "But here it is to be noticed that of fleeing there be two sorts ; the one proceeding of a sudden and unlooked for terror, which is least blameablc; the other is voluntary, and, as it were, a determinate intention to give place unto the enemie — a fault exceeding foule and not excusable.'' SHAUEFUIiLT ABANDONINO A FOBT, POST, &e. Of this specific form of misbehaviour before the enemy, it is to be said that whether or not the abandoning Is to be regarded as " shameful " will depend upon the circumstances of the situation. Generally speaking, a commander is justified In surrendering or abandoning his post to the enemy only at the last extremity, — as where his ammunition or provisions are expended, or so many of his command have been put hers du comhat that he can no longer sustain an effectual defence, and, no prospect of relief or succor remaining, it api)earB quite certain that he must In any event presently succumb. Every available means of holding the post and repulsing the enemy should have been tried and have failed before a surrender or abandonment can be warranted, and. If the same be resorted to on any less pretext, the commander will be chargeable with the offence Indicated by the Article." In time of war nothing Indeed so fatally compromises the public in- terests, and nothing is so Inevitably made the subject of investigation and trial," « Digest, 40. In a case In G. O. S of 1857, the accused, a BOldler, was sentenced to be hung, on conviction of this offence, committed In an engagement with Indians. In later cases of this offence, in G. C. M. 0. 36 of 1879 ; Do. 33 of 1880, committed bj officers commanding troops during hostilities against Indians, the accused were sentenced to be dismissed. « See De Hart, 144 ; Ites, 100 ; Digest, 553. •• In G. C. M. O. 53 of 1865, a specification, (of which a soldier was convicted,) charges that having left his company while engaged in battle, be " had,^ to be threatened to be shot in order to make him rejoin it." And see G. O. 6 of 1867. "Page 601. »» See Samuel, 601-607 ; Simmons i 196 ; also the case of " the abandonment of Mary- land Heights and the surrender of Harper's Ferry," of which the result is published In G. O. 183 of 1862. ••See the Resolution of Nov. 28, 1777, (2 Jour. Cong., 384,) which provides that It shaU be " an established rule In Congress " to institute ftn Investigation to the ease at every fort or post abandoned, or taken by the enemy. MILITABy LAW AND PRECEDENTS. 625 as the premature or unueeessary yielding up to the enemy of a fortified post; and when the periods of siege which have to many cases been withstood are recalled, it will be appreciated how possible it may be found to protract a de- fence under circumstances of extreme privation and difficulty." 966 The " shameful " quality of an abandonment may be illustrated by the commander's unnecessarily leaving, to fall into the hands of the enemy instead of at least destroying them, valuable public stores under his charge at the post." The term " post," it has been said," " has reference to some point or position, whether fortified or not, which a detachment may be ordered to occupy, or which it may be its duty to defend." The term " guard " is general, but would appear to contemplate an advance guard, or other outer or special guard, rather than the ordinary interior guard of a camp or station. The abandonment of a picket post or line, without using every reasonable endeavor to hold it and to retard as long as practicabe the advance of the enemy, thus enabling the main body to prepare against his approach, would be a marked instance of the offence of abandoning a " post or guard " specified in the article. " WHICH HE IS COMMANDED TO DEFEND." This term is regarded as substantially synonymous vs^Ith that employed in the original Article of 1775 — " committed to his charge," or the fuller phrase of the corresponding British Article — " committed to his charge or which it was his duty to defend." It is conceived that, to constitute the ofEence, no express or specific Intruction to defend the post need have been given, but that it is sufficient if an obligation to make a defence was — as It could hardly fall to be — devolved upon the com- mander as a necessary or reasonable implication from the order which assigned him to the command,- or as a duty properly attaching to his position. SPEAKING WOBDS INDUCING OTHEBS TO DO THE LIKE. Upon considering together our original Articles of 1775 and 1776, In connection with the earlier British form and the comments thereon of Samuel" and Hough," the conclusion is reached that these words are most properly to be construed as referring not merely to the act of abandoning a post, &c., the designation of which Immediately precedes such words In the Article, but also and equally to Hie general offence of misbehaving before the enemy first therein mentioned and to the specific offence of running away ; in other words that " the 967 like " refers to any one or more of the acts previously mentioned in the Article. By "words," as here used, may be regarded as Included any verbal argu- ment, persuasion or threat, language of discouragement or alarm, or false or incorrect statement In regard to the condition or operations of the troops or the movements of the enemy, that, whether or not Intended to have such effect," may avail to bring about an unnecessary surrender, retreat, or other dereliction before the enemy. As where a subordinate officer falsely reported to his superior, commanding a picket line, that the right of the line was giving way, and thus induced or contributed to induce the latter to fall back with his entire command." « In the late Instance of Belfort, (1870-1,) the defence was continued for three months. At Sebastopol It was protracted eleven months. " See the case published in G. O. 144, Army of the Miss., 1862. "Simmons § 199. "Pages 607-609. And see O'Brien, 145. »si%\murf,^608-9; also case of Lt. Col. MuUins, " In reference to his conduct before New Orleans, in 1815." Simmons § 152. « G. O. 73, Dept. of Va. & No. Ca., 1864. 440593 O - 42 - 40 626 MILITABY LAW AND PRECEDENTS. It is held by Samuel" that the offence is equally committed whether the morda indicated " be used toward the commanding officer," or toward " the officers or troops under his command." The same writer," in holding that the teords must be " unwarranted or un- authorized," notices the point that words spoken—in favor, for instance, of a sorrendep— in a cowuiil of war, convened by the commander, will not render an officer amenable to a charge under the Article. CASTING AWAY ASMS OB AMMUNITION. This offence, which, from an early period of history, has been viewed as a most serious one, especially in time of war,* is, under the present Article, completed by the act Itself of "casting away," whatever its Inducement — whether it be to aid flight or re- lieve weariness, or a mere " wanton renunciation."" The term " his arms or ammunition," like the item " his horse, arms, clothing, or accouterments," em- ployed in Art. 17, Includes not only such arms, &c., if any, as may be personal property, but also such as have been furnished by the government to the 968 soldier for his equipment and use in the service ;" the latter being those mainly or almost exclusively contemplated, since It is only in rare cases, as sometimes among militia or volunteer troops, that the soldier will own his arm, &c. Where— as is thus the general rule — the arm or ammunition discarded belongs not to the offender himself but to the United States, the offence is aggravated ; and, in time of war, it is also aggravated by the further fact that the arm, &c., is likely to fall into the hands of the enemy. That the arm or quantity of ammunition which the party is accused of having cast away, was thrown aside at the order of a commander, in requiring his command to lighten themselves of impedimenta, in order to facilitate a more rapid retreat, when pursued by the enemy, or for other military purpose, will of course constitute a defence to the charge." QTTITTINa POST OB COLOBS TO PLTXNDEB OB PILLAGE. This of- fence, which, if permitted to l>e indulged in by troops, would convert legitimate warfare into mere marauding, and a disciplined military force into a band of stragglers and freebooters, is one of those which are regarded as the most Immediately fatal to the discipline and morale of soldiers, and as calling In all cases for severe punishment." It has been stigmatized as a grave military crime in all the codes of Articles from a very early period." The General Orders, published during the late war, abound with declarations of com- manders, denouncing and prohibiting pillaging and lawless foraging," and "Page 611. And see Hough, 362. "Page 609. And see O'Brien, 14B. » See Samuel, 588-591. " Samuel, 592 ; O'Brien, 146. >'Hougb, 336; Samuel, 592. •*See Samuel, 592. " Samuel, 585-6 ; Heath's Memoirs, 307. " See the early British Articles referred to at the commencement of the consideration of this Article. » " The whole country is overspread with straggling soldiers, who, under the most frivolous pretences, commit every species of robbery and plunder." Oen Washington, In G. O., Hdqrs. Totoway, Nov. 6. 1780. And see Q. O. 19, Army of the Potomac 1861 ; Do. 40. Id., 1862 ; Do. 18, Dept. of N. B. V«„ 1861 ; Do. 3, 21, Army of Occupa- tion, W. Va., 1861 ; Do. 19, SO, Dept. of the Cumberland, 1862 ; Do. 5, Dept. of the Sus- quehanna, 1863 ; Do. 15, Dept. of the Gulf, 1862 ; Do. 23, 27, Id , 1863 • Do 26 47 Dept. of the Ohio, 1864; Field Clrc. 2, Dept. & Army of the Tenn., 1864 ;" Do! lo". Army of the Tenn., 1865. In G. O. 26, Banks' Division, 1862, the Comdg. Gen. calls upon office™ "to remember the declaration of the great master of the art of war, that pillage IS the m»8t certain method of disorganizing and dertroylng an army " MUrlTABY LAW AND PRECEDENTS. 627 969 holding officers responsible for the conduct of their commands in this particular." Repeatedly is the distinction pointed out between the authorized taking of, or making requisition for, supplies or levying of contri- butions for the public use, in accordance with law or the custom of war, and the unauthorized and illicit appropriation of private property by officers', sol- diers, or camp-followers." In Europe, it may be observed, pillaging has almost disappeared from the practice of the armies of the civilized nations ; the dispensing in a great degree with camp-followers having had much to do with its disuse. Its absence was conspicuous in the " Seven Weeks War " of 1866, and in the Franco-Prussian War of 1870. In regard to the latter, a writer of authority " records—" The German armies were absolutely without marauders." The system of formal requisitions and receipts, observed by those armies in France, will be adverted to in Part II of this work. The term " post " is evidently used here in the most general sense, but as referring to a point for the time fixed. " Colors," on the other hand, Is viewed as referring mainly to a regiment or other body on the march or operating In the field against the enemy. To constitute the offense there must exist the aniimis indicated in the Article — " to," i. e. in order to, " plunder and pillage : " this animiis was ex- pressed still more clearly in the early form " by the words—" to go in search of plunder." It must be shown that the officer or soldier left the command with a view to the forcible seizing and appropriating of public or private prop- 970 erty; and whether private property sought to be taken belonged to persons hostile or friendly can In no manner affect the legal character of the offence." The intent being complete, it is not essential that the property should actually be taken : that it Is taken, however, will of course be the strongest evidence that the offender left his station for the purpose of taking it. The offence is no less committed though the quitting of the post, &c., is by a quasi authority ; as where soldiers go forth for the purpose of marauding under the orders of or in company with an officer or non-commlssloned officer. In such a case, the act of the superior being prohibited and lawless, the legal offence of the soldier is as complete as If he had proceeded alone and of his own motion : his punishment, however, will properly be less severe than that adjudged his superior. PU'IITSHMBIJ'T. The offences denounced by this Article, occurring as they mostly do in time of war, and generally in the presence of the enemy, and in- volving the gravest violation of orders or of the military obligation, have always been made punishable with the extreme penalty of death." Formerly, for the " G. O. 3, 21, Army of Occupation, W. Va., 1861 ; Do. 30, Dept. of the Cumberland, 1862- Do 15, Dept. of the Gulf, 18«2 ; Do. 23, Id., 1863. "An officer who permits" Buch acts " IB equally as tfuilty a« the actual pillager." G. O. 107 of 1862. (Gen. Hal- leck ) In this connection see 1 Jour. Cong., 268 ; also Halleck, Int. Law, 442, 461. " On this subject, see remarks of Gen. Halleck, In G. O. 107 of 1862 ; also Do. 109, Id • Do 23 42 Dept. of the Gulf, 1868 ; Field Clrc. 2, Dept. & Army of the Tenn., 1864. in G. O. 3, Army of Occupation, W. Va., 1861 ; Do. 19, Dept. of the Cumber- land, 1862,— teamsters and camp^ollowers are Indicated as especially liable to the charge of taking plunder. And see O. O. 2, Dept. of Va., 1861. As to the Uvying of contmutiom, see par. 1076, Army Regulations of 1881 ; G. 0. 18, Dept. of the Rappahannock, 1862 ; Dlo»8T, 470 ; and po»t. Part II—" Military Gov- ernment." "Edwards, "The Germans in France," p. 258. "Art. 30 of 1775. _ ^ ,^^ ^ , » So " the penalty is the same whethW the offence be committed In our own or In an enemy's territory." G. O. 167 of 186X (Gen. H«Heck.) "GO. 23, Dept. of the Gulf. 1863- remarks of Gen. Banks. 628 MHJTABY 3jAW AND PBECBDENTS, crime of misbehaviour before flie enem^, this punishment was executed at the will of the commander, aad withoirC trial ; " and when this crime was committed conjointly by any considerable number, their decimation, or the summary taking of the life of every tenth man, was autberiaed by the Boman law." Indeed, the stem necessity of war will at any time justify a commander In shooting down the leaders of a body of troops who abandon their colors during an engagement, if otherwise their revolt cannot efEectually be suppressed ; and a similar extreme measure will be warranted in cases of individual soldiers separately guilty of gross and conspicuous cowardice or misbehaviour In battle, of attempted deser- tion to the enemy, or of violent or aggravated acts of plunder or pillage, 971 where peremptory orders to desist are unavailing, and the commander has no efEectual means of restraint within his power. Such summary proceedings are of course of : rare occurrence^ Courts-martial, however, when offenders of this class have been brought before them, have not hesitated to inflict the death penalty," and during the late war of the rebellion capital sentences were repeatedly adjudged for marked cases of violation of this Article." In cases of officers, dismissal has been almost invariably imposed, and in some instances there has been added disqualification to hold office." In one case a lieutenant was sentenced to be reduced to the ranks." In several cases the dismissal (rf the officer or discharge of the soldier has been made ignominious by requiring that the same shall be accompanied by a stripping off of Insignia of rank, drumming out, shaving of the head, placarding with the word " coward," or branding with the letter " G." " The matter of the direction In the sentence as to the publication in the news- papers of the particulars of the case, upon a conviction for cowardice, 872 and the discontinuance thereupon of social relations between other officers and one who has been dismissed for such offence — has heretofore been noticed as enjoined in the 100th Article. FOBTT-THIBD ARTICLE. NATTTRE OF THE OFFENCE. This Article, which has undergone no ma- terial change since 1775,* refers, according to Samuel," to the using " of direct •> See Samael, 594. •> LlviuB, lib. 2 : Tacitus, an; 3 ; Samael, 695, 600. Tbls punishment was also pre- scribed In Arts. 60, 67 and 73 of the Code of Gustavus Adolphus, and Art. S of James II. "G. O. 5 of 1857. In G. O., Hdqrs., Steenraple, Sgpt. 12, 1780, Gen. Washington gives notice of the execution on that afternoon of a soldier convicted, by general court-martial, of " plundering an inhabitant of money and plate." « See cases published in G. O. 134, 317, of 1863 ; Do. 64, and G. C. M. O. 90, 272, 270, of 1864 ; Do. 91 of 1865 ; G. O. 22, Mountain Dept, 1862 ; Do. 40, Dept. and Army of the Tenn., 1864 ; Do. 174, Dept. of the Mo., 1864. •• 6. O. 18 of 1863 ; Do. 21, Dept. of the Tenn., 1863. " " To serve three years or during the war." G.. O. 27 of 1864. «G. C. M. O. 107, 124, 126, 191, 332, of 1865; G. O. 73, Dept. of Va. & No. Ca., 1864. Hough, (p. 346,) cites a case of an Afficer sentenced, upon conviction of misbehavior be- fore the enemy, — to be dismissed, and to have his " coat and commission torn before his face, his sash cut into pieces, and his sword broken over his head in the most public manner." Samuel^ (p. 599,) mentions a case of "an adjutant general," Sentenced, . for cowardice-^" to be cashiered, and his sword to be brol^en over his head, and that he should do the duty of a swabber in keeping clean the hospital ship of the fleet." In our " additional " Article, No. 12 of 1775, it was prescribed, for the offence of leav- ing post, &c., to go In search of plunder, that officers should be " cashiered and drammed out of the army with infamy," and that enlisted men should be whipped with from twenty to thirty-nine lashes, and, further, th4t al} offenders should " forfeit all share of the plunder " taken. " The word it. after " giye," found In the original Article, has apparently been Inad- vertpntly omitted In the present form, and must therefore be nnderstood. ™Page 608. MILITARY LAW AND PKBCEDENTS. 629 force or compulsion," m contradistinction to the use of the "Influence or per- suasion " Intended by the previous Article In the act therein specified of speak- ing words inaucinp the abandonment of a post, &c. The compulsion need not consist in the use of actual violence or force. An absolute refusal to obey orders or do duty, or to participate tn any further measures of defence, might be as effectual a form of compulsion as if physical constraint were resorted to. Of the offence Samuel further writes : '°— '' This amounts to a plain and palpable act of mutiny, being nothiiig less in effect than tie supercession, or the assumption and exercise by force, of the powers of the governor or commanding officer, by his refractory troops." The moving cause or aniwus of the act, whether Insubordination, cowardice, tr«ichery, &c., is quite immaterial.'" It is observed by O'Brien " that—" no amount of suffering, privation, or sickness, to which the garrison may be exposed by the firm Intrepidity of the commander, will avail as an excuse for the crime." No instance of a trial for the specific offence made punishable by this Article is known to have occurred in our army." 973 XIX. THE FORTY-FIFTH AND FORTY-SIXTH ARTICLES. [Relieving, and Communicating with the Enemy, &c.] " Abt. 45. Whosoever relieves the enemy with money, victuals, or ammunition, or knowingly harbors or protects an enemy, shall suffer death, or such other punishment as a court-martial may direct. "Abt. 46. Whosoever holds correspondence with, or gives intelligence to, the enemy, either directly or indirectly, shall suffer death, or such other punishment as a court-martial may direct.", ORIGIN OF THESE ARTICLES. These Articles may be traced to Arts. 3 and 4, Sec. II, of Charles I, Art. 8 of the Code of James II, and to Arts. 67, 70, 71, 76 and 77 of Gustavus Adolphus. In the American military law, they first appear as Arts. 27 and 28 of 1775. THIS CLASS OF OFFENCES COMPARED WITH TREASON. Treason as such is not an offence properly cognizable by a court-martial." The offences, however, which are the subject of these two Articles are treasonable in their nature and are characterized by Samuel" as "overt acts of treason;" by O'Brien " as " closely allied to treason." Our Constitution, (Art. Ill, Sec, 3 § 1,) declares that — " Treason against the United States shall consist only In levying ig ar against themT^STTir^SffiKFini'to^ their 'eneini®;;;^!?^ ana" cow- fort." Whenever, therefore, an overt act of the class specified in these Articles gives substantial aid and comfort to the enemy, and thus evidences, so far forth, « See HonglJ, 359. ^ ^ ^ „ . "Page 148. But compare, In this connection, Art. 73 of the Code of Gustavus «In 1862 twelve officers were, wtthout trial, summarily dismissed by order, (Q. O. 120 War Dept ) for publishing a card stating that they had advised their regimental commander (previously similarly dismissed,) to surrender his post to the enemy. "See Gen Hull's Trial, p. 118; Jn re Stacy, 10 Johns., 333; Proc«s du Marechal Ney, Part IP 70, and Part 11 p. 33; also G. O. 1, Dept. of the Mo., 1862; Do. 150 Dept of the Ohio, 1863; Do. 27, Dept. of the Northwest, 1864. "Treason" has somet mes been chareed before military commissions, and. In the English practice, before courts-martial TeW^^dTr marTlal "w-as In Wolf Tone's case and the case of Geo. W. Gordon in Jamaica. See Past II. "Page 577. And see Id., p. 688. "Page 146. 630 MILITABY LAW AND FBBCEDENIS. an adherence to his cause, It can scarcely be regarded as less than an act 974 of treason," It may thus happen that an offender whose crime has been committed upon the theatre of war, and who is therefore amenable to trial as for a military oifence under one of these Articles, may at the same time be liable to an indictment for treason. A yiolation of the Articles, however, will not amount to the latter off^ice, in the absence of the requisite animus implied In the constitutional definition." COITSTBTTCTION OF THE TEAM " TVHOSOEVEB." The subject of the interpretation of this initial word of the two Articles, as indicating the classes of persons made amenable thereby to trial by court-martial for the offences therein specified, has already been considered In Chapter VIII on Jurisdiction. FOBTT-FIFIH AbTICLX. THE OFFENCE OF BELIEVING THE ENEMY WITH MONEY, VICT- UALS OB AMMUNITION — "Believes." This word is evidently employed not merely in the restricted sense of alleviate or succor, biit also in that of assist. In the connection in which it is used it may be construed as substan- tially equivalent to furnish or supply. The mere giving or selling to the enemy of any of the things specified, though the same may not really be needed by him, Is so far an assistance rendered him, and thus an offence within the Article. That the article furnished is exchanged for some commodity returned by the enemy does not, as noticed by the Judge Advocate General," affect the legal quality of the act. 975 It Is to be observed that the enemy must be actually relieved — reached by the succor or assistance tendered. An attempt to relieve him, not successful, will not constitute the specific offence. " The enemy," This term does not necessarily refer to the enemy's govern- ment or army, nor is It required to constitute the offence that the relief should be extended directly to either : it is sufficient if it be furnished to a single citi- zen or to citizens, or to a member or mwnbers of the mlUtary establishment, in his or their individual capacity ; " the words thus admitting of the same import as the term " an enemy " which occurs subsequently in the Article. In the lan- guage of Chief Justice Chase of the U. S. Supreme Court,—" all the citizens or subjects of one belligerent" are "enemies of the government and of all the " See RespubUca v. Carlisle, 1 Dallas, 30, a case of an Indictment for treason, for giving intelligence to the ettemy, *c. ; also U. S. v. Pryor, 3 Washington, 234 238 where the court speaks of a form of treason as—" an adherence to the enemy by supplying him with provisions." In a charge to the grand Jury of the U. S. Circuit Court, in Nov., 1861, reported In 5 Blatchford, 549, 550, Nelson, J. clearly sets forth that giving IntelU- gence, sending provisions or money, and furnishing arms or munitions to the enemy, are » r^^/*"*," . *i?T°- '*■'"* "** ^" '■* ^^"^^ ^O J«»""i-. 332 ; Jones „. Seward, 40 Barb. 563, also 4 Black Com., 82, (and Christian's note;) Hensey's Case, 1 Bur., 650; Btone s Case, 6 Term, 527. whTJu.'tiTr'""'"'"* %"? '" ^''*°"' '" "^"^ *° "*"«" P»^«ly ^od^^ or domestic, l^lr Art 4^R % """%"? ''TT' ^'""''' "°'*'' ^"^^ authorized, Constitute an offence under Art. 46 (See post.) In Pottrell v. German, 5 Cold., 280, it was held not to be reason to relieve the sick and wounded of the enemy by renting a building for a hospltM ..^'"^f °^f .!?" "'*°"''' army-an act, however, which might be regarded as coming '-'"^s^et rrsi^'^rrMis^si't^ir^ - ---- -«" -»«•>-'-' ^^ " Bdwird Iirfrom'wM"'.;' "' ™'"°''*'' *" *"• ^'"'«'" "*»*"** "ealnst treasons, the 25th defined 4 Black Com 83"%^""""^^^^"'"""' °° *^« ^"""^ «"««<=* •= *«''». 1« and our own fellow-subjects when in actual rebeUlon." MILITAKY LAW AND PRECEDENTS. 631 citizens or subjects of the other," both in " civil and International wai-s " " Relief, therefore, afEorded to Individuals is relief to enemies,, and, so far forth also, relief to the enemy considered as a nation or government. It need hardly be remai-ked that the term " the enemy," or " an enemy," does not include enemies regularly held as prisoners of war; such, while so held, being entitled, by the usages of civilized warfare, to be furnished with sub- sistence, quarters, &c.'" It would Include, however, a prisoner of war who has escaped and while he Is at large," as also one who, having been made prisoner of war, has been paroled, and Is at large upon hiS' parole." 976 The term under consideration embraces also— as has been specifically held by the Attorney General "—an Indian tribe or band In open hostility to the United States. " Money, victuals, or ammunition." In this enumeration the Article is bald and Imperfect. Some such addition as or other thing, or or othertoise is required to complete and render fully effective the enactment." " Money " in- cludes of course either metallic or paper currency, as also money Issued by or current with the enemy as well as money of the country of the accused. As held by the Judge Advocate General," the furnishing of money to the enemy Is no less a relieving of him where a consideration is received in return than where the amount supplied is a free gift. And convictions have been had, under the Article, for relieving the enemy with money, by purchasing (with money paid) cotton from agents of the Confederate government," as also by similarly purchasing Confederate bonds." " Victuals " Is defined by Hough to be "any article that will support life;" and he concludes that all wines, spirituous liquors, " and even water are Included In the term."" In the re- ported cases occurring during the late war, the most usual form of furnishing an enemy with victuals was for the accused to entertain him at meals at his residence." As to " ammunition," no sufficient grounds are perceived '^ The Venice, 2 Wallace, 418. And see The Prize Cases, 2 Black, 666 ; also case of Mrs. Alexander's Cotton, 2 Wallace, 274 ; Gooch >i. U. S., 15 Ct. CI., 287-8. The term " the enemy " Includes not only clvilianB, soldiers, &c., but also persons who, by th6 laws of war, are outlaws — as " guerillas " and other freebooters. See O. 0. 30, Dept. of the Mo., 1863. "Compare Hough, 328. " See the case of harboring, &c., an enemy, published In G. O. 88, Mil. Div. W. Miss., 1864, where the person harbored was an escaped prisoner of war. "* In the leading' case of B. G. Harris, a member of Congress from Maryland, the re- lieving by the accused, with money, of two soldiers of the army of the enemy, at large under their parole as prisoners of war, and unlawfully within our lines, was considered by the court to be, as charged, an offence under Art. 45, and the conviction and sentence of the accused accordingly were duly approved. G. C. M. O. 260 of 1865 ; also Proceed- ings published In Ex. Doc, No. 14, H. of E., 39th Cong., 1st Sess. And compare 11 Opins. At. Gen., 204. » 13 Oplns. At. Gen., 470. " In the early Resolution of Congress, in pari materia, of Oct. 8, 1777, the partidttlars are stated as — " supplies of provision, money, clothing, arms, forage, fuel, or any kind of stores." 2 Jour. Cong., 281. "DlGBST, 41. ""G. O. 14, Mil. DlT. W. Miss., 1866— where the accused Is convicted of having paid to the enemy's agents about $500,000 for cotton. " See G. O. 78, Mil. Div. W. Miss., 1864. "Page 327; Id., (P.) 158. In a case published In G. O. 27, Mil. Dlv. W. Miss., 1865, the enemy was relieved with " flour, coffee, oil, wines and whiskey." " See G O 76 175, of 1863 ; Do. 51 of 1864. Also G. C. M. O. 260 of 1865, where the accused procured two rebel soldiers to be fed at the house of a neighbor. In the cases of two women convicted of this offence by military commission, published In G. O. 148, Dept. of the Mo., 1863, the enemy. (" buihwliackers,") were reMeved by sending and carrying victuals to them in the woods. 632 MILITABY LAW AND PKECEDBNTS. 977 for ascribing to this word a meaning larger or other than that which it bears in common military parlance." THE OFFENCE OF KNOWINGLY HABBOBING OB PROTECTING AN ENEMY. This offence may be defined as consisting mainly in receiving and lodging, sheltering and concealing, or shielding from pursuit, arrest, or "any injury which in the chance of war may befall him,"" a person known- as, or confidently believed to be, and who Is in fact, an enemy. If the party harbor- ing, &c., is in no mapner apprized that the other is an enemy, the specific offence is not committed ; -but where the circumstances are such as to induce the Inference that he is or may be an enemy, it will be for the accused to rebut the presumption that he had the knowledge contemplated by the Article. In the cases as published in General Orders, this offence has commonly been committed by lodging or procuring lodging for officers or soldiers of the enemy's force," or by concealing them, and denying their presence or refusing to furnish any information of their whereabouts." PROOF. It must of course appear that a status belli prevailed at the date of the offence, but of the existence of such status the court will ordinarily take judicial notice without proof. Where it is doubtful whether the war had begun at the time of the offence, or had not ended before such time or the time of the ordering of the court, it may be necessary to put in evidence the action of Con- gress or the Executive in declaring war, announcing the recurrence of peace, &c. A state of war being admitted or established, the fact that the party 078 relieved, &c., was an enemy will be exhibited by evidence that he was a member of the military force of the enemy, or a citizen or resident of the enemy's country. DEFENCE. The only justification of an act made punishable by this Article would ordinarily be the order or sanction of a competent military superior," or an authority conferred by an Act of Congress or the President." PUNISHMENT. This, being in the discretion of the court, will commonly be not severe where the relief or harboring is but slight or for a very brief period, or where it is rendered to a destitute person ; and will ordinarily be less severe where assistance is rendered to an individual for his personal benefit than where it is rendered to the government or the army of the enemy. But In every case the animus of the offender will properly be the most material circum- stance to be considered in awarding the punishment. Where his act has pro- ceeded from, or illustrates, a strong sympathy on his part with the cause of the enemy, or a marked animosity towards his own government, he will merit a much heavier penalty than where he was actuated mainly by an impulse of "The view expressed by Hough, (p. 328,) that "ammunition" was synonymous with vmnitioH, and included arms and other matiriel of war, does not seem to have been favored by other authorities. "Hough, 328. •* See cases, cited In note ante, of relieving an enemy by entertaining him at meals, — In which cases he was generally also lodged. » See two cases In G. O. 52, Dept. of the Ohio, 1863. In a case In G. O. 88, Mil. Div. W. Miss., 1864, a seaman was convicted of harboring and protecting a prisoner of war, " by hiding him In the hold of- the ship to enable him to escape." " Samuel, 578-9 : G. O. 78, Mil. Div. W. Miss., 1864. "See the Act of July 13, 1861, authorizing the President to permit commercial Inter- course with persons In the insurrectionary States, under which it was held by the Supreme Court, (5 Wallace, 630; 6 Id., 521,) that the President was alone empowered to license such Intercourse, and that a military or naval commander was not authorized to do so. MILilTABY lAW AND PRECEDENTS. 633 hospitality. Capital sentences were rarely Imposed for violations of this Article during the late war ; imprisonment and fine being the forms of punish- ment usually resorted to." FOBTY-SIXTH AeTICLB. THE orPENCES HADE PUNISHABLE. This Article makes capitally punishable by sentence of court-martial the two distinct acts of holding 979 correspondence with, and giving intelligence to, the enemy ; and all mate- rial communications made to the enemy will be found to be included within the one or the other description. The terms " whosoever " and " the enemy " have already been construed under the preceding Article. HOLDING COKKESPONDENCE WITH THE ENEMY. The word " cor- respondence " is understood to be here employed In its usual and familiar sense, as intending written communications, especially by letter, and embrac- ing of course communications in print and telegrams. The term, however, is not to be viewed as implying that there has been, or should- be, a mutual inter- change of letters or communications between the accused and the enemy; nor is it necessary that the communication which is the occasion of the charge should be an answer to a previous one from the party to whom it is addressed. The offence may consist in the sending of a single letter, and this may be the first and the only one that has passed, or been attempted to be transmitted, between the parties. Any correspondence with the enemy being a violation of the absolute rule of non-intercourse pertaining to a state of war, the Article, naturally, does not characterize the correspondence, the holding of which is made punishable, as treasonable, hostile, injurious, Ac.,** but makes it an ofEence to hold any corre- spondence whatever. Not only therefore is correspondence by which valu- able information is imparted or Important public business transacted, as well as correspondence calculated to stimulate or encourage the enemy,"" properly chargeable under the Article, but also correspondence of a comparatively harm- less character — as the writing of a letter relating to private or domestic affairs.* And so of the communicating to the enemy of supposed facts, which however are not true and do not therefore amount to the giving of inteUlgence.' It is further to be observed that the crime is complete in the writing or 980 preparing of the letter or other communications, and the committing it to a messenger, or otherwise putting it in the way to be delivered. It is not essential that It be received by the person for whom it is intended, or that it reach its place of destination. If it be intercepted while in transitu, the legal character of the ofEence wiU not be affected/ « An instance of a capital sentence is found In G. O. 76 of 1863, where, ••"weje'. the same was commuted by the President to Imprisonment during the war at Port Delaware. Instances of sentences of .conflnement at hard labor for twenty years occur In q. O. 14, 2? MU Di' W. Mis?., 1865. In the case of Harris. (G. O. 260, of 1865.) the offender big an official persoi. (member of Congress.) disqualification for office was added to ""-T„°thT-' additional " Article of November, 1775, the offence was described as " holding " T^TZ: Tg! o! m^Dept. of the Mo.. 1864; also case., (tried by a military com- "ft^L'of'coVse'suTcoC^nrie^r expr^^^^ author.ed by t.e Government. "-^■i:r;olt,Tto -Offence o,^... ^^T^'^r^l^T^^^. 580; BespubUca ». Eo'b^rrrDr;. i2rDi'rio ■'::;«« ^ «. a, m Popt of the mo.. 1864; Do. 182, Dept. of the Gulf, 1864. 634 MILITARY LAW AND PKECEDENTS. OIvmG INTELLIGENCE TO THE ENEMY. This offence will consist In cojnmumcating to the enemy, by personal statement, message, letter, signal or otherwise,* information in regard to the number, condition, position, or movements of the troops, amount of supplies, acts or projects of the government in connection with the conduct of the war, or any other fact or matter that may instruct or assist him in the prosecution of hostilities.* Of the specific instances of a direct violation of this Article which have been made the subject of trial, some of the principal, as published in General Orders, are — the furnishing to the enemy a plan of the defences of a military post;' the pointing out to enemy's cavalry the road by which a herd of government cattle had been driven to avoid capture, and stating that the same was without a guard ; ' the writing and sending letters to a person in the enemy's service In which information was given of the movements of troops and of Intended military operations;' and the giving of similar Information to scouts of the enemy.' It is necessary that the enemy shall hav* been actually informed. If there- fore the intelligence falls to reach him, this offence is not completed, 981 though the offence of holding correspondence may be." It would seem also that the facts communicated should be in part at least true, since, If they are entirely false, intelligence cannot be said to be given. " EITHER DIKECTLT OB INDIRECTLY." These words are construed as applying to both the acts made punishable, not to the last one only. The modes of holding correspondence and giving intelligence already instanced l^ave been mainly of a direct character. It was, however, the indirect modes which, during the late war, — as in previous wars," — ^principally exercised the vigilance of our military authorities. The proceeding of this sort which, it was found especially necessary to denounce and prohibit was the publication in news- papers of particulars in regard to £he numbers, organization, position, opera- tions, &c., of the army, by which information might readily be communicated to the enemy ; " and in several Instances the offence thus committed was made the subject of charges under the present Article," or of trial by military com- mission." The publishing by way of advertisement In -newspapers, of " Per- sonals," by means of which an indirect correspondence was maintained with individuals within the enemy's lines, was also expressly prohibited." FBOOF. In addition to what has already been said on this subject, (Includ- ing the observations tinder the previous Article — apposite here also — as to the * See case in G. O. 26, Dept. of Va. & No. Ca., 1864, in whieh a soldier guarding a prisoner Is charged with allowing the latter to escape for the purpose of having him copamunlcate to the enemy valuable information. Art. 8 of James II made punishable the giving of Intelligence " either by letters, mes- sages, signs, or tokens; or in any manner of way whatsoever." ■The intelligence may be of a negative character. Thus In Stone's case, 6 Term, 827, the sending to the enemy a paper containing reasons for not invading Ehiglaod was held to constitute high treason. •G. O. 242 of 1863. 'G. O. 250 of 1863. •G. O. 371 of 1863. • G. O. 1B7 of 1864. » " It is essential to the offence of giving intelligence to the enemy that material Infor- mation should actually be communicated to him." Diqbst, 42. " See 6. O. of Nov. 27, 1812 ; Tnlloeh, 40-41. " G. O. 67 of 1861 ; Do. 151 of 1862 ; Do. 125, Army of the Potomac, 1862 ; Do. 29, 48, Id., 1863 ; Do. 44, Id., 1864 ; Do. 48, Dept. of the Mo., 1862. " 6. O. 10, Dept. of Washington, 1863 ; De. 13, Dept of the Tenn., 1863. *• G. O. 29, Arm? of the Potomac, 1868. » G. O. 10, Dept of the Bast 1865. MILITARY LAW AND PRECEDENTS. 635 proper evidence of the existence of a state of war, &c.,) It may be added that where the correspondence has been carried on, or Intelligence supplied, by a written communication in the handvoriting of the accused, it will be necessary to prove this in the usual mannner, as indicated in the Chapter on Bvi- 982 dence. Where the communication is in ci/pher, the possession of a key, or a knowledge of and ability to employ the cipher, must ordinarily be brought home to the party." DEFENCE. The general principle laid down as applicable to defences to charges under the 45th, is apposite under the present Article. Under a charge for holding correspondence, where the communication re- ferred solely to private or domestic afCairs, it would be a good defence to show that the same was authorized under regulations such as those which prevailed during the late war, by which communications of such a character were per- mitted to be exchanged with the enemy through the lines at Fortress Monroe. A not unusual form of defence to a charge of giving intelligence to the enemy, (especially where it was verbally and personally communicated to the enemy in his presence,) has been that the same was furnished under duress. But to constitute this defence, the duress must have been such as to put the party in reasonable fear of present death if he refused to give the information required of him. Any form of bodily constraint or injury, not Immediately endangering life, although it might be admitted in evidence in mitigation of punishment, would not amount to a defence in law. Thus, neither the mere presence of a force of the enemy sufficient to overpower the party and destroy him, nor the ordering him peremptorily to furnish the information desired, nor the imprisoning of him until he should disclose facts within his Knowledge, would constitute the defence of duress, where his life was not seriously threat- ened or otherwise put in actual peril." FUNISHMEITT. The penalty to be awarded will properly depend upon thp animus of the offender, whether treasonable, treacherous, or sympathetic 883 with the enemy's cause, or comparatively Innocent of any such feeling; upon the matter of the communication — whether beneficial to the epemy, authentic and original, or mounting merely to hearsay or rumor;, upon the manner and form of imparting It — as whether it be communicated to the enemy's government or its official or military representative, or to a private individual, &c. The death penalty has sometimes been adjudged in our prac- tice for a violation of this, as of the previous. Article," but imprisonment has been the more usual punishment." In some cases the sentence has required that the accused be sent without the lines of the army." "In Smlthson'B Case, (G. O. 371 of 1883,) the letter conveying intelligence, to Ike enemy was signed with a fictitious o-me and enclosed in an envelope addressed in cipher. See also a case of writing a letter with a fictitious signature in G. O. 203, Dept. of the "'see the analogous case of entering the military service of the enemy tinder duress, in Respublica v. McCarthy, 2 Dallas, 86; U. 8. t,. Vlgol Id., 346 ; IT. S. ^ Grelner, 4 Phllad., 396. And compare D. S. v. Hodges, Brunner, 465. See also, to this connec- tion, the comments of the Secretary of War upon the findings in Cashell s Case, to G. O. 250 of 1863. „ „ , <,«« »• O O 106 157. of 1864 ; Do. 67, Dept. of the Gulf, 1866. »ln a case pubiished in G. O. 14, Mil. Dlv. W. Miss., 1865, the sentence Is conflne- "■-Th^sTatt in gT58. dI;?: of the Mo., 1863, the sentence was-" To be sent Soutl^iond th"" nL of the Federal forces." And see a almllar sentence in G. O. 13. Deirt. of tlie Tenn., 1863. 636 MttJTAEY LAW AND PBEOEDBNTS. XX. THE FORTY-SEVENTH, FORTY.BIGHTH, FORTY-NINTH, FIFTIETH, AND FIFTY-FIRST ARTICLES. [Desertion and Kindred Offences.] " Abt. 47. Any officer or soldier who, having received pay, or having teen duly enlisted in the service of the United States, deserts the same, shall, in time of war, suffer death, or such other punishment as a court-martial may direct; and in time of peace, any punishment, excepting death, which a court-martial may direct. "Abt. 48. Every soldier who deserts the service of the United States shall Be liable to serve for such period as shall, toith the time he may Jktice served previous to his desertion, amount to the full term of his enlistment; and such soldier shall be tried iy a court-martial and punished, although the term of his entistment may have elapsed previous to his being apprehended and tried. " Abt. 49. Any officer who, having tendered his resignation, quits his post or proper duties, without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of the same, shall be deemed and punished as a deserter. " Abt. 50. No non-commissioned officer or soldier shall enlist himself 984 in any other regiment, troop, or companj/, ^Dithout a regular discharge from the regiment, troop, or company in which he last served, on a penalty of being reputed a deserter, and suffering accordingly. And in case any officer shall knowingly receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to be a deserter, 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. " Art. 51. Any officer or soldier who advises or persuades any other officer or soldier to desert the service of the United States, shall, in time of war, suffer death, or such other punishment as a court-martial may direct; and in time of peace, arvy punishment, excepting death which a court-martial may direct." Fobtt-sevbnth Abticle. PBEVIOUS LEGISLATION. This Is Art. 20 of the code of 1806, not mate- rially modified, and — consoUdated with it — the Act of May 29^ 1830, c. 183, prohibiting the imposition of the death penalty for desertion committed in time of peace. In the code of 1775, desertion and absence without leave were made punishable by provisions of the same Article— No. 8. In that of 1776, the two provisions were embodied in separate Articles, that relating to absence without leave, (now contained in Art. 32,) following next after that relating to desertion. In the British law, deserttoh— formerly declared a felony by statute," and therefore not made punishable as a military ofCen<;e in the earlier mlUtary codes— is now, (as with us,) a purely miUtary offence cognizable, only by wJurt-martial.'' « Desertion, which was originally a civil offence In the English law, (s« »amed, his desertion will date from the commence^ ment of the unauthorized absence. "An absence of an hour was held sufficient where the accused was pursued and aoore- hended In the act of flight. G. C. M. O. 33, Dept. of the Mo., mo. "hat the abs^^ need only be for a brief period, compare In re Grimley 137 o S 147 aosence "^.Xll^TZnTctf^,^"'' '° ^- ""■ "• ^--^-^o"^>^ Army Corps, 1864. " See O'Dowd, 56. *" Samuel, 323; Simmons.; 182; Manual, 20 •f Hough, 142. "Simmons f 816; Hough, 138: Pioon & Tol I'io. n r, on ^ ^ . . 1869; G. C. M, O. 52 of 18r7; (Lleit. Fleming's case!) ' ' ''• ^''' °''"- ■" '""^ ^'»"*' MIIJXABY LAW AND PRECEDENTS. 639 to comrades Ac, declaring an Intention not to return; hl^ assuming, during absence a false name, or resorting to other means to conceal his iden Ity and avoid detection; his being apprehended at a long distance from his station - his being pursued and overtaken when in evident flight; his being found, 'on arrest, dressed wholly or partly In civilian's clothes," or otherwise disguised his resisting arrest; his denying, upon arrest, his identity, making falseT contradictory statements, or falling to explain satisfactorily his absence" his surrendering himself as a deserter, &c. . " » CONSTRXrCTION OP THE ARTICLE-" Having received pay or hav- ing been duly enlisted." These words are evidently Intended to include all persons who, as officers or soldiers, have entered into a tormal or informal en- gagement or enlistment, as evidenced by their written contract or by the receipt of pay or otherwise, to render military service to the United States." In what consists, an enlistment has been considered under the " Second Article." " In time of war." This term, as employed in the Articles of War, has al- ready been construed as Including not only foreign or civil war but a period of hostilities against an Indian tribe. "A court-martial." Under this general description, desertion, (com- 989 mitted in time of peace, when It is not a capital offence,) may legally be taken cognizance of by a regimental or garrison court. In view, how- ever, of the limited power of sentence vested in Inferior tribunals by Art. 83, cases of desertion are invariably referred for trial to general courts -in time of peace equally as In time of war. CHABGE. Forms of charges of desertion are given In the Appendix. It need ony be observed here that the specification, In addition to the averment of the desertion, will properly set forth the date of the enlistment of the ac- cused and state whether he surrendered himself or was apprehended. FLEA. The subject of pleading guilty, under a charge of desertion, to the lesser offence only of absence without leave ; as also the subject of the intro- duction of evidence In connection with the plea of guilty of desertion, and of the relation between the "statement," (If any,) and the plea where such plea is Interposed — have been considered in Chapter XVI. The special plea of the statute of limitations in cases of desertion has been treated of in the same chapter. FBOOP. In order to substantiate a charge of desertion under this Article, it is necessary to establish — 1, The fact of the due enlistment of the accused, or of the receipt of pay by him ; 2, The fact that be absented himself without authority ; 3, The fact that he did so with the intention not to return. The onus of proving each of these facts rests upon the prosecution. Proof of enlistment or receipt of pay. It will rarely be necessary to pre- sent this part o( the proof in a formal manner. The accused indeed — if no question of identity is raised — ^will generally admit of record, or not contest, the "But that desertion cannot "Invariably be Judged by distance" — sec Simmons i 183, repeated in Manual, 21. " Samael, 323 ; Hough, 137 ; Plpon & Col., 1*» ; Manual, 20, 21 ; O'Brien, 96 ; G. O. 91, Army of the Potomac, 1863. " G. O. 91, Army of the Potomac, 1863 ;• Do. 33, Dept of the Northwest, 1864 ; Sim- mons § 878. "The view of O'Brien, (p. 96.) that, of these words, those alluding to the receipt of pay were intended to apply rather to officers than to soldiers, is not sustained by a ref- erence to the history of the Article as derived from the British Mutiny Act. The pres- ent phraseology would be simpUBed and improved by omitting altogetber these words, and making the Article read— A«y offlcer or soldier who desertt the miUtary tervUx of th« United Btatee shall, . Gould, 2 H.^1;' 6^- ^ j ^^^ mo., 1862. the death penalty (com- »I„ the case, above f ^^' '° <^, ^„ 'j^pXnment) was adjudged a corporal convicted muted by the '^^^T'"^ authority to l^^^^^^^^ ^^ ^ ^^^^ ^^ ^ ^ ^ ^ ^g ^^ j892_ :L^^;f„L'r t/raUedt; the^t t^at the advice was given by a senUne^ to a prls- oner under his charge. 656 JOLITABT LAW AND PBECE0ENT3. army, of 1639 ° in the Articles for the Scottish army, of 1644," and In Art. I of the Code of James 11." THE BECOIEMEin)ATIOK. The Article, In Its first clause, differs from the corresponding British article," from which it was directly derived and which requires attendance at divine worship, in recommending only such at- tendance ; " a difference doubtless growing out of the provision in our Constitu- tion,'' by which Congress is forbidden to make any "law respecting an estab- lishment of religion or prohibiting the free exercise thereof." " A statute making It obligatory upon oflScers or soldiers to attend religious services on Sun- day (or other day) would be of doubtful constitutionality, as opposed to the spirit If not to the letter of the organic law. The Article, therefore, while 1016 favoring such attendance, has well left it optional vrtth officers and sol- diers whether they will or not be present at any such services. THE PENAIi FBOVISIOir. The awkward and exceptional procedure pre- scribed by this Article would be sufficient to preclude, at this date, a resort to it for the disposition of ofCenders." Fo/ the punishment indeed of an offence such as indicated, a prosecution under Art. 62 or 61, would in general be found entirely adequate and effectual. The Article is thus practically as unnecessary as it is clumsy and antiquated, and having now no material value or significance, might well be dropped from the code." FlFTY-THIBD . AbTICLE. ITS FOBMEIl SIONIFICAITCE. The enforcement of this Article, (which is derived from provisions of the Codes of Charles I and James II,") was, at an early period of our law, much insisted upon. Thus, In a Resolution of December, 1776," recommending to the States the apiwinting of a day of " fasting and humiliation," it is added : — " The Congress do also, in the most earnest manner, recommend to all the members of the United States, and particularly the officers civil and military under them, the exercise of repentance and reformation ; and further require of them the strict observation of the Articles of war, and par- ticularly that part of the said Articles which forbids profane swearing," &c. Again, in February, 1777,—" It being," (to quote from the Journals,") repre- sented to Congress that profaneness in general, and particularly cursing and swearing, shamefuUy.prevail in the army of the United States," it is " Resolved n 1 Clode, M. F., 429. "Plpon & Col., 16. " See Appendix. And compare Arts. 5 to 16 of Gustavng Adolphas.1 "Art. 1, Sec. 1, of 1765. Sec Appendix. ■"Similarly "it Is commended," in G. O. 7, Army of the Potomac, 1861, "to com- manding officers that the men shall attend divine service after the customary Sunday morning Inspection." ''Art. 1 of the Amendments. " A pointed contemporary exposition or Illustration qf this provision of the Constitution Is found in the declaration inserted in the Treaty with Tripoli of 1796-7, (8 Stats, at Large, 155,) and stUl in operation, (see Public Treaties, 756,) that — " the Oovernment of the United States of America Is not In any sense founded on the Christian religion " and " has In Itself no character of enmity against the laws, religion or tranquility of Mus- Eulmen." » As to the Inconvenience of this procedure, see Hough, 56 ; Id., (P.) 28 • McNaehten 84 ; O'Brien, 58. > s ■ »McNaghten, (writing in 1828,) refers, (p. 84.) to the corresponding provision of the British Articles as " a mere dead letter." " Pee Appendix. And compare Arts. 2, 3 and 4, of Qustavus Adolphus. •• 1 Jour. Cong., 577. " 2 Jour. Cong., 51. MILITARY LAW AND PBECEDENTS, 657 that General Washington be Informed of this, and that he be requested to take the most proper measures, in concert with his general officers, for reforming this abuse." And, in a subsequent Resolution of October, 1778," officers of the 1017 army are " strictly enjoined " to see, among other things, " that the good and wholesome rules provided for the discountenancing of prophaneness * * * are duly and punctually observed." PBESENT TTNIMFOBTANCE. The extent, however, of the use of profane language in the army has long ceased to be regarded as a matter of public con- cern. The vehement and copious profanity of an earlier period is indeed now rarely Indulged in. In practice, such language, where so employed as to amount to a disrespect or a disorder, is made the subject of a charge under the 62d or other appropriate Article, but otherwise does not in general receive official notice. The 53d Article is never enforced and is practically obsolete : its provisions need not therefore be further considered. XXII. THE FIFTY-FOURTH, FIFTY-FIFTH, FIFTH-SIXTH AND FIFTY- SEVENTH ARTICLES. [Protection to Citizens and their Property, &c.] "Art. 54. Every offlcer commanding in quarters, garrison, or on the march, nhall keep good order, and, to the utmost of his power, redress all abuses or disorders which may be committed by any offlcer or soldier under his com.mand; and if, upon complaint made to him of officers or soldiers beating or otherwise ill-treating any person, disturbing fairs or markets, or convmitting any kind of riot, to the disquieting of the citizens of the United States, he refuses or imUts to see justice done to the offender, and reparation m^de to the party injured, so far as part of the offender's pay shaZl go toward such reparation, he shall be dismissed from the service, or otherwise punished, as a court-martial may direct. "Abt. 55. An officers and soldiers are to behave themselves orderly in quarters and on the march; and whoever commits any waste or spoU, either in walks or trees, parks, warrens, fish-ponds, houses, gardens, grain-fields, inelosures, or meadows, or maliciously destroys any property whatsoever belonging to inhab- itants of the United States, (unless by order of a general officer commanding a separate army in the field,) shaU, beside such penalties as he may be liable to hy law, be punished as a court-martial may direct. " Aet. 56. Any offlcer or soldier who does violence to any person bring- 1018 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. " Abt. 57. Whosoever, belonging to the armies of the United States in foreign parts, »r at any place toithin the United States or their Territories duHng rebeUion against the supreme authority of the United States, forces a safeguard, shall suffer death." FlFTY-rOUETH AeTICLB. ITS OBJECT. This statute, which, taken from a previous British article, dates In our law from 1775, was evid ently designed to protect civilians" " 3 Jonr. Cong., 86. ...... a , aok . "That the Article contemplates only Injuries done to this class, see Samuel, 465, O'Brien 117 - DiGiiST. 25. Our Article is In effect the corresponding provision of the British ■code,l-which applied only to cases of injury done to landlords or other persons wltll whom soldiers were billeted,— extended to citizens in general. 440593 O - 42 - 42 658 MOITABT LAW AND PBECBDENTS. from disorderly and riotous" acts on the part of the military, and, while pro- viding for the punishment of the latter, to secure to (he former an indemnifica- tion for such injuries as they may have sufEered. CONSTRTTCTIOU. The Article, however, is, as a remedial provision. In- complete and unsatisfactory, especiaUy in that (1) it leaves in doubt what classes of injuries are had in view-whether injuries to the person only, or injuries to property as well as person; and (2) fails to indicate in what manner and by what instrumentality the reparation for such injuries is to be effectuated. As to the injuries contemplated, the language of the Article would rather imply that It was bodily assault only that was Intended. But as the species of disorderly conduct specified are such as naturally to result in damage to property, such damage, at least when incidental to violence against the person or the outgrowth of a breach of the peace, might well be regarded as within the spirit of the Article. There was support therefore for the practice which grew up during the recent war, and was sanctioned later by the War Depart- ment in the General Order presently to be cited, of summarily mulcting 1019 soldiers by stoppage of their pay, under the present Article, for damage done civilians in their property, (in violation of Art. 55 or otherwise;) nor was this damage always the accompaniment of a personal assault or of a riotous outbreak. A liheral construction thus came to be given in practice to the Article in the particular in question, and, though in some instances this practice was extended to cases quite beyond the proper scope of the statute," a prompt justice, within the equity of its provisions and suited to the exi- gencies of the times, was In most cases administered. As to the modus operandi of the reparation, the Article does not indicate whether the appropriation of pay is to be made directly by the order of the commander himself or through the instrumentality of a court-martial. Early in the late war, however, the construction was put upon it by the Judge Advocate General " that it authorized the making of the reparation through the summary action and order of the military commander, Independently of any proceedings before a court-martial, and this view of the law was in general concurred in by department commanders." THE GENEBAIi OBDEE OF 1868 — PROCEDURE. The interpretation thus given was in substance adopted, and the prevailing practice formulated, in 6. O. 35, of the War Department, of 18C8, as follows: — "Under the 32d, (now 54th,) of the Rules and Articles of War, it is made the duty of commanding officers to see reparation made to the party or parties injured, from the pay of soldiers who are guilty of abuses or disorders committed against citizens. Upon proper representation by any citizen of wanton injury to his person or prop- erty, accompanied by satisfactory proof, the commanding officer of the 1020 troops will cause the damage to be assessed by a board of officers, the amount stopped against the pay of the offenders, and reparation made » The expression " any kind of riot," employed in tlie Article, may be regarded as of more general import than the technical legal term riot. «" As where it was applied to the reimbursement of a party for money or property ttolen irora him by a soldier, of which cases are found in G. 0. 59, Dept. of Washington, 1866 ; Do. 6, Dept. of the Cumberland, 1867. That the article cannot legally be re- sorted to for the relief of persons whose property has been the subject of larceny or emhezzlement, or to indemnify the United States for public property appropriated or damaged — see Digest, 47. " Digest, 46, 47. "See G. O. 123, Dept. of the Gulf, 1864; Do. 74, Dept. of Ark., 1865; Do. 48, 85, Dept. of La., 1866 ; Do, 59, Dept. of Washington, 1866 ; Do. 6, Dept. of the Cumberland, 1867. Contra, O'Brien, 117, following Samuel, 464. MILITARY LAW AND PBECEiDENTS. 659 to the Injured party. This proceeding will be independent of any trial or sentence by court-martial for the criminal offence." Under the Article, as illustrated and supplemented by this Order, the proce- dure is initiated by a " complaint made " by the injured party " to the commander of the regiment, post, &c. The commander may be directed by a superior — as by a department commander, in passing upon the proceedings of a court-martial previously ordered for the trial of the ofEender, or otherwise — to entertain the complaint, see to the matter of reparation, &c. ; " or he may himself take action in the first Instance, according to circumstances. The complaint, which avIU properly be expressed in writing, should set forth the details of the Injury, and be sustained by evidence showing it to be meritorious and well-founded; and this evidence may also properly be required to be exhibited in the form of affidavits or written statements. The commander, if he deems it expedient, may examine the witnesses in person, or cause them to be exanjined and their testimony to be talsen down by an officer of his staff or command. But the commander cannot properly himself initiate the investigation ; i. e. cannot dispense with complaint or testimony from the- aggrieved party and proceed sua sponte. " Proper representation " having been made and " satisfactory proof " fur- nished, the commander will convene a " board " for the assessing of the damage. This, in a case of Injury to property, will be such amount as may justly and reasonably be required to malse good the loss. In a case of injury to the person, it will ordinarily be a sum sufficient to reimburse the party for actual expenses incurred for medical or surgical attendance, nursing and the lllse." The party cannot be awarded punitory damages: if he claims them, he must be 1021 referred to the civil courts. To assist it in its assessment, the board may avail itself of the testimony of experts or other persons cognizant of values, prices, &c. The conclusion of the board being approved by the commander, he y/iW by the proper order, direct the amount to be stopped against the pay of the offender on the muster and pay rolls of the command, or otherwise charged against his pay account, till it be collected In full, and the amount or amounts, as collected, to be paid over, by the paymaster, company commander, or other proper officer, to the injured party or some duly authorized person in his behalf. T*e Article specifies that the reparation shall be made " so far as part of the offender's pay shall go toward " it. Thus if the amount assessed is greater than the pay then due or which will become due at the next pay day, a portion only of such amount should properly be stopped against and deducted from such pay, leaving the remaining portion to be similarly stopped against a future payment or payments. ^ . ^^ s,. ^ ^u Where it appears that several persons were concerned m the disorder, the commander will divide the amount assessed among the different parties in equal sums or in such proportions as he may deem just. In some exceptional cases of destruction or damage to private property participated in by members of regi- ments or other bodies of troops on the march, where it has not been practicable to distinguish certain individuals as the parties liable, a stoppage has been ordered, under this Article, against the entire command. f«^r fP O 161 Dept of Washington. 1865,) or an attorney. officer, (G. O. 161, "eP^- «i "'"' « ' ^ q j^ i864 ; Do. 59, Dept. of Washington, ™see ta«t«°^f i" «• ^-.'f^ices. Do 6 DePt. rf the Cumberland, 1867. G. 0. 48 and 55, Dept. o£ La., 1866. 660 MHJTABT LAW AND PRECEDENTS. As Indiciited In the Article, aud specified in the last claiise of the Order, the ofiEeiuler or offenders may be tried and punished for the military offence Involved in his or their act, quite irrespectively of any proceeding for the reparation of the dtizen had under the Article. The trial will preferably be first ordered," since, if the r^aration be subsequently sought to be made, the commander and the board will have the benefit of any material facts developed upon the original investigation. So, if the accused be acquitted, such acquittal will furnish good ground for not favorably entertaining the complaint or for reducing the 1022 amount to be assessed. If, upon the trial, a forfeiture of pay be adjuiJgM, such forfeiture, in its execution, will take precedence of a stoppage that may subsequMitly be made under the Article.. It need scarcely be added that notwithstanding a trial by court-martial, and proceedings had under the Article, the offender will still be amenable to the local law for such crime or misdemeanor as may have been involved in his acts, as well as to suit for damages. DEFECTS OF THE ASTICIiE — ^FBACTICE. It may be remarked of this Article, in conclusion, that it is antiquated in some of its terms. Indefinite aud obscure in its more important provisions, and, as at present construed,, confers upon military commanders a summary authority, which Is exceptional in our law and of doubtful expediency. In view of its defects, commanders have been reluctant to act upon it, and the comparatively rare proceedings which have been instituted have been mostly confined to the period pending and immediately succeeding a time of war. There have been but two or three precedents of trials of officers for "refusing or-omittlng " to comply with its injunctions," and, in the opinion of the author, it might be omitted from the code without prejudice to the service. Fifty-fifth Abticle. ITS PTJBPOSE. This Article, which, dating from an early period of the British law," first appeared in our code in the Articles of 1776," is designed, by making severely punishable trespasses committed by soldiers on the march or otherwise, to prevent straggling and maintain order and discipline in mili- tary comuiands, while at the same time availing to secure from intrusion and injury the premises and property of the inhabitants. 1023 CONSTBTTCTION — " Waste or spoil." These words, which ara of similar signification, are not necessarily to be understood in a strictly legal or technical sense. Thus " waste" Is defined by Bouvier as " spott or destruction, done or permitted, to lands, houses, or other corporeal hereditaments, by the tenant thereof, to the prejudice of the heir, or of him in reversion or remain- der : " according to Greenleaf," " it includes every act of lasting damage to .the "This has In fact been done in the majority of cases. See G. O. 123 Dept of the Gulf, 1864 ; Do. 48, 55, Dept. of La., 1866 ; Do. 59, Dept. of Washington 1866 • Do 6 Dept. of the Cumberland, 1867. . • ". " See cases in G. O. 4, Dept. of the Ohio. 1863 ; Do. 161, Dept. of Washington, 1865 Compare here the penalty prescribed by the original Article (the 12th) of 1775— that the commander " shall be punished in such manner as if he himself had committed the crimes or disorders complained of." "Samuel (p. 589,) while tracing it to ordinances of the reigns of Elizabeth and Charies I, adds : This Article is formed principally on the 21st Art. of the Rules for the govern- ment of the land forces, of James II." See Appendix govern * "'^^H^'lh"'' ^**'l*- '^"«'.*»"= ^»"1« ""y tl-e order of" the general commanding, &c.. added the words, dropped in the form of 1806-"to annoy rebels or other enemlS in arms against said States." cu,;uiico ™ 2 Bv. S 650. MHJTARY LAW AND PRECEDENTS. 661 freehold or Inheritance." But, as employed In this Article, the words " waste or spoil may be held to embrace any deliberate or wanton destru^lon or damage done not only to ttie real estate itself but to animals or things kept or held ^'ithm or upon it," and to include acts of military persons, whether occupying the premises for the purposes of a camp or bivouac, marching through or near the same, or operating or being quartered in their neighborhood. "Maliciously destroys any property whatsoever." The act here de nounced is of a similar nature to the offence known to the common law, and which Is now a statutory misdemeanor in most of the States, of "malicious mischief" or "malicious trespass." Under the present Article, however, in view of the general terms in which the offence is described, it is not considered necessary, as it was at common law," to show that the accused was actuated by malice against the otoner of the property, but is deemed sufficient to establish the existence of any form of malice; as, for example, malice toward the race, class, or family to which the owner belongs, or toward the thing itself where It is an animal," or toward a person who has the property in temporary pos- session as tenant or bailee," or evil disposition in general. The malice may be established by declarations of the accused, made 1024 before or after " the offense, or by acts or demonstrations evincing per- sonal Ul-will and resentment. Or It may be inferred from the deadly or dangerous character of the weapon or instrument employed, from the mere wantonness of the act, or from any of the circumstances that afford a pre- sumption of malice upon the proof of crimes of which malice is an ingredient." The existence of malice may be negatived by evidence that the act was simply one of carelessness, or a mere incident of a neglect or disorder, unaccompanied by personal or evil animus; or that It was committed under a bona fide though mistaken sense of duty, or in compliance with the orders of a military superior, though such superior may not have been the army commander specified in the Article. The destruction will be complete if the property be substantlaUy ruined for the purpose for which It was designed, as where clothing is so injured that it cannot be worn," or where telegraph wires are severed and thus rendered useless." Malice being the gist of this second offence made punishable by the Article, the court, where the evidence shows an unjustifiable destruction of property but without malicious intent, will properly find the accused not guilty of the specific offence charged, but guilty of " conduct to the prejudice of good order and military discipline." " Belon^ng: to inhabitants of the TJnited States." This term, expressed in the Article of 1776 as " belonging to the good people of the United States," while general enough to embrace military persons as well as civilians, was evidently intended to refer mainly or entirely to the latter. It Includes of course the property of a corporation" equally with that of an individual. So, although, " See a case In G. O. 10, Middle Mil. Dept., 1865, where the waste charged consisted mainly in Injuries done to deer and sheep in u private parlt. ™ State V. Koblnson, 3 Dev. & B., 130 ; State v. Newby. 64 No. Ca., 23, and cases cited ; Northcot V. State, 43 Ala., 330. The common law rule has been modified by the statutes of some of the States. " See State v. Avery, 44 N. H., 392. » Stone V. State, 3 Heisk., 457. « State V. Graham, 46 Mo., 490. " Hobson V. State, 44 Ala., 380 ; Hill v. State, 43 Id., 335. M See case in G. O. 10, Dept. of the South, 1870. « See case in G. O. 29. Dept. of the Gulf, 1874. » See case in G. O. 29, Dept. of the South, 1874. 662 MILITABT LAW AND PRECEDENTS. as has been seen, the original Article was restricted in its application to acts directed against enemies or persons In rebellion, the present statute, as a more general rule of discipline, applies to trespasses upon the property as well of resident aliens as of citizens, and of disafEected or disloyal as well of loyal individuals." 1025 " TJnless by order of a general officer commanding a separate army in the field." This exception is a recognition of a general principle of military law already referred to under Art. 42, in treating of the offence of committing "plunder or pillage," vis. that the property of private individuals can legally be taken or destroyed by the military only in time of war and by the authority of the oflBcer in chief command of the troops operating against the enemy. The general commanding, referred to In the present Article, where the due prosecution of hostilities, or the exigencies of the situation may require it, is empowered to seize and consume private property, especially when required as supplies for his command or as material for quarters or defences, or to pre- vent its falling Into the hands of the enemy." In exercising such authority he represents the sovereignty of the government; but ho subordinate officer can undertake to exercise this function, or, however proper or desirable be the object in view, assume to make in the first instance the order which the statute em- powers the army commander alone to originate." " Besides such penalties as he may be liable to by law.'' The Article has here In view the punishments affixed by the statutes of the State, &c., to the com- mission of " malicious mischief " and like offences. It thus recognizes the prin- ciple that an officer or soldier. In committing a military disorder, becomes liable not only to trial by court-martial but also to the civil judicature for such crim- inal offence, (or cause of action,) as may be involved in his wrongful act. This Article is not regarded as one important to be retained upon a revision of the code. Fifty-sixth Article. THE OSIOINAL FOBM. This provision has come down from Art. 91 of Gustavus Adolphus, through Art. 11 of Sec. IV of Charles I and Art. 33 of James II. In our own original article on the subject — No. 24 of the code of 1775 — ^it was prescribed that an officer or soldier who should " do violence, or offer any insult or abuse, to any person," &c., * * * should suffer such, 1026 punishment as should " be ordered by a regimental court-martial;" such court having, under that code, jurisdiction of the offences of officers as well as of soldiers. In the succeeding code— of 1776— the Article assumed substantially its present form, PBINCIPLE OP THE ABTICLE. This, and Art. 87, (making punishable the forcing of safeguards,) are the only ones in the code which provide specifi- cally for the punishment of offences committed " in foreign parts." An offence to be cognizable under this, (or that,) Article inust have been committed in time of war, or while our army was passing through the territory of a friendly power, or occupying some portion of a foreign country under a treaty, &c. The principle upon which a miUtary court, in the absence of statutory au- thority, is invested with jurisdiction under the circumstances, is that of externtoriality, or a principle analogous thereto, by which an army, when with- »In a case in G. C. M. 0. IB, Fourth Mil. Dlst., 1867, an officer is severely sentenced for destroying the type, printing material, &c., of an alleged disloyal or hostile newspaner And see Digest, 48. f f . " See Pabt II — The Law or War. " Compare TerrlU v. Rankin, 2 Bush, 453 ; Lewis v. McGulre, 3 Id., 202. MILITARY LAW AND PBECEDENTS. 663 out the domain of Its own government, Is held to carry with It Its own code of diclpUne, — a principle already considered In Chapter VIII. In this In- stance, and that of Art. 57, the jurisdiction is conferred by express enactment.* OBJECT OF THE ABTICLE. The main object of the Article, according to Samuel" and Hough," is to conciliate the inhabitants and induce them to bring provisions into the camp, &c., of the army by assuring to them protection in so doing. As violence against them would efEectually deter them, this is prohibited under the extreme penalty of death, and the prohibition is held properly to cover the period of their coming to, remaining at, and returning from, the camp or station." THE " VIOLENCE " CONTEMPLATED. In view of the mandatory pen- alty of death imposed by the Article, the term violence is strictly construed to mean an immediate violence to the persooy and to embrace any crime or 1027 offence involving a battery." For acts within the spirit but not the letter of the Article, — as for conduct not Involving bodily injury, (the " insult " or " abuse,". for example, included in the original Article,) or for a tak- ing, destruction, &c., of the provisions, unaccompanied by personal assault, — the offender would still be liable to trial, and to a punishment proportioned to the gravity of his offence, under Art. 55 or 62. Fifty-seventh Article. ITS SCOPE. This provision is to be traced to Art. 12 of James the Second. As it first appeared in the code of 1776, it was thus expressed : — " Whosoever, belonging to the forces of the United States employed in foreign parts, shall force a safeguard, shall suffer death." Early in the late war, however, by an Act of Feb. 13, 1862, the field of its application was extended to the United States during a period of rebellion, and it assumed its present form as an Article of war in the revised code of 1874. Premising that by the term, " rebellion against the supreme authority of the United States," is mainly had in view that insurrectionary status, (illustrated under the next Article,) the existence of which the President is, by the Act of July 13, 1861, (Rev. Sts., Sec. 5301,) empowered at any proper time to declare, we proceed to define the term " safeguard," and to consider in what the offence of forcing one may consist. THE SArEGTTABD— ITS NATTJBE, FOBM AND EFFECT. The term " safeguard " has sometimes been treated as synonymous with " safe-conduct," "* and the two have been confounded by some writers on miUtary law." Both indeed are personal concessions and not transferable." A safe-conduct, how- ever which is a privilege accorded generally to an enemy or an alien- especially where a diplomati c, consular, or other public official— of passing «„„..» nf this kind described but committed within tlie Indian country in a Ter- ritot: would not'Se%ogniIle under tbis Article. See G. C. M. O. 77 and 88. Dept. of the Mo., 1870. •0 Pages 560-1. And see O'Brien, 115. M Page 307. ITrofiU-the form of tbe violence in the ca^ in the G. C. M. O. cited in note 1. ante. « HaJlecIt, Int. Law, 665. edition,) 461; 1 Kent Com.. 162; Halleck, 663. 664 MILITAKY LAW AND PRECEDENTS. through the territory of a nation during war," is quite different from a 1028 safeguard as that term is now understood in our military law. As used in the present Article, and described in the Army Regulations,"" the word signifies a special privilege of protection for persons, household, or prop- erty — all or either — against military marauders or other disorderly parties, granted by a military commander to private individuals, (deemed to have a claim upon the protection of the government," or whose premises or 1029 property it Is thought desirable to protect in the interests of military discipline or otherwise,"") to corporations, or to hospitals or other public " Vattel, e. XVII ; 1 Kent, Com., 162 ; Woolsey, 337 ; Halleck, 663'; Lieber, (G. O. 100 of 1863,) § 86, 87. In a Resolution of May, 1776, (1 Jour. Cong., 339,) Congress guarantees to an Indi- vidual a safe-conduct for a Journey from one place to another and tor a residence there during pleasure. The granting of safe-conducts was probably indeed more common at that time than it has been at any later period in our history. [See 3 Jour, Cong., 693, and the Act of April 30, 1790, s. 28, by which the violation of safe-conducts and pass- ports is made punishable by fine and imprisonment as a crime against the United States.] " The following are the paragraphs of the Army Regulations of 1881, relating to this subject : — " SAPEOUABDS. 1083. Safeguards are protections granted to persons or property in foreign parts by the commanding general, or by other commanders within the limits of their command. 1084. Safeguards are usually given to protect hospitals, public establishments, estab- lishments of religion, charity, or instruction, museums, depositories of the arts, mills, post-offices, and other institutions of public benefit ; also to individuals whom it may l>e the interest of the army to respect. 1085. A safeguard may consist of one or more men of fidelity and firmness, generally non-effective non-commissioned officers, furnished with a paper setting out clearly the protection and exemptions it is intended to secure, signed by the commander giving St, and his staff officer ; or it may consist of such paper, delivered to the party whose person, family, house, and property it is designed to protect. These safeguards must be num- bered and registered. 1086. The men left as safeguards by one corps may be replaced by another. They are withdrawn when the country is evacuated; but If not, they have orders to await the arrival of the enemy's troops, and apply to the commander for a safe conduct to the outposts. 1087. Form of a safeguard : By authority of , A safeguard is hereby granted to [A. B ; stating precisely the place, nature and deaoriptUm of the person, property, or buUdings.'l All officers and soldiers belonging to the army of the United States are therefore commanded to respect this safeguard, and to afford, if necessary, protection to [the person, famay, or property of . as the case may he,} Given at Headquarters, the day of . — MaJ. Gen. Commanding. Adjutant General." »»Tullock, (p. 39, 40,) refers to safeguards as privileges originally given under the law of nations, to enemies, and, in 1811, extended by Wellington to the inhabitants in Spain. Persons holding property under the Government upon the theatre of war, would of course, if their property were endangered, be entitled to safeguards, where the public exigency would allow their being furnished. Thus, in G. O. 27, Dept. of the Tenn , 1863, It is ordered as follows :— "All military commanders within this department will' on application, give safeguards to Government lessees of plantations on the Mississippi River, for their stdck, provisions, household property, and every thing connected with the plantations so leased." ""Granting a safeguard to an improper person may constitute a military offence Thus, in a case in G. C. M. O. 267 of 1864, a general officer was convicted of "conduct to the prejudice," &c., in furnishing a safeguard for the protection of the property of a " notorious rebel," without " obliging him to take the oath of allegiance." MTLITAKY LAW AND PRECEDENTS. 665 institutions or places.' In according this privilege, the commander either causes a guard, (a soldier or soldiers.) to be posted' at the dwelling of the appUcant or other proper place, or he furnishes the proper person with a formal certificate or order In writing, subscribed by him in his official capacity to the efEect that a safeguard has been granted, stating its subject and scope, and calling upon the military to respect it. Or the commander may furnish both guard and certificate: indeed, in practice, a person to whom is accorded a written pro- tection is generally also supplied with a guard to assure and enforce It' 1030 In common military parlance the term " safeguard " is applied somewhat indifferently to the writing or order and to the sentry or guard ; strictly speaking, either is but the evidence of the existence of the privilege. Hall, in his International Law,' In describing a safeguard as " a protection to persons or property accorded as a grace to a belligerent," adds — " It may either consist in an order in writing or in a guard of soldiers charged to prevent the performance of acts of war. * * • when a safeguard is given in the form of soldiers, the latter can not be captured or attacked by the enemy. Where the grant of protection Is in written form, the writing should exactly and fully specify and describe the person or persons, property, buildings, places, &c.. Intended to be included: it should also properly state the limit of its duration, so that it piay be known for what period it is good, when it may require renewal, &c. Where a guard only is employed, the sentinel, or the officer or non-commissioned officer commanding the detail, should be clearly instructed as to the same particulars. By whom to be granted. The Army Regulations* describe safeguards as granted "by the commanding general or by other commanders within the limits of their command." As " the efCect of a safeguard is to pledge the honor of the nation that the person or property shall be respected by the national troops," ' the same could not in general properly be accorded by a subordinate commander, but should proceed from the commander of the army, department or district, or the officer commanding a separate force acting independently in the enemy's country. It is to be observed of a safeguard that, though given » See the description of a 'safeguard in Halleck, 665 ; Hall, (Int. Law,) 477. Com- pare also 1 Kent, Com., 163, note ; Vattel, 369 ; O'Brien, 140 ; Army Regs, of 1881, pars. 1083, 1084. As to the granting by Gen. Scott of safeguards for churches, colleges, hos- pitals, mills, *c.. In Mexico, see his Autobiography, p. 547. 'The guard is generally posted by the provost marshal. See G. O. 22, Mountain Dept., 1862. 'The writing may be furnished to the guard, (see par. 1085, Army Eegs. of 1881, ante;) or to a person employed as custodian of the property. (See O'Brien, 140.) Halleclt (p. 665,) writes of safeguards:—" Sometimes they are delivered to the parties whose persons or property are to be protected ; at others they are posted upon the prop- erty itself as upon a church, museum, library, public office, or private dwelling." In G O 60 Army of the Potomac, 1862, it Is ordered : "AH safeguards granted at these headiuarters will be countersigned hy the Provost Marshal General. Persons found violating these safeguards will be instantiy arrested by the provost marshals." As to the form of a written safeguard, see par. 1087, Army Kegs of 1881, ante; also the form recited in the specification of a case pubUshed in G. O. Ill, Sixteenth Army Corps. 1863 In some instances safeguards have been announced In General Orders. Thus, in Gen Wool's Orders, No. 424 of 1847, It is declared that safeguards have been granted to tie^onowing persons, their families and property, (naming them and their ho^ndoa,) and all offllers and soldiers are required to respect such safeguards, and afford protec tion accordingly where necessary. And see O'Brien, 140. ^ ^ ^ , ^ "page 477 vlttel, (p. 369,) referring to safeguards as "granted to lands and houres' intended to be spared," adds-" These consist of -'««*:; -^''P"*-* *•">•" against parties by producing the general's orders." And see McNaghten, 90. » Par. 1083, A. R. of 1881. ante. •O'Brien, 140. 666 MILITAEY LAW AND PRECEDENTS. by the commander of a separate army, &c., it is. In general, equally to be 1031 respected, during the term of its operation, by the successors of such commander, as well as by all other commanders, armies, or forces who may occupy or pass through the locality.' Revocation. A safeguard, however, is always subject to be revoked for good cause, either at the discretion of the authority from whom it proceeded or his successor in command, or by the order of a superior commander or the Presi- dent.' A controlling cause would be the treason, treachery, or disloyalty of the recipient, which, when discovered, would exhibit him as no longer worthy of the special protection afforded.* FOBCING A SAPEGTIAIID. The offence of the forcing of a safeguard will consist in a wilful disregard and violation of the protection, to the injury of the person, property, &c., to whom, or for which, it has been accorded. In a majority of the cases published in General Orders, the offence consisted in plundering, or in larceny or robbery, committed upon premises which had been duly placed under the protection of a safeguard ; " the act being sometimes accompanied by violent or threatening conduct toward the inmates."^ The thrusting aside, disarming, resisting, or otherwise assaulting, of a sentinel or guard posted for the purpose of enforcing a safeguard, in connection with a failure to comply with his order against entering or interfering with the 1032 house, property, &c., placed under the protection, would be another marked form of a violation of the Article." It is of course essential to the specific offence that the accused should have known of the existence and purpose of the safeguard which he is accused of forcing." In the absence of positive or presumptive evidence of such knowl- edge on his part, his act will properly be charged under the 42d or 62d rather than the 57th Article." XXIII. THE FIFTY-EIGHTH ARTICLE. [Jurisdiction of Crimes in War, &c.] " Abt. 58. In time of war, insurrection, of rebellion, larceny, rohiery, burg- lary, arson, mayhem, manslaughter, murder, assault and battery with an intent to Icill, wounding, by shooting or stabbing, with an intent to commit murder, ' See Vattel, 416, as to the rule. In this respect, In regard to safe-conducts. As to safeguards, the same author states that the guards posted to enforce them must be respected also by the enemy. He says, (p. 369,) — " The persons of these soldiers must be considered by the enemy as sacred : he cannot commit any hostilities against them, since they have taken their station there as benefactors, and for the safety of his sub- jects." See par. 1086, Army Eegs. of 1881, ante. A safeguard given for an illegal or traitorous purpose is a fraud and not entitled to respect. Similarly, Arnold's passport furnished to Andr^, being given him by a traitor ■with whom he was in complicity, was null and void as a safe-conduct. See sec. 1343, Eev. Sts., as to Spies — post. ' As to the rule in this respect in regard to safe-conducts, see Vattel, 418 ; 1 Kent Com., 163; Halleck, 664. • " Every privilege when it becomes detrimental to the State may be revoked " Vattel, 418. I" See cases in G. O. 36 of 1864 ; Do. 22, Mountain Dept., 1862 ; Do. Ill, Sixteenth Army Corps, 18G3 ; Do. 31, Dept. of the Ohio, 1864 ; Do. 105. Dept. of No Ca 1865 "■ G. O. 105, Dept. of No. Ca., 1865. "See McNaghten, (p. 89,) who also notes, (p. 91,) that the forcing must be actual; that an attempt to force will not constitute a violation of the Article. " Samuel, 571 ; O'Brien, 141. "In a few instances in our service of convictions under this Article, the sentence to be shot — has been mitigated by the reviewing authority. See G. O. 36 of 1864 • Do. 105, Dept. of No. Ca., 1865. MHJTAEY LAW AND PRECEDENTS. 667 rope, or assault and battery with am, intent to eommit rape, shallbe punishable by the sentence of a general oourt-martiai, when comnUtted by persons in the mtUtary service of the UtUted States, ond the pwnishment in any such case shall not be less than the punishment provided, for the like offence, by the laws of the State, Territory, or District in which such offence may have been committed." OKIGIN AND OBJECT. TMs proyislon, which, with but a single material change of language," Is a repubUcatlon of s. SO of the Act of Congress of March 3, 1863, c. 75, appeared first as an Article of War In the Revision of 1874 Prior to its enactment, courts-martial were not invested, either In peace or war, with a jurisdiction of the violent crimes cognizable by the civil courts, except 1033 where the same dlrecOy prejudiced "good order and military dis- cipline." " In 1863, however— during the late civil war— the provision incorporated in this Article, initiated in our mUtary law the marked imiovation of investing general courts-martial with jurisdiction, in time of war, &c., of the graver civil crimes when committed by military persons, without regard to whether such crimes directly prejudice military discipline or affect the military service. Its main object evidently was to provide for the punishment of these crimes in localities where, in consequence of miUtary occupation, or the preva- lence of martial law, the action of the civil courts is suspended, or their authority can not be exercised with the promptitude and efficiency required by the exi- gencies of the period and the necessities of military government." THE JURISDICTION CREATED— Its limit as to time or occasion. The operation of the Article is limited to " time of war, insurrection, or rebellion." The term war has been heretofore defined as including foreign or international war, internal or civil war, and the state of hostilities known as Indian war." Under Art. 57, rebellion has been referred to as the status of armed revolt against the authority of the Government, the existence of which the President is em- powered in a proper emergency to declare, by See. 5301, Rev. Sts. Insurrection is but a less extended form of rebellion, as rebellion is, ordinarily, less extended than civil war. " Insurrection against government," it is remarked by Grier J. in the Prize Cases " " may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the government." In our late war, however, in view of the dimensions of the 1134 existing insurrection, the words " rebellion " and " civil war " came to have for the time substantially the same meaning, and the terms " Insur- rection " and " rebellion " were indifferently employed with a similar import in executive proclamations and orders as well as in statutes. Duration of war, &c. — Commencement of the period. In order to deter- mine the limit of the jurisdiction as to time, it will be necessary to consider when a period of war, &c., commences and when it ends. " This change Is the omission of the words — " or military commission," after the words — " a general court-martial," an omission proper for the reason that a military commission is not the appropriate tribunal for the trial of military persons. " They were distinguished in this respect from the British courts-martial. See, for example, the Trial, In the British army, in 1782, of Captain Lippencott for the murder of Captain Buddy, an American prisoner of war. As to the jurisdiction of civil crimes as vested in British Courts-martial by existing law, see Army Act, sec. 41. " See remarlss of Gen. Pope in G. O. 29, Dept. of the Northwest, 1864. In Coleman v. Tennessee, 97 U. S., 513, it is observed that " the swift and summary justice of a mili- tary court " was invoked by this Article, " not merely to Insure order and discipline among the troops, but to protect citizens from the violence of soldiers." It is certainly Immaterial upon or against whom the crime was committed, whether another soldier, a citizen, or a prisoner, of war. •^Ante, pp. 86, 101. i»2 Black, 666. 668 MILITAKY LAW AND PRECEDENTS. A foreign or international war wiU generally commence to exist upon a declaration of tlie same in some -form by Congress under tlie clause of tlie Con- stitution whicli empowers tliat brandi of tlie government " to declare war." Tlius tlie war of 1812 was declared by the Act of June 18th of tTiat year, con- sisting of a single section, enacting—" That war he and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their terrv- tories; and that the President of the United States is hereby authorized to use the whole land and naval force of the United States to carry the same into effect, and to issue to private armed vessels of the United States commissions or letters of marque and general reprisal," &c. In the only other instance in our constitutional history of a foreign war — that with Mexico, the declaration was less formally contained in the preamble to an Act of May 13, 1846, in these words : — " Whereas, by the act of the Republic of Mexico, a state of war exists between that government and the United States," &c., — the statute then proceed- ing to empower the President to employ the army, navy, militia, and a specified force of volunteers, for the prosecution of the war, and making appropriations. for the purpose. But a declaration of war by Congress is not absolutely necessary to the legal existence of a status of foreign war." Such a war cannot indeed be declared or initiated by the President, but, if declared or commenced against us by 1035 another power, which, thereupon, before our Congress can or does act, proceeds to invade our territory, or to attack the defences of our coast or frontier, such invasion or attack must, under the orders of the Executive as Commander-in-chief, be met and resisted by force against force, and in this armed meeting and resistance there is war." Under such circumstances a legal status of foreign war would actually exist, and the jurisdiction created by the present Article would become operative, in the absence of, or rather prior to, any formal declaration or other action on the part of Congress. A civil war resembles this last form of foreign war in that is exists of its own force and independently of any authentication of Congress; the Constitution making no provision for the declaration either of the beginning or end of such a status. Thus in the Prize Cases," the court say of civil war that it " is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on." " And the like is true of an insurrection or rebellion, not properly amounting to a civil war ; — ^it commences and exists, in the sense of the Article, when it has assumed such proportions that it becomes necessary to employ the armed force of the United States to combat and suppress it. The proper date, however, of the commencement of such a status will ordi- narily be determined by the proclamation or order issued by the President, (in conformity with the existing statute law, if any,) declaring the existence and character of the insurrection, requiring the insurgents to disperse, calling out the militia, announcing the proposed employment of the army and navy, Ac.** '° Declarations ot war or similar formal notices are held -by modern writers on Inter- national Law not to be necessary to the initiation ot a status belli. See. Phillimore,. vol. 3, ch. T ; Hall, 321. And compare the interesting publication on " Hostilities without Declaration of War," by Lt. Col. Maurice, Royal Artillery, London, 1883. *> On this point see remarlcs and rulings of Grier, J., In The Prize Cases, 2 Blacit, 668 ;. also Rawie on the Const., 109, 198 ; Cooley, Prlns. Const. Law, 86, 100. Specific authority to employ the militia to repel an Invasion is vested in the President by Sec. 1642, Rev. Sts. •=2 BlaclJ, 666. » Compare Allre v. V. S., 1 Ct CI., 233, cited poet, as to the initiation of Indian wars. " See The Protector, 12 Wallace, 700. MILITARY LAW AND PRECEDENTS. 669 In the instance of the " Whiskey rebellion " in western Pennsylvania, the ex- istence of the insurrectionary status was declared by the President in two proclamations issued under the Act of May 2, 1792, the second of which, of Sept 25, 1794, was published Immediately before marching the militia and 1036 volunteers against the insurgents."' Later, in the case of the obstruction in the same State to the enforcement of the tax upon dwellings, &c., the status of insurrection was first announced by proclamation of the President of March 12, 1799." In the further case of the recent Southern rebellion, the Supreme Court of the United States, in the case of The Protector," fixed upon the President's proclamation of intended blockade of April 19th, 1861, as prop- «rly establishing the date of the commencement of the war status, so far as con- cerned the States, mentioned therein, of South Carolina, Georgia, Alttbama, Florida, Mississippi, Louisiana, and Texas; and the supplementary proclama- tion of the same character, of April 27th, 1861, embracing Virginia and North Carolina, as furnishing such date with reference to events occurring in those two States. These proclamations were issued during a recess of Congress, the former announcing in terms the inauguration of the " insurrection." " The existing law, under and by the authority of which, in the event of insur- rection, &c., the President would take action, by proclamation, &c., is contained In Title LXIX of the Revised Statutes. Termination of the period. The Constitution, in vesting in the President, '" by and with the advice and consent of the Senate," the authority to make treaties, practically constitutes him, concurrently with that Ijody, the peace- making power ao far as relates to wars with foreign nations. In the instance therefore of such conflicts, the war status will properly be held to end with the date of the treaty, or other agreement for the cessation of hostilities, thus formally entered into vrtth the foreign power — a date which wiU ordinarily be publicly announced by executive proclamation. 1037 In the case of a dvil war, rebellion, &c., in the absence of any constitu- tional or legislative provision on the subject, a proclamation by the Presi- dent to the effect that hostilities have come to an end or the rebellion or insur- rection has been suppressed, may ordinarily be accepted as fixing an authorita- tive date for the discontinuance of the gtatus belli. This mode of legally termi- nating such status was resorted to in the instance of the late rebellion, and has been recognized by the courts as sufficient." In the case, above cited, of The Protector," the Supreme Court held that the war ceased, in all the States except Texas, on April 2d, 1866, the date of the President's proclamation announcing the final suppression of the rebellion in those States, and in Texas on August 20th following, the date of the proclamation declaring its extinction in that State and generally." ■Wharton, State Trials, 118, 141. "Id., 458. « 12 Wallace, 700. And see Prl«e Cases, 2 Black, 635. » A previous proclamaUon of April 15th, had announced the fact of an organized opposi- tion to the laws and obstruction to their execution, and called out the militia to suppress the same Ac. It was the next succeeding proclamation of the 19th, however, which first declared "the existence of the insurrection as such. As to the snbseQuent sanction b, legislation of Congress, of this proclamation.^a ''"=«°"; ^'l^T' f^^*"" J ««?'**^ "^ the court In the Prize Cases as quite unnecessary In law,— see 2 Blaclt, 670, 671. ""The suppression of the rebellion describes a political condition and not a Judicial fact That «,ndition can only be defined and determined by the political departments of tte government; and their decision is not only binding but conclusive upon the Judiciary." Orossmeyer v. V. S.. 4 Ct 01., 15. And see Heflebower v. V. S., 21 Id., 228. -See'^^n. 1^'derson. 9 Wallace. 56; Grossmeyer v. V. S.. 4 Ct «.. 28. 670 mLITABT LAW AND PRECEDENTS. In several cases In which courts-martial assumed to exercise Jurisdiction, under Art. 58, after this date, their sentences were formally disapproved as adjudged in time of peace." Whether Congress, by Its legislation, (resorted to subsequently to the date of these proclamations,) of March, 1867, linown as the Reconstruction Laws, did not in fact pronounce that the status of rebellion was still subsisting, so far at least as to authorize it to provide for the government of the insurrectionary States, is a question which wlU be adverted to in Pabt II of this work." It may well be remarked here that no temporary truce or armistice, 1038 pending hostilities, will have the effect to discontinue or suspend the war status, so as to deprive military courts during such interval of the juris- diction created by the Article." As to Indian warfare — which is Initiated, not by formal declaration or proclamation, but by the breaking out of active hostilities" — ^this, with us, is prosecuted under such varying situations that the question whether a certain offence of the class specified in the Article was committed during a period of such war can be determined only by the circumstances of the particular case. If committed pending active operations against an Indian tribe, during the Interval after the troops have entered upon the campaign and before they have been ordered to return to their previous posts as being no longer required for tlie prosecution of hostilities, it may be said to have been committed in a " time of war," and thus to be cognizable by a court-martial under the Article." The period as affected by the place. It is to be noted that where the hos- tilities are confined to a particular State or States, or to any particular portion of the territory of the Republic, a court-martial will, strictly, be authorized to exercise the jurisdiction conferred by the Article only In cases of crimes com- mitted within the limited theatre of such hostilities, for it is " time of war," &c., only in such locality. This condition is especially applicable to crimes com- mitted In Indian wars, whose field is necessarily restricted to some inferior, though not always well-defined, region of the public domain." Jurisdiction of courts-martial in time of peace not affected by the Article. The Article, In Investing general courts with a special jurisdiction of certain crimes in times of war, by a necessary implication excludes them from exercising jurisdiction over the same iu time of peace, except in 1039 so far as they may be atithorized to exercise it under other Articles. The only specific provision conveying such authority is that of Art. 60. by which larceny is made cognizable, at all times, by courts-martial, where committed in respect to puWic property. Except in this instance the crimes named in Art. 58 cannot, in time of peace, legally be brought to trial by court-martial unless they may come within the description of the general Article 62,— In that, being not capital, they are committed under such circumstances as to be " preju- " Note cases in G. O. 59, Dept. of Washington, 1866 ; Do. 14, Dept. of the South, 1866 ; Do. 15, Dept. of the Gulf, 1866 ; Do. 85, Dept. of the Cumberland, 1867 ; Do. 14 Deot of Dakota, 1868. A court-martial can of course have no capacity of Itself to determine whether a state of war has begun or ended, but must accept the fact as declared or recognized by the proper superior authority. See Digest, 49. " See Part II, Title VII. "That a truce or armistice is not peace, but merely a suspension of active military operations of a hostile charactei^see Vattel, book III $ 284 ; Lleber, (G. O. 100 of 1863,) fi 142. •» Alire V. V. S., 1 Ct. CI., 233. " In a recent case, in G. C. M. O. 12 of 1882, three Indian scouts in the U S service were sentenced to be hung on conviction of murder in violation of Art. 58, (and mutiny ) committedjn Arizona, during a period of active hostilities against Apaches. wars. n See Chapter VIII, p. 101— Jurisdiction under Art. 63 : Application to Indian MnjTABY LAW AND PBECBDENTS. 671 didal to good order emd military disciplvne ; " " or may constitute "conduct unbecoming an offlcer and a gentleman " within the meaning of Art. 61." Under Art. 62, courts-martial have duly and not unfrequently taken cognizance of civil crimes wh«n committed by soldiers, (and within the above description;) and that this jurisdiction Is not affected by the provisions of Art. 58 Is thus noticed by the U. S. Supreme Court In the recent case of Eso parte Mason : "—"As it " (Art. 58) " is to operate In time of war. It neither adds to nor takes from the powers which courts-martial have under the i62d Article in time of peace." The military jurisdiction conferred by the Article not exclusive of that o£ the civil courts. That the jurisdiction created by the Article is not exclu- sive of, but concurrent with, that possessed by the criminal courts of the United States or the States, has been repeatedly declared. Thus, in the leading case on this point, Coleman v. Tennessee," the Supreme Court holds as fol- lows : — " The section does not make the jurisdiction of the military tribunals exclusive of that of the State courts. It does not declare that soldiers com- mitting the offences named shall not be amenable to punishment by the State courts. It simply declares that the offences shall be punishaUe, not that they shall 6e punished bj the military courts ; and this is merely saying that they may be thus punished. Previous to its enactment the offences designated were punishable by the State courts, and persons in the military service who com- mitted them were delivered over to those courts for trial; and it contains 1040 no words indicating an intention on the part of Congress to take from them the jurisdiction in this respect which they had always exercised. With the known hostility of the American people to any interference by the military with the regular administration of justice In the civil courts, no such intention should be ascribed to Congress in the absence of clear and direct language to that effect." " THE CRIMES SPECIFIEIJ IN THE ARTICLE. These crimes will be de- fined in the following order : — ^Murder, Manslaughter, Mayhem, Rape, Robbery, Arson, Burglary, Larceny, Assault and Battery with intent to kill, &c. For anything further than definitions and the details of definitions, the student must be referred to the treatises of the approved authorities on criminal law and the rulings in adjudged cases. To be defined by the coinm.oii law. It Is to be observed that as these crimes are not specifically defined in the Article, or elsewhere in the written military law, they are to be interpreted by the doctrines of the common law, each being viewed as the common-law offence of the same name." " See poet — Sixty-Second Article. » See post — Sixty-First Article. "105 U. S., 699. "97 U. S., 513-14 — a case of a homicide committed by a soldier In Tennessee In 1865. »And, to a similar effect, see People v. Gardiner, 6 Park., 143; State v. Rankin, 4 Cold., 146 ; Whiting, War Powers, 376 ; G. O. 29, Dept. of the Northwest, 1864 ; Do. 32, Dept. of La., 1866. But in Coleman v. Tennessee, ante, the Court was careful to note that the above statement of the law did not apply to courts-martial held In an Insurgent State, i. e.. In the enemy's country during the late war. " When," It Is said, " the armies of the United States were In the enemy's country, the military tribunals mentioned had, under the laws of war and the authority conferred by the section named." (the enactment now contained In Art. 58,) "exclusive Jurisdiction to try and punish offences of every grade committed by persons in the military service." (97 U. S., 515.) And see, to the game effect, Tennessee v. Hlbdom, 23 Fed., 795.. "That common-law rules are to be followed In defining designations of crimes, and construing technical words, in crinrinal statutes, (In the absence of specific definition in the statute Itself,) see U. S. v. King, 34 Fed., 302, 306 ; V. S. v. MagiU, 1 Washington, 463 ; V. S. V. Outerbrldge, 5 Sawyer, 620 ; 1 Hale, P. C, (Am. Ed.,) 454, notes. 672 MUJTART LAW AND PBKCEDENTS. De^ees of crime not known to the law military. In this connection It may also be noted that no such distinctions as degrees of offences, such as are estabUshed by the statutes of some of the States, are recognized by the 1041 military law," and that such distinctions have no bearing whatever upon the subject of the definition of the crimes specified in the Article, but are material only with reference to the question of their punishment, hereafter to be considered. MTTBDEB — ^Definition. Murder, at common law, is the unlawful killing, by a person of sound memory and discretion, of any reasonable creature in being and under the peace of the State, with malice aforethought either express or implied." The homicide must be unlawful, that is to say " felonious " or other than " justifiable " or " excusable ; " It must be committed by one who Is neither non compos nor an Infant under the age of criminal capacity; the person assailed must be a living being, (not an unborn chUd;) such person must be entitled to the protection of the laws, not a public enemy** nor a pirate ; and lastly the act must be characterized by " malice aforethought " or "malice prepense," i. e. evil and deliberate purpose. A brief description of murder which would cover all case3 likely to arise under the present Article would be — the unlawful killing, with malice afore- thought, by a legally responsible person, of any other person not a public enemy; or, as all killing with malice aforethought must be unlawful, as a per- son not legally responsible cannot be chargeable with malice aforethought, and as no killing of a public enemy can be regarded as committed with such malice, — murder, at common law and unaffected by statute, may be simply and briefly described as homicide with malice aforethought." " The definition of murder Is completed by adding that, to constitute this crime, the death must occur vnthin a year and a day after the date of the act. This is the rule for both species of homicide, murder and manslaughter, at common law. Where the death is not shown to have followed within a year and 1042 a day, the law presumes that the wound or Injury was not the occa- sion of the death — that it proceeded from some other cause." It may here be noted that where the act which Is the cause of the death Is committed in one State or district, while the actual death occurs in another. It is the former place which Is in law, as held in Guiteau's case," the place of the murder or homicide. Uallce aforethought. The term malice, as ordinarily employed in criminal law, is a strictly legal term, meaning not personal spite or hostility but simply the wrongful intent essential to the commission of crime. When used, however, in connection with the word "aforethought" or "prepense," in defining the particular crime of murder, ft signifies the same evil Intent, as the result of a determined purpose, premeditation, deliberation, or brooding, and therefore as indicating, in the view of the law, a malignant or depraved nature, or, as the early writer, Foster, has' expressed It, "a heart regardless of social duty and "See ante, p. 149. So, no such discriminaUons are recognized In the laws of the United States relating to civil crimes. D. S. v. Outerbrldge ante «Coke, 3 Inst., 47 ; 4 Blaclj. Com., 195 ; 1 East, P. C, 214 ; 1 Russell, 482 • 1 Gabbett 454; 3 Greenl. Ey. 8130; 1 Wharton, C. L. S 303; 2 Bishop, C. L. 8 732 and notS, • Com. V. Webster, 5 Cush.. 304; G. O. 23, Dept. of Cal., 1865 « That taking the lite of an enemy, after he has 'surrendered, or while held as a prisoner of war, is murder— see State v. Gut. 13 Min., 341 "Compare Holland •». State, 12 Fla 117 ti'^l'^^^J- ' ^^°' 13^-°°t«' "3; 1 Wharton, C. L. 8 312 ; 2 Bishop, C. U 8 640 " V. S. V. Gulteau, 1 Mackey, 498 ; State v. Kelly, 76 Maine, 331. "' ^- »- « S*". MILITARY LAW AND PHECEDENXS. 673 fatally bent upon mischief."" Tlie deliberate purpose need not have been long entertained ; it is sufficient if it exist at the moment of the act. Malice afore- thought is either " express " or " implied ; " express, where the intent,— as mani- fested by previous enmity, threats, the absence of any or of sufficient provoca- tion, &c., — is to take the life of the particular person killed, or, since a specific purpose to kill is not essential to constitute murder, to inflict upon him 1043 some excessive bodily injury which may naturally result in death ; " im- plied, where the intent is to commit a felonious or unlawful act but not to kill or injure the particular person — as where a party, intending to kill by shooting, &c., one person, actually hits and kills another ;" or, when detected In a burglary, flres his pistol in the dark to aid his escape and kills an inmate of the house ; or, being engaged in a riot, fires indiscriminately and kills some one; or, in resisting an officer of justice engaged in the execution of his duty, unintentionally kills him, &c." Thus a soldier who resists a military superior, when legally engaged in making an arrest or executing any other duty, and in resisting kills him, though not purposely, Is guilty of murder in law." In every case of apparently deliberate and unjustifiable killing, the law presumes the existence of the malice necessary to constitute murder, and de- volves upon the accused the onus of rebutting the presumption. In other words, where in the fact and circumstances of the killing as committed no defence appears, the accused must show that the act was either no crime at all or a crime less than murder ; otherwise it will be held to be murder in law." • "Crown Law, p. 257, 262. In Com. v. Webster, 5 Cush. 304, Shaw, C. J., says of " malice " In the term " malice aforethought," that it Is " used in a technical sense, Including not only anger, hatred, and revenge, but every other unlawful act and unjusti- fiable motive. It is not confined, to ill will toward one or more individual persons, but is Intended to denote an action flowing from any wicked and corrupt motive." And see the case of murder, indicating a malignant animue, commented upon by Gen. McDowell in G. O. 23, Dept. of Cal., 1865. In U. S. v. King, 34 Fed. 306, the definitions cited of malice are — "An intent to do injury to another ; " or " a design formed of doing mischief to another." And see U. S. v. Meagher, 37 Fed. 878-879. »•■" The law considers that the party meant to effect what was the natural consequence of his act ; that if the natural consequence of his act was death, he meant to kill." U. S. t>. McGlue, 1 Curtis, 3. That killing in a duel is murder, see ante, p. 591 — "Twenty- Sixth Article." «2As In the case of a soldier who. In resisting arrest by an officer, discharged his musket at him with intent to kill him, but killed instead another soldier. Angell v. State, 36 Texas, 542. And see the recent case of Finder v. State, 27 Fla. 370. » See U. S. V. King, 34 Fed. 312 ; U. S. v. Meagher, 37 Fed. 880. " See U. S. V. Travers, 2 Wheeler, C. C. 490, where the killing was by a private marine of an orderly sergeant who was properly attempting to arrest and restrain him while engaged in a brawl. « Foster, 255 ; 1 Gabbett, 455, 502 ; Manual, 110. " When, on the trial of an indict- ment for murder, the killing is proved to have beep committed by the defendant, and nothing further Is shown, the presumption of law is that it was malicious, and an act of murder, and proof of matter of excuse or extenuation lies on the defendant." Com. v. York, 50 Mass. (9 Met.) 93. "Malice is Implied In every case of intentional homicide; that Is to say, when once It is established that a person was Intentionally killed, the law Implies that malice existed in the person who caused the death. If there are any cir- cumstances of excuse or palliation which ■ will rebut the presumption of malice, It Is incumbent on him to show them." U. S. v. Outerbrldge, 5 Sawyer, 622. And see U. S. V. Travers, 2 Wheeler, C. C. 490 ; Holland t'. State, 12 Fla. 117 ; People v. Gibson, 17 Cal. 283 ; People v. Walter, 1 Idaho, 393. The rule, as applicable to military cases. Is similarly stated in the Manual of Military Law, p. 71, as follows — " Whereit Is proved that an unlawful act has been committed, a criminal intention Is presumed, and the proof of Justification or excuse lies on the pris- oner. On a charge of murder the law presumes malice from the act of killing, and throws on the prisoner the burden of disproving the malice by Justifying or extenuating the act." 440593 O - 42 - 43 674 MrUTABY LAW AND PRECEDENTS. 1044 Justifiable and excusable homicide. The definition of Murder is well illustrated by tlie two defences apposite to this charge, viz : 1, that the killing was not murder but manslaughter ; i. e. a killing without " malice ;" 2, that it was not felonious but justifiable or excusable in law." The distinction between murder and manslaughter will be further noted presently. Homicide is said to be " justifiable " when committed by a public officer in the due execution of the laws or administration of public justice, or when committed by any person in the due prevention of a violent crime. Thus, homicide is justifiable where committed by an officer of the army, or at his instance, in the suppression of an actual mutiny or other violent disorder, or in the capture of an escaping prisoner or deserter, where no other adequate means are available for the purpose. Homicide Is in law " excusable " where it is the result of accident or mishap, or where It is committed in self-defence. Self-defence. " A man may oppose force to force in defence of himself, his family or property."" Only such amount of force, however, may be used as is reasonably proportionate to the danger. Killing in defence of the person will be justified where the circumstances are such as to warrant the conviction that danger to life or serious bodily harm is threatened and immediately impending." In defence of property, killing, as a means of preventing a trespass unaccom- panied by violence, will not be justified. Where the trespass is serious, as in a case of housebrealdng with evident felonious Intent, the occupant, especially if the breaking be in the night, will be justified in taking life in protection of his domlcil. As, under a charge of murder, evidence may be given of the 1045 disposition of the accused, so, upon a plea of self-defence, It may be shown that the person killed was of a vindictive or violent nature." MANSLATTOHTEB. This crime is defined as an unlawful killing tcithout malice aforethought express or implied." It is this absence of malice afore- thought which distinguishes manslaughter from murder ; its commission being ascribed to the " infirmity of human nature," and not to a depraved or wicked heart." The only malice in manslaughter thus is the wrongful Intent which is an ingredient in crime in general. Homicide is commonly manslaughter, " Homicide Is described by the authorities as of three species : — " felonious " homicide, (which is either murder or manslaughter,) " Justifiable " homicide, and " excusable " homicide, — the two latter not being crimes at all. The defence that homicide Is justi- fiable or excusable Is pertinent to an Indictment or charge either for murder or man- slaughter. " U. S. V. Wiltberger, 2 Washington, 515. M " The law of self-defence justifies an act done In honest and reasonable belief of immediate danger." E. R. Co. v. Jopes, 142 U. S., 23. " Or of a " bad temper or a quarrelsome disposition." Williams v. State, 74 Ala., 18 ; Territory v. Harper, 1 Ariz., 599. On a trial, in 1894, of an officer for a shooting of another officer, in violation of Art. 62, which resulted In the killing of the latter, the court-martial permitted the accused, who claimed that he had acted in self-defence, to put in evidence a General Court-Martial Order, of 1872, (twenty-two years before,) setting forth charges against the accussed, not necessarily indicating a violent nature or a choleric or pugnacious disposition, with the conviction and sentence adjudged thereon. This evidence was held by the Judge Advocate General to have been wholly inadmissible, (Digest, 402,) and the acquittal of the accused was disapproved by the President. G. O. 28 of 1894. ••Compare the definition in Sec. 5341, Rev. Sts., of manslaughter, in D. S. law, an " unlawful and wilful killing of another but without malice." " " The true nature of manslaughter Is, that is it homicide mitigated out of tenderness to the frailty of human nature." Shaw, C. J., in Com. v. Webster, 5 Cush., 307. And see 4 Black. Com., 191 ; 3 Greenl. Ev. I 119. 125 ; 1 Wharton, C. L. $ 304 ; 2 Bishop, C L 5 625, 672 ; G.. O. 23, Dept. of Cal., 1865. MILITARY LAW AND PBECEDENTS. 675 Where, being unaccompanied by an Intent to kill, it yet lacks some element which would have made It " justifiable " or " excusable " in law. The authorities specify two kinds of manslaughter — voluntary and involuntary. " Voluntary " manslaughter (the more usual of the two) is that which is com- mitted in a moment of excitement or while under the influence of passion, and commonly either in the course of a sudden fighting or upon some immediate strong provocation. To determine whether an act of homicide is murder or voluntary man- slaughter, the main test is the quality of the provocation by which the act was induced. Mere words, however gross or insulting, will not justify taking life, and where a homicide is committed under no other provocation than irri- 1046 tating language, the killing will be murder in law." The same is true of gestures, unless they be of a character manifestly threatening to life — as where a pistol or other deadly weapon is evidently attempted to be drawn and used: in such case the crime committed may be reduced to manslaughter. In any case where the provocation, though material, is not excessive, as where a bare trespass is committed on property other than a dwelling, or where the person Is assailed but not seriously; or where a more considerable battery is committed but by a party not accountable — as a drunken man, — the law will in general hold the killing to be not manslaughter but murder. " Involuntary " manslaughter consists in the accidental and unintentional causing of death, either by the doing or attempted doing of an act which, though unlawful, is not felonious or highly criminal or likely to be dangerous to human life, or by the doing of a lawful act in an incautious or negligent manner." Thus where a military superior, in the act of enforcing law or discipline, takes unintentionally the life of an inferior, when less extreme means of preveniion or restraint are available, his act is without justification and he is guilty 1047 of involuntary manslaughter."* Similarly where a superior, by the imposi- tion of an excessive punishment or measure of discipline, causes, presently " " No mere words applied by one man to another will justify the use of a deadly weapon; nor can they be the lawful occasion of that 'heat' which would reduce the act of killing from murder to manslaughter." TJ. S. v. Carr, 1 Woods, 480. And so of defamatory newspaper articles. State «. Ellliott, Ohio Com. PI., 26 Wkly. Law Bui., 116. "In U. S. V. Meagher, 37 Fed., 880, the court, (Maxey, J.,) observes that "the distinc- tion between voluntary and involuntary manslaughter is now obsolete at common law." But the common law does not thus change, and the distinction Is believed to be a well- considered and wise one. "* In G. C. M. O. 47 of 1877, in a case of an ofiScer convicted of manslaughter in causing the death of a soldier by unnecessarily assaulting him with his sword, the Secretary of War observes as follows : — ■" It will be especially remembered by officers that the use of the sword or bullet to enforce their authority can only be Justified by a necessity for the Instant suppression «f mutiiiy or violence. The law. In conferring this exceptional power of life or death updn an officer of the Army, expects in him the equable temper and Judg- ment requisite for its proper exercise, and holds him accountable accordingly; It 1b highly disgraceful for an Officer so to lose his head as to he unable to discriminate between a drunken brawl and a mutiny." And see case in G. C. M. O. 93 of 1867, In which an officer is' convicted of Causing the death of a deserting soldier by having him needlessly shot down ; also Do. 153 of 1866 ; Pigest^ 486 ; Ensign Maxwell's case, Frendergast, 162. And note Rex v. Thomas, 1 Kussell, Cr., 732, a case of an unnecessary shooting and kill- ing of a civilian by a sentry. Otherwise, where the shooting, &c., and killing were the only adequate means. Digest, 485 ; G. C. M. O. 177 of 1865 ; G. O. 89, Second Mil. Dist., 1868 ; S. O. 158, Hdqrs. Gen. Kec.'ser., N. York, Nov. 5, 1868. And compare 14 Opins. At. Gen., 71. It is remarked by the Court in U. S. *. Carr, 1 Woods, 484, that " the law will not require an officer charged with the order and discipline of a camp or fort to weigh with scrupulous nicety the amount of force necessary to suppress disorder. The exercise of a reasonable discretion is all that is required." 676 MHJTART lAW AND PRECEDENTS. or eyentnally, the death of ao inferior, such superior is chargeable with Involuntary manslaughter." And the legal crime will be the same where the superior causes the death of another by reason of negligence, in not properly radiating the use of fire-arms in his command — as in target firing or artillery IM-actice." MAYHEM. Mayhem, maunlng, or maim, at common law, is the violently inflicting, upon any part of a man's body, of such an injury as to render him less able to fight or defend himself against his adversary ; the gravamen of the offence being that the act permanently disables the person " to fight in defence of the king and country, and as a soldier protect himself on the field of battle." " Thus, while to cut off or disable a hand, an arm, or a leg, or to strike out or blind an eye, was a mayhem at common law, to deprive a person of an ear or of his nose was held not to be, since such an injury would disfigure only and not incapacitate for war-service." Acts Indeed of the latter character have, 6y 1048 statute, been made punishable similarly to common-law maims,* but such acts would not, by a military court, properly be cognizable as " mayhem " under the present Article," which, as to this term, is to be interpreted by the common law." To constitute mayhem, it was not deemed essential that the injury should be inflicted upon another ; a self-mutilation being regarded as within the definition. Thus a soldier who deprived himself of the use of a member necessary to qualify him for the military service, was considered to be chargeable with a mayhem." The malice, or criminal purpose, essential to legal mayhem, viz. the intent to effect the disabling of a member, may be presumed from the circumstances of the act by which the maiming is effected. It is not necessary to show that " 1 Wharton, C. L., S 431 ; V. S. v. Cornell, 2 Mason, 91. In V. S. v. Freeman, 4 Mason, 505, a master of a vessel who caused the death of a sick seaman by forcing him to go aloft was convicted of manslaughter. If the act is characterized by a brutal or cruel animue the offence will be murder. Id •• See Regina v. Hutchinson, 9 Cox, 555 ; also case in G. C. M. O. 14, of 1871. •» 1 Hawkins, c. 44, a. 1,* 4 Black. Com., 205 ; 1 RusseU, 719 ; 1 Gabbett, 98 ; I Wharton, C. L. S 581 ; 2 Bishop. C. L. $ 1001 ; Com. v. Newell, 7 Mass., 248 ; State v. Briley. 8 Port., 474. Neither the weapon or instrument by which, nor the manner in which, the disabling or injury is effected, is material. 17. S, v. Scroggins, Hempstead, 478 ; Rex v. Carroll, I^each, 55. It is no less mayhem, though the severed member is restored to its place and grows again. Slatterly v. State, 41 Texas, 619. " 1 Hawkins, c. 44, s. 2 ; 4 Blac^. Com.. 205 ; 1 Russell, 720 ; 1 Wharton, C. L. % 581 ; Scott V. Com., 6 S. & R., 226. •" Thus by the act of April 30, 1790, t. 9, a. 13, (now Sec. 5348, Rev. Sts.,) the mali- ciously cutting off an ear, cutting out or disabling the tongue, putting out an eye, slit- ting the nose, cutting off the nose or lip, and the cutting off or disabling of any lunb or member, with intent to maim or disfigure, are made together equally and alike punish- able with imprisonment and fine. Our statute is derived mainly from the 22 & 23 Charles II, c. 1, known as the " Coventry Act,"' from Sir John Coventry, a member of parliament, who had been assaulted by a slitting of the nose. See U. S. v. Scroggins, Hempstead, 478. " In a recent case in G. C. M. O. 103, Dept. of the Mo., 1881, in which the biting off, by a soldier, of a large piece of the ear of another soldier was charged as " Mayhem In violation of the 62 Art of war," — ^while such chaifge was properly held a substantially sufficient pleading of a disorder under the Article named, and the proceedings were approved, it was well remar)(ed that the act did "not constitute mayhem within the common law meaning of that term." And see the similar cases In 6 O 86 Dept of Texas, 1870 ; Do. 36, Dept. of the Platte, 1871. "As to this rule of interpretation as applying to the present Article generally, see ante — ^Mdbdeb. "Rex t!. Wright, 1 East, 396 ; 1 Bussell, 7?0. " One may not innocently maim himself and, if at his request another malms him, both are guilty." 1 Bishop, C. L. { 259 ' MILITABY LAW AND PEECEDENTS. 677 this Intent was the result of deliberation, since It may be formed Instantane- ously, or upon or In the course of a sudden encounter or combat." As in 1049 the case of homicide, the charge may be disproved by evidence showing that the injury caused was committed In self-defence." BAPE-r-Definition. Rape Is defined as the unlawful carnal knowledge of a woman forcibly and against her will or consent." The persons. It is a general principle that rape must be committed by a male person of at least fourteen years of age ; it being a conclusive presumption of the common law that a person of a less age is physically incapable of its perpetration. It is therefore the almost uniform ruling of the courts that where the accused is under fourteen, evidence to show that he Is an exception to the rule and in fact capable will be inadmissible." The person upon whom the crime is committed may be of any age ; a female is never too young to be the subject of it." So, its subject may be any woman except the legal wife of the accused, even although she be his mistress, or a common harlot." The carnal knowledge. This is established by proof of penetration only. The least penetration will be sufficient. It is not necessary to prove emission nor even that the hymen was ruptured or Injured." " The essence of the 1050 crime," as the court observe in an early case, " is not the begetting of a child, but the violence done to the person and feelings of the woman, which is completed by penetration." " The force. The force implied in the term " rape " may be of any sort, if sufficient to overcome resistance. The intent to ravish by force, notwithstanding " 1 East, P. C, 393. It 1b to be noted that In mayhem under the TI. S. statute — Sec. 5348, Rev. Sts. — ^no premeditated design Is necessary to complete the offence. Thus a soldier, committing a mayhem by accident, would be amenable to trial by a federal (or Territorial) court. See XT. S. v. Gunther, 5 Dakota, 534, where the conviction was affirmed of a sergeant, who, at Fort Yates, In effecting the arrest of a private. In the line of duty, accidentally put out his eye. " 1 Wharton, C. L. § 582 ; 1 Bishop, C. L. { 257. " Co. Lit., 123 b ; 1 Hawkins, c. 41, s. 1 ; 4 Black. Com., 210 ; 1 Bast, P. C, 434 ; 1 Russell, 675 ; 1 Gabbett, 831 ; 3 Greenl. Ev. § 209-; 1 Wharton, C. L. § 550 ; 2 Bishop, C. L. § 1113. " 1 Hale, 630 ; 4 Black. Com., 212 ; 1 Russell, 676 ; 3 Greenl. Ev. § 215 ; 1 Wharton, C. L. S 551 ; 2 Bishop, C. L. § 1117 ; Reg. «. Phillips, 8 C. & P., 736 ; Reg. v. Allen, 9 C. & P., 31 ; People i>. Randolph, 2 Park., 213 ; State v. Handy, 4 Harr., 566 ; State v. Sam, Wlnst., 300. " 2 Bishop, C. L. § 1118 ; Stephen v. State, 11 6a., 227. ™ 1 Hale, 628 ; 1 Hawkins, c. 41, s. 2 ; 4 Black. Com., 213 ; 1 Russell, 677 ; 1 Gabbett, 832 ; 3 Greenl. Ev. 5 211 ; 1 Wharton, C. L. § 564 ; 2 Bishop, C. L. ! 1119 ; People v. Abbott, 19 Wend., 192 ; Pleasant v. State, 13 Ark., 362 ; Higgins v. People, 1 Hun, 307 ; G. O. 26, Fifth Mil. Dist., 1867. In stating the law, that rape may be committed even upon a concubine. Bast, (1 P. C, 445,) adds— "for a woman may forsake her unlawful course of life, and the law will not presume her incapable of amendment." w 1 East, P. C, 438 ; 1 Russell, 678-9 ; 3 Greenl. Bv. f 210 ; 1 Wharton, C. L. § 554, 555 ; 2 Bishop, C. L. § 1132 ; Reg. v. Allen, 9 C. & P. 31 ; Reg. v. Jordan, Id., 118 ; Reg. v. Hughes, Id., 752 ; State v. Le Blanc, 3 Brev., 339 ; Waller v. State, 40 Ala., 325. TTpon this point, however, the English rulings conflicted In some measure until the law was settled by' the statute of 9 Geo. 4, c. 31, which enacted that — " the carnal knowledge shall be deemed complete upon proof of penetration only." Statutes to a similar effect exist in many of our States. "Pennsylvania v. Sullivan, Add., 143. "The essence of the crime consists In the violence done to the person of the sufferer, and to her sense of honor and virtue." 3 Greenl. Bv. § 210. Or, in the language of Foster, (p. 274,) " her quick sense of honor and pride of virtue." 678 MILITARY LAW AND PRECEDENTS. resistance, Is the gist of tlie offence." It Is not essential that the force em- ployed consist in physical violence; it may be exerted in part or entirely by means of other form of duress, or by threats of killing or of grievous bodily harm or other Injury, or by any moral compulsion." A less degree of force or intimidation will ordinarily be required to be shown where the female is of tender age, in feeble health, or imbecile, than where she is mature, strong and intelligent." Non-consent. Absence of free will, or non-consent," on the part of the fe- male, may consist and appear in her making resistance till overpowered by physical force ; in her submitting because, in view of the strength and violence of her assailant or the number of those taking part in the crime, resist- 1051 ance must be useless if not perilous ; " in her yielding through reasonable fear of death or extreme injury Impending or threatened ; in the fact that she is rendered senseless and Incapable of resistance by Intoxicating drink or a stupefying drug ; "' in the fact that she is imbecile or otherwise non compos," or that she is a child under the age of ten — in which case the law presumes that she is incapable of consenting to this act ; " In the fact that her will has been constrained, or her passive acquiescence obtained, by fraud, surprise, false pretence, or other controlling means or Influence." As to the details of the proof required to establish the offence under the dif- ferent circumstances of its perpetration, the subject of the testing of the credi- bility of the prosecutrix, the defences which may be set up to the charge, &c., the student must be referred to the treatises on criminal law and the author- ities therein cited." BOBBEBY — Definition. Robbery, at common law, is a felonious taking of his property from the person, or presence of another, by means of violence, " " The jury must be satisfied that the prisoner when he laid hold of the prosecutrix. Dot only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part." Rex v. Lloyd, 7 C. & P., 318, And see 1 Russell, 692 ; Com. -o. Merrill, 14 Gray, 417. '" " If the woman submitted from terror, or the dread of greater violence, the intimida- tion becomes equivalent to force." Pleasant v. State, 13 Ark., 374. If the Jury are "satisfied that her will was overcome -by fear of the accused," a conviction will be proper. Strang ■». People, 2 Mich., 1. And see 1 HawlJins, c. 41, s. 6, 1 East, P. C, 444 ; 1 Russell, 677 ; 3 Greenl. Ev. § 211. " See 1 Wharton, C. L. § 558, 560 ; 2 Bishop, C. L. % 1123, 1124. "It is rather more precise to describe the act as committed against or without the consent than against the will of the female, since cases of rape may occur where the woman, while certainly not consenting, is incapable of exercising will at the time. See definition in 2 Bishop, C. L. § 1115. » " If non-resistance on the part of the prosecutrix proceeds merely from her being overpowered by actual force; or from her not being able, from want of strength, to resist any longer; or if, from the number of persons attacking her, she considered resistance dangerous and absolutely useless, the crime is complete." 1 Russell 677. "A consent induced by fear of personal violence is no consent." 2 Bishop, C. L. § 1125 " 3 Greenl. Ev. § 211 ; 1 Wharton, C. L., 562 ; 2 Bishop, C. L. § 1121, 1125, 1126 ; Reg. V. Camplin, 1 C. & K., 746 ; Com. ■«. Burlse, 105 Mass., 376 ; Com. v. Beale, 2'whart! & Stllie, Med. Jur. § 245. It does not affect the case that the insensibility or powerlesa- ness be self-induced. In some of the States carnal knowledge of an intoxicated female is made a separate, statutory offence. "2 Bishop, C. L. §1123; Rex v. Fletcher, 8 Cox, 131; State v. Tarr, 28 Iowa 397 «1 Hale, 628; 3 Greenl. Ev. § 211; Stephen v. State, 11 Ga., 225; G. O 14 Dgnt'of the South, 1866. ' '^ »» See 1 Russell, 677 ; 3 Greenl. Ev. j 211 ; 1 Wharton, C. L. § 559 ; 2 Bishop c L S 1122 ; Reg. v. Case, 4 Cox, 220 ; H»x v. Stanton, 1 C. & K., 415 ; Walter v People 50 Barb.. 144. ' » See, for example, 1 Russell, Book III, Ch. Fifth ; 1 Wharton, C. L., Book II Ch II • 2 Bishop, C. L., Book X, Ch. XXXVI. ' ' MILITARY LAW AND PRECEDENTS. 679 1052 or putting In fear." Its nature is well Illustrated by comparing It with larceny. Thus it is called by Blackstone "— " an open and violent larceny tronj the person ; " and Bishop " writes : — " Bobbery is a species of aggravated larceny, committed from the person, (or from his immediate presence and custody, deemed in law a taking from the person,) the principal aggravating matter being usually, not always, an assault." And the same author further characterizes robbery as " a mere compound larceny." " The felonious intent. The term "felonious," in the definition of robbery, refers to the sort of criminal intent with which, in this crime as in larceny, the taking must be accompanied, viz. the purpose to steal or animus furcmdi; In other words the intention illegally to possess one's self of the property of another without his consent." Thus if a party take forcibly from another an article of property under a bxma fide belief that it Is his, (the taker's,) own, the act Is not robbery but a trespass only ; but in such case it must clearly appear that the claim of title was an honest one." The taking. To constitute the taking in robbery, the property must pass into the actual possession of the alleged taker, although it remain in his 1053 possession but for a very brief period." There may be a taking in law as well as in fact ; "" as where the property is not seized, but, by force, threats, or other Intimidation is caused to be delivered to the accused, or to come into his hands." So Is the taking held to be robbery in law, where it Is pretended to be, or is given the form of, a regular transaction by the offender, force or intimidation being however at the same time employed."™ The property. This may be personal property of any description or value. It must indeed possess some value, but how much Is immaterial." " A penny as well as a pound, forcibly extorted, makes a robbery." " The property need not be held by the party by right of absolute ownership : It is sufficient if he has in it only such special property as may arise from Its being In his legal custody as agent, bailee, or trustee, that is to say a right of possession, use, &c. Indeed in robbery the essential point as to the ownership of the property is, not so " Coke, 3 Inst., 68 ; 1 Hale, 532 ; 1 Hawkins, c. 34 ; 4 Black. Com., 242 ; 3 Chitty, C. L., 801; 1 Russell, 867; 3 Greenl. Ev. S 223; 1 Wharton, C. L. § 846; U. S. v. Jones, 3 Washington, 216; Com. v, Clifford, 8 Cush., 216. " 4 Com., 243. The taking must be by force or a previous putting in fear, which makes the violation of the person more atrocious than privately stealing. For, accord- ing to the maxim of the civil law, " gui vi rapuit, fur improMor esse videtur." " This previous violence or putting in fear Is the criterion that distinguishes robbery from other larcenies." Id. Robbery Is also " distinguished from larceny In being a violent or demonstrative act In the presence of the party assailed, while larceny is in general characterized by secrecy, privacy, or fraud." Mahoney «. People, 48 How. Pr., 186. "1 C. li. % 992, (third edition.) In the seventh edition, § 1156, the definition is— " Robbery is larceny committed by violence from the person of one put in fear." "1 C. L. § 1158. » 1 Russell, 871 ; 3 Greenl. Ev. ( 227 ; 1 Wharton, C. L. { 848. » See Rex v. Hall, 3 C. & P., 409 ; 1 Russell, 871 ; 1 Wharton, C. L. S 848, 853. That the taking of property under alleged belligerent rights, that is to say by the authority of a proper military superior in time of war, Is not robbery — see Com. v. Holland, 1 Duv., 182 ; Hammond v. State, 3 Cold., 129. " " Any appreciable, though momentary, removal of the Article from the possession of the owner or holder, will be sufficient." Rex v. Lapler, 1 Leach, 320. And see 3 Chitty, C. L. 802 ; 1 Russell, 870. "1 Russell, 871; 3 Greenl. Ev. { 226. " 1 Wharton, C. L. S 849 ; TJ. S. v. Jones, 3 Washington, 216 ; Rex v. Wlnkworth, 4 C. & P., 444 ; Rex v. Edwards, 6 Id., 521 ; 2 East, P. C, 711-731, and cases cited. »» 1 Hale, 533 ; 1 Russell, 871 ; 2 East, P. C, 712 ; Case of Private Britton, G. O. 17 of 1864, (where however the offence is, erroneously, charged as " grand larceny.") •Coke, 3 Inst, 69; 2 East, P. C, 707; 1 Gabbett, 582; 3 Greenl. Ev. 8 224; Rex -o. Bingley, 5 C. & P., 602. '1 Russell, 869. 680 MILITABT LAW AND PRECEDENTS. much that It should belong to the person robbed as that it should not belong to the taker.' The person or presence. It is characteristic of robbery that it is an offence as well against the person as against property, the violent harm or wrong done to the individual being indeed the element which gives it its gravity. The term person includes the body and the clothing. It Is not necessary that the indivf- dual should have been aware that he has parted with his property, since he may at the time have been rendered insensible by a blow or otherwise,* or, occupied with the assault, may not have perceived the abstraction of the article.' 1054 It is also not essential that the article, when taken, should be in the actual bodily possession of the party : the possession may be constructive as well as actual, and if the taking be from his immediate custody or charge, or — as it is commonly expressed — from his presence, the act, in law, will be equiva- lent to a taking from the person.* The force, or putting in fear. The employment of force and the induce- ment of fear may both concur in a case of this crime, but proof of either will be suflScient to establish the specific offence.' This element is sometimes described as " force actual, or constructive ;" actual force, as it is expressed by Tilghman C. J., in a case in Pennsylvania,' " being applied to the body ;" constructive, " operating, by threatening words or gestures, on the mind." The force may consist in any battery or duress sufficient to disable or overcome resistance,' but it must be physical : fraud, for instance, will not supply the place of actual vio- lence." The putting In fear may be by a display of superior force or numbers, by menace of death or other considerable bodily harm, by intimidating demon- stration without words, by threats of destruction or injury to valuable property, &c. The fear, to supply the place of actual violence, need not amount to great fright or terror, but the circumstances must be such as to excite a reasonable apprehension of the danger menaced and to constJ-ain the will." ABSON — Definition. Arson, at common law, is the malicious burning 1055 of the house of another." " It is," says Blackstone," " an offence against the right of habitation " which is acquired by the law of nature as well » Com. V. Clifford, 8 Cnsh., 218 ; People v. Vice, 21 Cal., 345. • See Poster, 128. • Com. V. Snelling, 4 Bin., 379. • 1 Hale, 533 ; 4 Black. Com., 243 ; 2 East, P. C, 707 ; 3 Chltty, C. L., 802 ; 1 Russell, 873; 1 Gabbett, 583; 3 Greenl. Ev. § 223, 228; 2 Bishop, C. L. ; 1177, 1178. 'The force must be employed before or with the taking. '-A sut'aegueni violence or putting in fear will not make a precedent taking, effected clandestinely or without either violence or putting in fear, (as a larceny,) amount to robbery." l Russell 874 « Com. V. Snelling, 4 Bin., 383. ' • 3 Chitty, C. L., 804-5 ; 2 East, P. C, 708 ; 1 Russell, 871, 875-6 ; 1 Gabbett. 583 • 3 Greenl. Ev. % 229. >» See 2 Bishop, C. L. S 1166. " 3 Chitty, C. L., 803 ; 4 Black. Com., 243-4 ; 2 East, P. C, 713 ; i Russell 874 879 • 1 Gabbett, 582, 587 ; 3 Greenl. Ev. § 229, 231-233. » 1 Wharton, C. L. | 825 ; 2 Bishop, C. L. $ 8. And see Coke, 3 Inst., 66 ; 1 Hale 566 • 1 Hawkins, c. 39 ; 3 Chitty, C. L., 1121; 2 East, P. C, 1015; 2 Russell,' 548; 1 GaN bett, 74. In Sec. 5385, Rev. Sts., arson is described as the wilful and malicious burning of " any dwelling house or mansion house, or any store, barn, stable or other building, parcel of any dwelling or mansion house." It is to be noted that, at common law, the burning of " a 6om stored with fto« or grain," though not within the curtilage or neighborhood of a dwelling, is sometimes described as arson. Thus Chitty, (3 C. L., 1121,) defines drson as a burning of " the house or barn of another." And see 1 Hale, 567 ; 1 Wharton, C. L. § 825 834 "4 Com., 220. " Or, as it is not unfreguently described, — " an offence against the possession " See post. MILITARY lAW AND PRECEDENTS. 681 as by the laws of society ; " or — as it is expressed by Bishop "— " though the thing burned is realty, the offence Is rather against the security of the habita- tion than the property in it." Though ordinarily perpetrated under the coyer of darkuess, the time of Its commission, — ^whether in the day or In the night, — is wholly immaterial." Further, not being a crime against human life, it is not essential that there be any human being in the building at the time It is fired." The intent. The burning must be maUoious, that is to say committed with a crinjlnal or felonious intent. Legal malice, as has been heretofore explained, does not mean personal spite or hostility. In arson, therefore. It is not essential that the offender shall be actuated by a purpose to cause loss or injury to any particular individual." The " malice " may be express or implied ; express, where the intent is to bum the particular house which is flred ; implied, where the burning does not correspond with the precise design of the offender — 1056 as where the design is to burn the house of A, and that of B is actually burned instead," or where the burning has resulted from some other felony or criminal act which alone was originally contemplated."" But where the burning results not from such an act but from a mere trespass or negligence, the malice necessary to arson will not be implied.'*' The burning. There must be an actual burning; an intent to burn, not carried out, will not be sufficient. But the burning need not involve the entire edifice or any considerable part of the same ; it is enough if it extend to a small portion, how small is immaterial. And even such portion need not be wholly consumed. To constitute a burning, there need be only some decomposition, wasting, or destruction of the fibre of the wood, or some disintegration of the stone, brick, or other material ; and, in the case of wood, though a mere scorch- ing or smoking is not sufficient,'^ a charring is all that is required." The house. The term " house " in the definition of arson at common law Includes not merely the dwelling or mansion in which the occupant has his abode, but, in the words of Hale," " all out-houses that are parcel thereof, though not contiguous to it or under the same roof." The term has a somewhat broader scope than the term " dwelling-house " in burglary. The house must be a habita- tion, ». e. lived in,** though, if at the time of the offence the occupant and his family chance to be temporarily absent, the quality of the offence will not be ■=1 Bishop, C. L. § 577. " Coke, 4 Inst., 66 ; 3 Chltty, C. h., 1126 ; 2 East, P. C. 1021 ; 3 Greenl. Ev. § 57. " Arson is not necessarily a crime against liuman life or the personal safety of others. Although the endangering of human life is a frequent consequence of its commlssioni it is not one of its necessary characteristics. The offence may be complete without the life of any human being having been put in the slightest peril. The probable danger to life is undoubtedly one of the circumstances which aggravate the offence, but It does not constitute it." People v. Henderson, 1 Park, 563. M " The term malice, in this case as in many others, does not imply a design to Injure the party who is eventually the sufferer, but merely an evil and mischievous Intention, however general, producing damage to Individuals." 3 Chltty, C. L., 1122. " Coke, 3 Inst., 57 ; 2 Bast, P. C, 1019 ; 2 Russell, 549 ; 3 Greenl. Bv. S 56. » On the familiar principle of law that every man is to be taken to intend the natural and probable consequences of his acta. See 3 Greenl. Ev. § 56. !" 1 Hawkins, c. 39, s, 5 ; 4 Black. Com., 222 ; 1 Qabbett, 74 ; 1 Wharton, C. L. § 829. ^ Woolsey v. State, 30 Texas, Ap., 346. M On this part of the subject see Coke, 3 Inst., 66 ; 1 Hawkins, c. 39, a. 4 ; 3 Chitty, C. Ii. 1120, 1121 ; 2 Bast, P. C, 1020 ; 2 Russell, 548 ; 3 Greenl. Ev. f 35 ; 1 Wharton, C. U § 826. M 1 P C 567. And see the terms of Sec. 5885, Rev. Sts., cited ante. =6 Reg. -J.' England, 1 C. & K., 533 ; Surman v. Parley, 14 M. & W., 186 ; Com. v Barney, 10 Cush., 478. 682 MILITABY LAW AND PBECEDENTS. changed in law." The most approved test for determining, in a case of 1057 doubt, whether a domestic out-building is within such reasonable prox- imity as to identify it with the actual residence, in a case of arson, appears to be "to inquire whether the burning of it would endanger the main structure." " The ownership or property. Arson being an offence against the possession and made punishable for the protection of the habitation not of the title, the person indicated in the definition need not be the absolute owner of the house but may have in it the special property of a tenant only." And the nature or duration of his tenancy is immaterial, nor will the law inquire into it, pro- vided the house is shown to be his private dwelling at the date of the offence. It is thus the legal possession rather than the actual ownership which is to determine whose house the building burned should be alleged and proved to be. As arson consists in the burning of the house of another. It is clear — and it Is so held— that for one to burn Ms own dwelling is not arson at common law." BUBGLABT — Definition. Burglary, at common law, is an unlawful breaking and entering. In the night-time, Into the dwelling-house of another, with the intent to commit a felony therein." Like arson, it is an offence, not so much against property as against the peace and security of the habitation, of which Blackstone "' writes that " the law of England has so peculiar and tender a regard to the immunity of a man's house that it styles it his castle, and will never suffer it to be violated with Impunity." The especial significance and aggravation of the crime consists In the fact that the dwelling is invaded in the hours of darkness and repose, when sleep has disarmed the inmates 1058 and exposed them to be assailed or despoiled while defenceless and in terror." The breaking. This may be actual or constructive; that is to say by a direct physical act of force, or Indirectly by means of fraud, artifice, intlmida- dation, or conspiracy with an Inmate of the dwelling." Actual breaking. The force here contemplated Is merely legal force, not violence. A very slight degree of force Is often only required, and the kind of force exerted is quite Immaterial. Burglary being a violation of the security of the habitation, the breaking must be of some portion or fixture of the build- ing relied upon for the protection of the dwelling." The term breaking is used In a technical sense ; an opening, removing, displacing, &c., of any fasten- ing or customary barrier to entrance, being equivalent to an actual breaking or severing." Thus the breaking, in burglary, may consist in picking a lock, opening a locked door by a false key, turning with an Instrument a key left In =" State V. McGowan, 20 Conn., 246; 1 Wharton, C. L. | 835. " See 1 Whartoii, C. L. § 833 ; Gage t>. Shelton, 3 Rich.-, 260. 28 3 Chitty, C. L., 1121, 1124 ; 2 Russell, 551 ; 3 Greenl. By. § 04 ; 1 Wharton, C. L. § 836. » 1 Hale, 568 ; 2 East, P. C, 1022 ; 3 Greenl. Bv. § 53 ; 2 Bishop, C. L. i 12. Such a burning, where resorted to for the purpose of fraudulently securing the Insurance, is a statutory arson in some of the States. See 1 Wharton, C. L. § 843. *> Coke, 3 Inst.. 63 ; 1 Hale, 549 ; 1 Hawkins, c. 38, s. 1 ; 4 Black. Com., 224 ; 2 Bast, P. C.,.484; 3 Chitty, C. L., 1101; 1 Russell, 7.85; 1 Gabbett, 169; 3 Greenl. Bv. § 74; 1 Wharton, C. L., | 758 ; 2 Bishop, C. L. § 90 ; State v. Wilson, Coxe, 440. »' 4 Com., 223. •= Coke, 3 Inst., 63 ; 4 Black. Com., 224 ; 3 Greenl. Ev. § 75 ; R. v. Margetts, 2 Leach 931. ■» See 2 East, P. C, 485 ; 1 Russell, 786, 792. 1 Gabbett, 169 ; 3 Greenl. Bv § 76 1 Wharton, C. L. § 765, 766. « 2 Bishop, C. L. § 96 ; State v. Boon, 13 Ire., 246. "» 4 Black. Com., 226 ; Com. v. Stephenson, 8 Pick., 355 ; State v. Boon, ante. MILITAEY LAW AND PRECEDENTS. 683 the door on the inside," prying open a fastened door or window," boring and pushing back an inside bolt, cutting out a panel or making a hole in a door, wall, shutter, &c., cutting through or breaking in a pane of glass," or in simply opening a shut door by raising the latch or drawing back the bolt by turning the handle, or in raising or letting down a closed window-sash." But gaining access to an interior by means of a barrier left carelessly 1059 open is not a breaking. Thus entering by an open outer door, or by a window however slightly raised, or by an open skylight or ventilator, la held not burglary." The breaking, however, to constitute bulglary, need not be of an outer barrier. Where a person, having entered without opposition, by an outer door or window left carelessly open, proceeds, (with the requisite intent,) to break and enter an inner door, he is equally guilty of burglary as if he had forced the main door or any outer fastening of the dwelling." And since it is not essential that an outer door be broken, a servant or other inmate may com- mit burgalry by breaking and entering the room-door of the master or mistress of the house, or any member of the family, or of a guest or lodger, with a felonious intent." Constructive breaking. A breaking, (as also an entry,) may further be effected by means of fraud, false representations, stratagem, or the use of threats. As — by decoying the occupant from his house, which is thus left open or unfastened ; by practising a deceit upon him ; by procuring him to open the door by professing to hold a search-warrant or other legal process requiring service ; by asking to be admitted while imitating a familiar voice ; by pretend- ing to have business with the occupant ; by intimidating him with threats against person or property ; by raising a tumult or causing an alarm without ; or by tak- ing lodgings in the house with a view to the perpetration of a felony within it." The constructive breaking, &c., thus effected is held equivalent in law to a break- ing by direct manual force ; for, as says Ooke," " that which is done in fraudem legis, the law giveth no benefit thereof to the party ;" and, as Hawkins " observes " the law will not endure to have its justice defrauded by such evasions." 1060 Further, a breaking may be constructively effected through a con- spiracy with a servant or other inmate of the dwelling, by whom a door, &c., is opened to the assailant, or keys are furnished him." The entering. This is the accompaniment or complement of the breaking, without which the burglary is not effected ; a breaking alone does not complete " Otherwise where the locked door Is opened by means of a key left In the door on the outside ; such a case being analogous to that of a door or window left open. Rex v. Alston, 1 Swin, 433. " Prying off a portion of the weather-boarding from an out-buildiiig, parcel of the dwelling, was held a breaking, in Fisher v. State, 43 Ala., 17. « See Rex v. Perkes, 1 C. & P., 300 ; Do. v. Bird, 9 C. & P., 44 ; Do. v. Robinson, 1 Mood., 327. " 1 Wharton, C. L. § 759, 767 ; 2 Bishop, C. L. i 91. " 2 East, P. C, 485 ; 1 Russell, 786 ; 3 Greenl. Ev. S 76 ; 1 Wharton, C. L. S 769 ; 2 Bishop, C. L. § 91. So, entering by a transom left open over a door. McGrath v. State, 25 Neb., 780. But getting in by an open chimney is held a breaking, because, in the words of East, (2 P. C, 485,) "it is as much enclosed as the nature of the thing will admit of." « 1 Russell, 790 ; 3 Greenl. Ev. § 76 ; 1 Wharton, C. L. ! 762. »2 Bex V. Gray, 1 Stra., 481 ; U. S. v. Bowen, 4 Cranch C, 604 ; and authorities cited ""*aee"coke 3 Inst., 64 ; 1 Hale, 552 ; 1 Hawkins, c. 88, s. 5 ; 4 Black. Com., 226 ; 2 East, P. C, 485 ; 3 Chitty, C. L., 1106 ; 1 Russell, 792-3 ; 3 Greenl. Ev. 8 77. « 3 Inst., 64. " 1 EusseU, 794^; 3 Greenl. Ev. I 77 ; 1 Wharton, C. L. § 766. In such cases both parties are held equally guilty of burglary. 684 MILITARY LAW AND PRECEDENTS. the crime To constitute an entry, it is not essential that the party should personally enter in the ordinary sense of the word ; the least entering of any part of the body, as a hand, foot, or even finger, is sufficient to satisfy the law." Thus, where a party thrusts his hand or a part of his hand through a hole which he has made in a shutter or window and seizes or attempts to seize property ; or where, with felonious intent, he puts his arm or hand through a pane of glass which he has broken, for the purpose of unfastening or opening an inner barrier — a legal entering is held to be effected." And so it is said that there is an entering where the foot of the burglar crosses the threshold of the house." Further, to constitute an entering, it is not even essential that any portion of the body should enter the dwelling, provided some instrument, inserted for the purpose of accomplishing the felony, do actually penetrate within it." Again, an entry may be affected and a burglary completed by means of an innocent third person; as where a young chUd is compelled to pass through a small window or aperture broken from without and instructed to seize and bring out certain articles of property-,'' What has been said of the breaking of an inner door, &c., as well as of constructive breaking, applies also to the entering. 1061 The time. It is of the essence of burglary at common law that it shall be committed in the night-time, or, as it is termed In the old pleadings, noetanter. Both the breaking and the entering must be in the night, or there is no burglary ; the two, however, may be on succeeding or different nights." The ancient legal definition of night was the interval between sunset and sunrise; but from a very early date a different signification has been given to the term night-time, as employed in the description of burglary, namely that period of the twenty-four hours during which there is not enough Ught from the sun — either daylight or twilight — to enable one to perceive and distinguish with reasonable accuracy the features of the countenance of another." Or, as Blackstone " expresses it, — " if there be daylight or crepusculum enough, begun or left, to discern a man's face withal, it is no burglary." But the prevalence of moonUght, however full and bright, is held to affect In no manner the question whether or not the breaking and entering were committed in the night ; Uie law of burglary recognizing no middle space between night and day." The place. The scene of burglary at common law must be a dtoelling-hoHse. This term includes both the place of the actual residence of the occupant of the premises and all such other appurtenant buildings as are properly parcel of the main edifice. The dwelling itself must be a permanent structure intended or adapted for habitation and actually inhabited at the time — a building lived " Coke, 3 Inst., 64 ; 1 Hale, 551, 554 ; 1 Hawkins, c. 38, s. 3, 7 ; Foster, 108 ; 4 Black. Com., 226, 227 ; 2 East, P. C, 490 ; 3 Chltty, C. L., 1106, 1108 ; 1 Russell, 786, 794 ; 3 Greenl. Er. { 76, 78 ; 1 Wharton, C. L. ! 774, 775. " Gibbon's Case, Foster, 108 ; Rex v. Perkes, 1 C. & P., 300 ; Do. v. BaUey, R. & R 341 ; Do. V. Davis, Id., 499 ; Fisher v. State, 43 Ala., 17 ; Franco v. State, 42 Texas, 276. » 1 Hawkins, c. 38, s. 7 ; 4 Black. Com., 226. » 1 RusseU 795 ; 3 Greenl. Ev. § 78 ; 1 Wharton, C. I,. J 774 ; 2 Bishop, C. L. § 92. a] Hale, 555; 1 Russell, 797; 3 Greenl. Et. § 78. So "If a man so employs his wife." 7 Dane, Ab., 136. " 1 Hale, 551 ; 3 Chltty, C. L.. 1106 ; 1 RusseU, 821 ; 3 Greenl. Bv. 5 75 ■ 1 Wharton C. D. S 806. "Coke, 3 Inst, 63; 1 Hawkins, c. 38, b. 2; 2 Bast, P. C, 508; 1 Gabbett, 169; 3 Greenl. Ev. I 75 ; 1 Wharton, C. L. S 807. In view, however, of the uncertainty of the common-law rule, the period has been expressly defined by statute in Great Britain (by the 7 Wm. 4 & 1 Vic, c 86, s. 4, as from 9 o'clock p. m. to 6 a. m.,) and In some of our States. •« 4 Com., 224. K 1 HSle, 551 ; 2 Bast, P. C, 509 ; 1 Russell, 820 ; 3 Greenl. Bv. S 75 ; 2 Bishop C I i 101. ■ MILITABY LAW AND PRECEDENTS. 685 and slept in, not merely used as a place of business. It is immaterial, however, if the occupant be temporarily absent. Thus burglary, Uke arson, may be com- mitted in the summer upon a house not then occupied but customarily in- habited as a winter residence. The dwelling includes the entire edifice, 1062 embracing a portion not used for purposes of residence— as, for example, a store or shop under the same roof— provided it be occupied by the occu- pant of the portion lived in and not by a different person. There may, indeed, be disUnct dwellings under the same roof, (as in a case of a tenement house,)' as to any one of which a burglary may be committed,— an instance, however, which does not include a hotel, where the guests being more or less transient, the different apartments are not viewed as distinct dwellings but as parts of the dwelling of the landlord. As to outbuildings, these are held to be " parcel " Of the dwelling, where, being within a reasonable distance of the habitation, they are employed for domestic purposes in connection with it — are contribu- tory or ancillary to it, as branches of the domestic establishment.*' The ownership or occupancy. The place must be the dwelling of another; a man cannot commit burglary of his o^vn dwelling." But here, as in arson, it is not essential that the tenement be lived in by the owner : it is sufficient if it be occupied as a dwelling by a tenant." The intent. The Intent in burglary is to commit a felony, that Is to say a particular felony, not merely felony in general." In the great majority of cases the act Intended is the commission of larceny. That the intent has actually existed and Impelled the breaking and entering is all that is required to consti- tute the offence: whether it be executed or not is wholly Immaterial." 1063 There need not even be an attempt to commit the felony; the mere breaking and entering, with the Intent to commit It, completing the crime." TiATCCEITY — ^Definition. Larceny may be defined as — ^A taking of personal property from the possession of the owner, without his consent, with intent to appropriate the same. As will be Illustrated in proceeding, it Is a trespass 'with a distinctive criminal animus." The taking. This must be (1) an actual substantial taking of some thing by physical force : " an attempt to take, or an intention to take not carried out, will not suffice." There must be force because the taking is a trespass, but the amount or kind Is Immaterial, mere legal force being alone requisite. So the force need not be wholly manual or personal ; the instrument by which It is " On this part of the definition of burglary, see Colse, 3 Inst, 63, 64 ; 1 Hale, 554-558 ; 1 Hawkins, e. 38, s. 12, 15 ; Foster, 76 ; 4 Black. Com., 225, 226 ; 3 Chitty, C. U, 1102-4, 1112-13; 2 East, P. C, 491-507; 1 Russell, 797-819; 3 Greenl. Ev. § 79-81; 1 Wharton, C. L. I 781-791 ; also G. O. 29, Dept. of the South, 1865 ; Do. 5, Dept. of the Platte, 1870. It may he noted that neither a tent In a military camp, (compare 4 Black. Com., 626,) nor a mere warehouse at a military post, can be the subject of burglary. I" 2 East, P. C, 506 ; 1 Kussell, 820 ; 1 Wharton, C. L. § 805. » See Eex v. Collet, E. & R., 498 ; State v. Ginns, 1 N. & McC, 586 ; Houston v. State, 38 Ga., 166. «> 1 Russell, 822, 824 ; 3 Greenl. Ev. § 82 ; 2 Bishop, C. L. S ] 13. « 2 East, P. C, 484, 509 ; 1 Russell, 785, 822 ; 2 Bishop, C. L. S 110. " It is in this point that burglary, (with intent to steal,) difEers from robbery which requires that some- thing be taken." 1 Wharton, C. L. | «12. «! In People v. Shaber, 32 Cal., 36, it was held that the existence of an intent to com- mit larceny made the breaking and entering a burglary, although the building contained nothing of which a larceny could be committed — was in fact empty. M See 1 Hawkins, c. 33, ». 2 ; 4 Black. Com., 229 ; 2 East, P. C, 552, 554 ; 3 Chitty, C. L., 917 ; 1 Wharton, C. L. § 862 ; 1 Bishop, C. L. § 566 ; 2 Id. § 758. raCoke, 3 Inst., 107; 2 Bishop, C. L. § 804. « See Reg. «. Brooks, 8 C. & P., 296. 686 MILITABY LAW AND PRECEDENTS. exerted being also Immaterial." (2) It must include an actual removal of the thing from its place ; in other words there must be not only a caption but also an asportation or "carrying away." This carrying away, however, is no more than is reasonably Implied in the term taking, since it may consist in the slightest removal of the article from the place which it occupied while in the owner's possession. It is never necessary, to complete the removal in law, that the thief should succeed in getting away with the property." (3) The taking 1064 must be from the actual or constructive possession of the owner." For one to appropriate property of another which is in his own possession, because of having been committed to him as a bailee, in trust, is not larceny but em- bezzlement." (4) The taking must be invito domino, or without the owner's consent; i. e. without his consent to the taking of the article as property:" he may consent to the transfer of the possession, as to a servant or agent for safe- keeping,™ without affecting the nature of a conversion by the latter, the posses- sion being still constructively and the property wholly his own." The property. The subject of larceny must be personal property, and property of some recognized value. The articles taken, says Bishop," " must be of some value : unless they are, they are not property, and no wrong is com- mitted in taking them." The doctrine of the common law that animals ferw naturw, (including dogs and cats,) were of no value and therefore nitllms bona and not subjects of larceny, has been very considerably modified by modern statute. The common-law distinction of " grand " and " petit " larceny, based upon the value of the property stolen as being greater or not greater than twelve pence, is only material to be noticed in connection with the subject of the Punishment. The ownership. Further, to constitute larceny, the article taken must be another's. In the first place It must have some owner ; must not be property without a legal owner, as wreck, waifs, or estrays, or other property wholly abandoned." But the ownership need not be that of the absolute or 1065 general owner, since larceny may be committed by a taking from a bailee or trustee, in whom the law, pending the bailment or other trust, vests a qualified property which is sufiicient to constitute him a " special " owner as against the thief. As the thing taken must be another's, the owner certainly cannot steal his own property ; and so it is ruled that joint owners or tenants in common of personalty cannot steal the same from each other. "Reg. V. Pirth, 11 Cox, 234; Com. v. Shaw, 4 Allen, 308, (cases of abstracting gas by secretly attaching a pipe to the main supply pipe of a gas com'pany;) Eeg. u. White, 6 Cox, 213 ; 1 Wharton, C. L. § 924. So, the taking may be effected by means of an in- nocent agent, as a ynung child employed for the purpose. 1 Hale, 514 ; 2 Bast, C. P., 555. » Coke, 3 Inst., 108-; 1 Hawkins, c. 33, s. 18 ; 1 Hale, 508 ; 4 Black. Com., 231 ; 2 Bast, P. C, 555 ; 3 Chitty, C. L., 925, 943 ; 2 Russell, 5 ; 3 Greenl. Ev. § 154 ; 1 Wharton, C. L. § 923 ; 2 Bishop, C. L. § 794, 795. The removal being completed, the Immediate return of the property to^ the owner will not render the act any the less a larceny. 3 Greenl. Bv. § 156, 2 Bis'hop, C. L. § 796. " The fact that a thief restores an article after he has been detected does not wipe out the fact that he stole It." G. C. M. O. 33, Dept. of Texas, 1885. (Gen. Stanley.) " 1 Hawkins, c. 33, B. 5 ; 2 Bast, P. C, 554 ; 2 Russell, 5 ; 3 Greenl. Bv. § 155, 161. " See under " Sixtieth Article." •=2 Bast, P. C, 665; 2 Russell, 19; 2 Bishop, C. L. § 811. "> Or to a person for a mei'e temporary use not amounting to a bailment. 1 Hale, 506 ; 2 East, P. C, 555, 564 ; 2 Russell, 22. ■"■ See 2 Bast, P. C, 668 ; 2 Bishop, C. L. | 813. n 2 C. L. I 767. " As to the nature of such property at common law, see 2 Russell, 11, 96 ; 2 Wharton C. L. S 863 ; 2 Bishop, C, L. i 875, 876. MILITARY LAW AND PRECEDENTS. 687 THE INTiaTT. To constitute larceny, the taking must be accompanied with an intent to appropriate the property, (in distinction from the mere possession,) to the personal use of the taker, or at least to deprive the owner of it. This Intent is the gist of the crime; in its absence there may be trespass, but no larceny. The intent must concur with the taking, and is complete if then entertained though afterwards abandoned. Its existence may be presumed from such circumstances as the fact of the actual conversion of the property, the manner — secret or otherwise suspicious — of the taking or disposition of the articles, the possession, not satisfactorily explained, of the thing or things stolen, the resort to means to avoid arrest or trial, as desertion by a soldier, &c. On the other hand, counter-presumptions may be deduced from such evi- dence as that the article was taken under a claim of title, that it was designed to be borrowed only, or that it was found after having been lost by the owner, and converted in ignorance of the real ownership." But a retaining of found property, which evidently belongs to another, without a reasonable effort to restore it, would be evidence of an intent to convert." THE OTHER OFFENCES SPECIFIED IN THE ARTICLE. These arc — "Assault and battery with an intent to kill ; Wounding, by shooting or stab- bing, with an intent to commit murder;" and "Assault and battery 1066 with an intent to commit rape." The second of these offences " Is merely an aggravated form of the battery first mentioned. Assault and battery defined. A battery, or assault and battery, — for the two terms are substantially equivalent, every battery Including an assault, — is any unlawful violence inflicted upon a person without his or her consent. A threatening of violence, or attempt or offer to exert force against another will not suffice, since this would be no more than an assault — the assault which is only preliminary to a battery. The force employed must be not merely aimed at but must reach the person or his dress ; still, though some impact is essential, a mere touching of the body of the party assailed will satisfy the legal defini- tion." It is obvious, however, that a battery, when the expression of a homi- cidal intent or interlt to ravish, will in general be of a vehement character. Wounding by shooting or stabbing. The English cases fully explain that a wound, in the sense of the statutes making punishable batteries of this sort, must consist at least in a breaking or division of the continuity of the skin ; that, to constitute a wound, not merely the cuticle but the internal and entire skin of the body must be pierced or broken, and that a scratch is therefore not a wound : that blood should flow is not however held essential to complete a wound." The term " wounding by shooting " removes from consideration all the cases of shooting at without hitting, which, being merely cases of assault, are not in point here where the physical act must consist in a battery. Shooting is, "As illustrating the subject of the intent in larceny, see Coke, 3 Inst, 107, 108; 1 Hawkins c 33, s. 3 ; 1 Hale, 54, 506-509 ; 4 Black. Com., 31, 232 ; 2 Chltty, C. L., 926, 927 • 2 East P C, 510, 655-665, 694, 698 ; 2 Russell, 7, 9, 11, 12, 17, 18, 123 ; Wills, Circum. Bv.,' 47-50, 56, 57; 3 Greenl. Ev. S 157, 159, 169; 1 Wharton, C. L. § 883-913; 2 Bishop, C. L. § 840-851. w See the law well stated by Gen. Euger, In Q. C. M. O. 16, Dept. of California, 1892. "This attempt is in substance made punishable as a specific ofEence by the British statute of 1 Vic, c. 85, and by similar statutes in several of our States. See Wall v. State, 23 Ind., 150. " See 1 Hawkins, c. 62, s. 2 ; 1 Russell, 751 ; 3 Greenl. Bv. § 60 ; 1 Wharton, C. L. f 617 ; U. S. V. Hand, 2 Washington, 437. "Rex V Payne 4 C & P., 558; Morlarty v. Brooks, 6 Id., 686; Rex v. Sheard, 7 Id., 846; Reg. v. Smith, 8 Id., 175; Reg. v. McLoughlin, Id., 635; Rex i>. Wood, 1 Mood, 278 ; Bex v. Withers, Id., 294 ; Bex v. Becket, 1 M. & Rob., 526. 688 MILITARY LAW AND PRECEDEHTTS. properly, the discharging of a loaded gun, pistol or other fire-arm. It is not absolutely necessary that the arm should be loaded with a ball, bullet, or shot, since the discharge of a gun loaded with powder and wadding only, 1067 if fired very close to a person, may Inflict a dangerous wound." That the arm was only thus loaded, however, would ordinarily go to indicate the absence of a murderous intent. " Stabbing " may be defined to be the inflicting of an incised wound by thrusting with a pointed instrument, in contradistinction to a cutting made by a sharp-edged instrument, or an injury of any sort done with a blunt weapon.** Intent to kill. This general intent, flrst specifled in the Article, includes both an intent to commit murder, (the intent designated as that of the offence of " Wounding," &c., ) and an intent to commit manslaughter. Intent to commit murder. This is, properly, a specific intent to murder a particular person, not an intent to commit murder in general." It is essential to the proof of it that it should appear from the testimony that if a killing had resulted from the battery, the same would have been murder in law.*" It may be evidenced by such circumstances as a declaration of such intent by the accused, his violent conduct at the time of the ofCence, the use of a deadly weapon, the grave character of the injury inflicted, the existence of previous enmity between the parties, or other motive adequate to account for the act, &c. Intent to commit manslaughter. This, which is an intent comparatively rarely entertained, may be induced under circumstances of great provocation operating suddenly, or by the passion and excitement incidental to a mutual fight between the assailant and the party attacked. It can be imputed only where the killing, if death had ensued, would have been manslaughter in law. Thus it cannot be deduced where it is apparent from the evidence that the killing would have been justifiable or excusable homicide. 1068 Intent to commit rape. This must appear from the evidence to have been such as that the accompanying battery, if effectuated, would have amounted to the legal crime of rape." It must be inferable from all the circum- stances that the design of the assailant, in the battery, was to gratify his pas- sions at all events and notwithstandi-ng the opposition offered — to overpower resistance by all the force necessary to the successful accomplishment of his purpose.** If this design appears to have been once fully entertained in con- nection with the battery, the fact that the party afterwards voluntarily desisted, or changed his mind, will not affect the result of the proof.** The Intent will be demonstrated by the character and degree of the violence employed, the lan- guage, threats, demonstrations, and entire conduct. of the accused, the place, time, and other circumstances of the attempt, &c. CHABGE. For the forms of charging the several crimes made punishable by this Article, the student is referred to the Appendix. " See Rex. v. Kitcben, E. & E., 95. M See King v. Weston, 1 Leach, 247 ; Rex v. Oxford, 5 C. & P., 925 1 Eussell 723 « See Morgan v. State, 13 Sm. & M., 242 ; 1 Bishop, C. L. S 729-731 But In PeoDle V. Torres, 38 Cal., 141, it Is held that If A, Intending to murder B, shoots C by mistake and wounds him, he Is guilty of assault with intent to murdei C «Rex V. Mltton, 1 East, 411; Rex «. Payne, 4 C. & P., 558; State v. Neal 37 Maine 468; State ». Williams, 3 Foster, 321; State v. Eeed, 40 Vt., 603; McCov v State i Bng., 451; Hopkinson J. People, 18 Ills., 265; Dalns v. Stat; 2 Hump, T39 ;" State « Anderson, 2 Over., 8 ; Kunkle v. State, 32 Ind., 220 ; Jackson v. State 51 Ga 402 « Charles v. State, 6 Eng., 390 ; 1 Wharton. C. L. J 181 ; 1 Bishop, C h i'lll « 1 Eussell, 692 ; 1 Bishop, C. L. § 733. » P. ^-. li. 8 See Chapter XX. 440593 O - 42 - 44 690 MILITAKY LAW AND PEECEDENTS. priate to the case, such as dismissal, discharge, reduction, forfeiture, sus- pension, &c." Where indeed the civil statute, in awarding a particular punishment, fixes a maximum and a minimum for the same, as where it assigns to the offender confinement in a penitentiary for a term not less than a stated number of months or greater than a stated number of years, the Article will be satisfied by a sentencing of the accused to the m,inimum term thus established, while of course even the itmscimum. may legally be exceeded. But where — as is some- times done — the statute merely establishes a maximum; as where it enacts that the offender shall be punished by imprisonment for a term not to exceed a certain number of years, or by a fine not to exceed in amount a certain sum named, then, as any degree of tJie punishment within such limit Is legal, the court-martial is without any restriction whatever, under the Article, as to the term or amount which It shall impose by its sentence. " For the like offence." Lilje means same or similar, and in general the " like " offence in the local statute will readily be distinguished. Where the statute establishes two or more degrees of an offence, with different punish- ments for the several degrees, it will be suflBicient for the court-martial to impose the punishment belonging to the degree to which the offence found by it is " like " or corresponds. Where the common-law offence, as charged and found, can not readily be assimilated to either of the degrees of the offence as defined in the statute, it will be safest for the court to impose a punishmest not less than that provided for the first or highest degree. " State, Territory, or District." Of these terms, " District " evidently re- fers to the District of Columbia. MEASURE OF THE PUNISHMENT IN GENERAL. In adjusting the measure of the punishment under the Article, the court-martial, while 1071 strictly observing the specific injunction last noticed, and considering— generally— the esHmate of the criminality of the offence as indicated by the penalty or scale of penalties assigned to it by the laws of the State, &c., may well also consult, as a guide to assist its judgment, the United States statute, where any exists making punishable the particular offence. Thus, of the crimes enumerated In the Article, murder, arson, and rape are made punishable with death, and manslaughter, mayhem, robbery and larceny, by fine and imprison- ment, when committed at sea or in places within the,excluslve jurisdiction of the United States courts." XXIV. THE FIFTY-NINTH ABTIG^B. [Surrender to the Civil Authorities of Military Persons O^axgeA with Civil Offences.] "Abt. 59 When any offloer or soldier is accused of a capital cnme «^ "^ ««J' 01renceaga^nstthe person or property of any citizen of an^of t^vled «*«*«*' wh^n ^spun^snaue by tUe la^s of tUe lana, the commlZngofflcer and "'« '^Ex parte Maaon, 105 U. S., 696. " See Sees. 5339, 5343, 5345, 5348, 5356 5385 R4kr Indeed not always the common-law offence anrt'thi * ^" ^^' "^^ "^"^^ described Is referred to for definitions. ' statutes are not In general to be MILITARY LAW AND PRECEDENTS. 691 to deliver' him over to the civil magistrate, and to aid the officers of justice in apprehending and securing him, in order to hrimg 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 he dismissed from the service." PRINCIPLE AND PTTBPOSE OP THE ABTICLE. This provision, which, derived originally from a corresponding British Article, has undergone but a single material change, presently to be noticed, since its first appearance in our code of 1776, proceeds upon certain general principles well defined in our law. Of these, the fundamental principle of the distinctness and independence of the two sovereignties of the United States and of the separate States, as 1072 declared by the Supreme Court in Ableman v. Booth,™ has been applied to the relations between the authorities of the States and the U. S. military authorities in the more recent adjudication of the same court in Tarble's Case," and ^ecially also in the leading case in Iowa of Ex parte McRoberts." But, notwithstanding this independence of the military power within its peculiar field, the further principle is uniformly asserted of the subordination, in time of peace and on common ground, of the military authority to the civil, and of the consequent amenability of military persons, in their civil capacity, to the civil jurisdiction, for breaches of the criminal law of the land." It is in recognition of these principles, and to facilitate the exercise 1073— of such jurisdiction, that this Article has been enacted. Though in form an injunction upon commanding officers, &c., its general purpose, as expressed by the court in the case of McRoberts," is " to aid the civil authori- ties in the administration of justice, and to place it out of the power of a criminal to escape the just civil penalties of his acts by entering the military service, or claiming its protection while in It." At the same time, by prescribing a condition to be complied with on the part of civil officials and persons, and investing military commanders with a reasonable discretion in accepting their applications, it protects the military from false arrest and arbitrary prosecution. «' 21 Howard, 516. In this case Chief Justice Taney observes ; " The powers of the General Government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties acting separately and independently of each other, within their respective spheres. And the sphere of action appropriated to the TJnlted States Is as far beyond the reach of the Judicial process Issued by a State Judge or a State court as If the line of division was traced by land- marks and monuments visible to the eye." •* 13 Wallace, 397. ™ 16 Iowa, 600. » Dow V. Johnson, 100 U. S., 169 ; Bx parte McEoberts, 16 Iowa, 601 ; Rawle on the Const., 161 ; Halleck, Int. Law, 393 ; 6 Opins. At. Gen., 415, 417, 451 ; Tytler, 153 ; 1 McArthur, 38 ; Digest, 50. The Journals of Congress during the Kevolutlon contain sundry assertions of this principle. Thus in one case, (2 Jour., 572,) it was Eesolved— " That all military officers and soldiers In the service of the United States, are, and of right ought to be, amen- able to the laws of the State in which they reside In common with other citizens." In another case (3 Jour., 77,) it Is recited that — " Whereas complaint has been made to Congress that brigadier count Pulaski has resisted the civil authority of this State," (Pennsylvania,) "Resolved that the board of war do require his personal attendance at the war office- * • * It being the fixed determination of Congress to discourage and suppress every opposition to civil authority by any officer in their service." And further (Id p 79.) the board are " directed to inform brigadier Pulaski that it is the n-ntx of every military officer in the service of these States to yield obedience to any nroeess Issuing from any court, Judge, or magistrate, within any of the United States." ?ra third Instance, earlier in date, (2 Jour., 68,) It was Resolved by Congress that a reelmental adjutant, charged with the murder of a citizen, "be delivered to the civil authority of Pennsylvania that he may receive his trial according to law. «16 Iowa, 603. And see Samuel, 489. 692 MZLITAEY LAW AND PRECEDENTS. OCCASION OF ITS OPERATION — CONSTBUCTION OF TERMS. The occasion upon which the duty specified in the Article is devolved upon the officers indicated, is that of the application, to the commanding officer of a post, regiment, &c., for the surrender to the civil authorities of an officer or soldier present with the command, who is accused of a criminal ofCence. The circumstances under which the Article is intaided to be operative will appear from a reference to the terms of the provision. " Any officer or soldier." This designation clearly refers to officers and soldiers under present military command and control." Military persons not within such control, as persons on furlough or leave of absence, or deserters, could scarcely have been contemplated. The Article not applying to such parties, it would follow that the civil authorities would be entitled to arrest and bring to justice a person of such class in the same manner as any civilian, i. e. without application to the military authorities. This was indeed the precise point ruled in Ex parte McRoberts already cited — a case of a soldier absent on furlough — in which it is said that such a soldier " is not in the custody or control of his commanding officer, and may therefore be arrested as any other person, and no conflict can arise." The fact that his leave of absence may be recalled " cannot. It is remarked by the court, affect his status while it continues in force : so long as it is not recalled, he remains with- 1074 out the military jurisdiction." " In the further case of Private Rosen- back,"" who, having been arrested, while on furlough, by the civil authori- ties of Wisconsin, on a charge of murder, in 1864, petitioned the Department Commander to be taken out of the hands of said authorities and tried by court- martial. It was determined by Gen. Pope as follows : — " The petitioner, at the time the crime is charged to have been committed, was on furlough and absent from his regiment in the State in which he enlisted, and was at the time acting in no sen.se In his military capacity. He was substantially in the same posi- tion before the law with any person not in the military service, and equally responsible to the civil authorities for any offence against the laws of the State of Wisconsin. His case Is not one which would justify the interposition of the military authorities, and his petition is therefore refused." So, the term " any officer or solder " cannot properly be regarded as including a military person who commits a breach of the peace or other civil offence outside of a military post, as in an adjoining town, and has not returned within the post when apprehended. The Article is clearly not intended to restrict the power of arrest on the spot, of such a person, by the civil authorities of the State or municipality, and he may legally be so arrested then and there, without awaiting his return to the post, and without a reference to the commanding officer. "Accused." This word Is construed by Samuel" as meaning regularly charged on oath before a civil magistrate, as best evidenced by the warrant of the latter or some other process issued by him. This construction is sup- ported by the fact that the Article provides in terms for the delivery of the accused person "to the civil magistrate" and for his apprehension by "the officers of justice," as If It were contemplated that a judge or justice should Issue a writ or summons requiring, the party to be brought before him, and a " See G. O. 87, Dept. of the Mo., 1863. »« That is to say, lor the purposes of this Article. As to the jurudiction of a court- martial over an offence committed by an ofBcer or soldier on leave or lurloush see Chapter VIII. ' »" G. O. 20, Dept. of the Northwest, 1864. •Page 491, MILITABT lAW AND PRECEDENTS. 693 Sheriff or constable should be present to serve it. Such indeed would be the regular course of procepding, and one advisable in general to be pursued before a surrender is applied lor under this Article. Nothing more, certainly, can be required ; an iudictment, for instance, can never be necessary. The pro- 1075 ceedlng indicated, however, is not essential; the term " accused " is not necessarily to be construed In a technical sense; and a specific charge of an offence contemplated by the Article, formally made, and by a proper per- son, in the " applicatwn," may be accepted as sufficient in the absence of legal process.' "A capital crime." These words are considered to be qualified, equally with those which foUow, ("any offence," &c.,) by the words "punishable by the laws of the land." The capital crime here intended is thus properly a crime made punishable with death" by the laws of the State, &c., in which it was committed. " Any offence against the person or property of any citizen of any of the United States." Here are evidently mainly intended crimes, other than capital, involving violence against the person, as manslaughter, mayhem, rape, robbery, and assault and battery, together with such as affect a person in his property, as arson, burglary, larceny, forgery, embezzlement and malicious mis- chief. Offences against society or the public, and offences against government, (except where immediately affecting individual persons or their property,) could scarcely have been contemplated. The term "citizen" as used in this clause may be deemed to apply to a military person, in his civil capacity, equally as to a civilian. Thus a resident retired officer or soldier would be Included. Such a person, however, would rarely have recourse to proceedings under this Article where the offence com- mitted against him was one cognizable and adequately punishable at military law.* The description " any of the United States " may also be taken in a general sense, and be deemed to apply, in spirit at least, to Territories as well as 1076 States, The Article is not, of course, intended to apply to cases of offences against the laws of the United States itself. "Punishable by the laws of the land." The term " laws of the land " has been defined to mean " general public laws, binding on all members of the com- munity under similar circumstances," in contradistinction to " partial or private laws affecting the rights of individuals." ' The term as here employed is thus believed to include, not only such acts of the law-making power as State statutes, but also authorized municipal ordinances and by-laws." Thus it would be the "In Jeffers' case, (2 Oplns., 15,) Atty. <3en. Wirt does not intimate tliat the Issning of a warrant is necessary. ' As to the definition of the term " capital " as employed In the Articles of war, see Chapter XVIII — " Testimony by Deposition." * " In ordinary cases, the party Injured, if he be himself of the army, either as ofllcer or soldier, will consider that the rights and the interests of the service are injured in the injury done to himself, and will prefer to have the guilty party dealt with by military law, and will not seek to have the civil magistrate Interpose." 6 Oplns. At. Gen., 426. • Kalloch «. Superior Court, 56 Cal., 229 ; Va'nzant v. Waddell, 2 Terger, 260. •It has been recently, (June, 1895,) so held by Atty. Gen. Olney, in concurrence with an opinion of the Acting Judge Advocate General. In St. Johnsbury v. Thompson, 59 Vt., 300 cited by the Atty. Gen., It is said — " The by-laws of a municipal corporation, au- thorized by its charter, have the same effect within Its limits as a special law of the legislature." Contra— the ruling of the court In Ex parte Bright, 1 Utali, 145, is believed to be un- sound on this as upon some other points of the case. 694 MILITAKY LAW AND PRECEDENTS. duty of the officers referred to in the Article to surrender, &c., an offender, com- morant at the post, &c., whose offence was a violation of a city ordinance, equally as where he had committed an offence made punishable by a statute of the State. In the majority of cases, however, offences against such ordinances would be committed by soldiers off duty in the town, and their arrest would be made (and properly) on the spot or presently, {i. e. before their return to the post,) so that the occasion for an application to the post commander would not arise.' The fact that the crime against the State may also- constitute or involve a military offence punishable by the military law cannot affect the right of the citizen, (or of the public,) to initiate proceedings under the Article.' The right, it may be added, continues until the prosecution for the offence becomes barred by the civil statute of limitations and the offence Is thus no longer " punishable." That the offence was committed by the accused before he entered the military service cannot impair the exercise of the right, provided the civil limitation has not taken effect.' 1077 Of course, where the crime or offence of the officer or soldier .was com- mitted within a military reservation or other locality, over which, by the cession of its jurisdiction by the State or otherwise, exclusive jurisdiction is vested in the United States, the State, (except in so far as it may have reserved authority to execute process,) is without jurisdiction, and the Article does not apply, (or only to the extent of the authority reserved.) In the event of a total absence of jurisdiction on the part of the State, the military authorities — if it be deemed expedient that the accused be tried by a civil tribunal — will properly refer to and concur with the U. S. District Attorney and Marshal with a view to a trial before the proper U. S. court. FORM OP PROCEEDING — The Application. The Article requires that, to obtain the surrender of the accused by the military authorities, there shall be an " application 6mIv made by or in hehalf of the party injured." A sufficient form of application will be a written communication or statement addressed to the commanding officer and signed by the party or his authorized representative (or, in the case of his death by homicide, by the public prosecutor or other suitable official, or some citizen), setting forth that a specific offence named, of the character indicated in the Article,"" has been committed, or is charged and believed to have been committed, by a certain designated officer or soldier of the command, and that his delivery to the civil authorities Is required with a view to his trial, or in terms to that effect. Such application may be presented by the person signing, who will properly be accompanied by an official provided with a warrant authorizing him to arrest the prisoner, or may be presented by such official unaccompanied. Or the application may consist simply in the formal warrant, duly Issued on the oath or in behalf of the injured party, and pre- sented for service by a proper officer. Where the application is not personal, the commander should satisfy himself that it is made by the authority 'See ante, p. 692. '6 Opins. At. Gen., 415, 416. • G. O. 29, Dept. of the N. West, 1864. •» " It it not enough to tell him " (the commander) " that some offence has been com- mitted ; he must know what the specific offence is in order that he may see whether it is an offence ' punishable by the known laws of the land.' The application, aecordine to the Article, must be duly made to him; and in my opinion, no application is duly made which does not state the specific offence so as to enable the commander to see distincti; that the case contemplated by the Article has arisen." Atty. Gen. Wirt 2 Oplns 1*-15 And see Samuel, 492; Digest, 51. ' "»•"«•• l4-lo. MILITARY LAW AND PEECEDENTS. 695 1078 or with the acquiescence of the injured party, (if living,) and not as the gratuitous motion of a mere stranger."^ Whether or not, indeed, the application be " duly made " is a matter wholly within the discretion of the military commander to determine. If he thinks proper,— as where the original writing or warrant is not sufficiently explicit, or he is not assured that it is presented in good faith,"— he may require the application to be made more specific," or to be sworn to, or to be supported by the affidavits or statements of other and credible persons. On the other hand, under circumstances justifying it, as in a time of emergency, or where the facts are notorious or fully within his own knowledge, he may dispense with a formal application or even accept an oral one. ILLEGALITY OF ABBEST OB STTBBENDEB WITHOUT DUE APPLI- CATION HADE. The application, says. At. Gen. Gushing," " is the necessary antecedent condition of the right of the civil authorities to act." So, in the case of McRoberts,*" it is held by the court that. In view of the enactment of Art. 59, " it becomes the duty of the civil officer to stop at the boundary line between the two jurisdictions, and there demand of the military officers the delivery of the accused. * * * The soldier, while he continues in the 1079 actual military service, cannot be arrested on civil process except in the manner provided by the Article." It follows that when an arrest, of au officer or soldier, at a military post, dc, is made without a previous demand, or after a demand not duly made in accordance with the Article and therefore not acceded to, the law is violated, the act is a trespass, and it is the right as well as, in gene^al, the duty of the commander, (who owes it to his command to protect them from illegal seizure," and to the United States to maintain its just authority,) to retake the prisoner from the custody of the civil officials and re- mand him to his former status. In so doing the commander is entitled and properly required to employ such military force as may be suitable and suffi- cient to effect such purpose in an orderly manner ; but, before resorting to this means, he will properly call upon the civil authorities to return the prisoner, allowing them a reasonable time for the purpose. And if he has any reason to question the policy of summary action, he will first seek instructions from the Secretary of War. " It Is observed by Attorney General Gushing that a civil magistrate has no authority as such to demand the accused ; the law giving him no " right of voluntary and officious Interference In these matters;" he cannot, therefore, it is added, make the requisition, " unless moved so to do by the party Injured." (See State v. Pollock, A. & N. Jour., Sept. 15, 1877, where a sheriff attempted to make the arrest " at his own Instigation and motion.") In a case of homicide^ however, where there can be no personal applica- tion, " the entire society," continued Mr. Cushlng in the same opinion, " is the party injured ;'' and " the public prosecutor or grand Jury," as taking the place of the party and representing the public, may properly make the demand : or it may be made by any private person, since, In such a case, " it is the right of any and of every citizen to move the courts of the country to apply the laws of the land to the criminal. 6 Oplns. At. Gen., 421-2. And see Hough, 224. "See 6 Oplns., 423, 428. " See 2 Oplns. At. Gen., 15. " 6 Oplns., 421. M 16 Iowa, 603, 604. But the fact that the arrest Is actually made without the proper application cannot affect the jurisdiction of the State court in the case. In re O'Connor, 37 Wise, 379. le " The commanding officer owes a duty to the men under his command — he owes them the duty of protection, so long as they continue In the faithful discharge of their duty. This duty is first in point of time, and highest In point of obllgaton. This Article gives him no authority to withdraw that protection and deliver over his men to others, except In the case which it describes." 2 Oplns. At. Gen., 14. 696 MILITABY LAW AND PEECEDBNTS. It may be added that while the civil authorities cannot legally arrest, nor the military authorities properly surrender, an accused officer or soldier except as provided in the Axticle, so, such accused person cannot in general properly be allowed voluntarily to surrender himself. However willing and ready he may be to yield to the course of civil justice, it is not for him to decide whether it is proper for him to do so, but for the commander alone. He should therefore await due proceedings under the Article and the orders of his commander thereon. If indeed the accused party does, of his own motion, actually appear before the magistrate and submit himself to the civil authority, his act gives to the latter the legal custody of his person, and his commitment, in default of bail, will be a legal and regular proceeding." DUTY AND LIABILITY OE OFFICEBS UNDER THE ARTICLE. The duty imposed by the Article upon commanding officers and the 1080 officers under them," is required of them in all cases except such as may arise in time of war. This exception, first introduced into the Article in 1874, was perhaps suggested by the fact that by the provision of the Act of March 3, 1863, now incorporated in the code as Art. 58, a special jurisdiction, concurrent with that of the courts of the States, &c., had been conferred upon military courts. i7i time of war, dc, for the trial of the principal crimes made punishable by the general criminal law. The requirement that officers shall use their " utmost endeavors," &c., is of course to be understood in a reasonable sense and with reference to the cir- cumstances of the particular case." Thus if the accused person is not within military control because absent as a deserter or on furlough, or is not actually present at the post or in the command at the time of the application, nothing more can in general be required of the commander, &c., and to furnish to the civil authority such information in regard to his present whereabouts and the prospect of his return as may be possessed. If the accused, having been once duly delivered to the civil official, escapes and returns to his military station, he is not in general to be brought to trial by court-martial as for a military offence, but should properly be remanded to the civil authorities, or held subject to a renewed application by them for his surrender." As the commander, &c., is required by the Article "to aid the officers of justice " not only in " apprehending " the accused, but also in " securing him," he should properly furnish such officers, when they are not supplied with an adequate police force, with a guard of soldiers sufficient for the purpose of safely conducting the prisoner to his destination. 1081 PBIOR ASSUMPTION OP MILITARY JURISDICTION AS AT- fECTING THE INTERPOSITION OP THE CIVIL AUTHORITIES. Where a civil and a military court have concurrent jurisdiction of an offence committed by a military person, the court which is the first to take cognizance of " See 6 Oplus. At. Gen., 422. "That the duty is mainly devolved upon the commanders, the province of Inferior officers principally being to carry out their orders — see Samuel 490-493- Houeh 221- 224; Clode, 98, O'Brien, 119-120; 2 Opins. At. Gen., 14. It is remarked' by Mr ' Wirt in the opinion last cited, that the Article is " entirely Inapplicable to the President " and that no demand can be made upon him under It. And see 1 Opins 244 » See Samuel, 493; O'Brien, 119-120. Hough, (p. 224,) in construing the term utmost endeavors, says :— " Therefore concealing or harboring the accused, or giving him the means of escape, or aiding or in any manner assisting therein, or conniving at or even advismg such escape, would be criminal acts, and • • • would amount to the not using the best endeavors." »G. O. 7, Dept. of the South, 1871. MILITARY LAW AND PRECEDENTS. 697 the same Is entitled to proceed ; =• and although the precedence of the civil juris- diction is favored lu the law, yet if this jurisdiction does not assert itself until the other has been duly assumed in the case, its exercise may properly be post- poned until the other has been exhausted. Upon the commission of such an offence, of a serious character, the military authorities will in general properly wait a reasonable time for the civil authorities to take action ; " but if, before the latter have initiated proceedings under the Article, the party is duly brought to trial by court-martial for the military offence involved in his act, the com- mander may, and ordinarily will, properly decline to accede to an application for his surrender to the civil jurisdiction until at least the military trial has been completed and the judgment of the court has been finally acted upon.^ XXV. THE SIXTIETH ARTICLE. [Frauds, Embezzlement, &c.] "Art. 60. Any person in the military service of the United states who makes or causes to he made any claim against the United States, or amy officer thereof, knowing such claim to be false or fraudulent; or Who presents or cattses to he 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, knovnng such claim to be false or fraudulent; or Who enters into any agreement or conspiracy to defraud the United States by obtaining, or aiding others to obtain, the allowance or payment of any false or fraudulent claims; or 1082 Who, for the purpose of obtaining, or aiding others to obtain, the ap- proval, allowance, or payment of any claim against the United States or against any officer thereof, makes or uses, or procures or advises the making or use of, any icriting, or other paper; knowing the same to contain any false or fraudulent statement; or Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any cladm against the United States or any officer thereof, makes, or procures or advises the making of, any oath to any fact or to any writing or other paper, knowing such oath to be false; or Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, forges or counterfeits, or procures or advises the forging or counter- feiting Of, any signature upon any writing or other paper, or uses, or procures or advises the use of, any such signature, knowing the same to be forged or counterfeited; or Who, having charge, possession, custody or control of any money or other prop- erty of the United States, furnished or intended for the military service thereof, knomngly 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 cer- tificate or receipt; or 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 knowl- edge of the truth of the statements therein contained, and with intent to defraud the United States; or »6 Opins. At. Gen., 414. MJt Is Indicated In Ex parte Mason, 105 TJ. S., 699, that where the civil authorities do not presently apply for the accused under the Article, it Is the duty of the military authorities to proceed to exercise their Jurisdiction. a See remarks of Atty. Gen. Gushing in Stelner's Case, 6 Opins., 423, and in Howe's Case, Id., 513-14. 698 MILITAEY LAW AND PEECEDENTS. Wlw steals, embezzles, knowingly, and willfully misappropriates, applies to his oion use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, or other property of the United States, furnished or intended for the military service thereof; or Who knowingly purchases, or receives in pledge for any obligation or indebted- ness, from any soldier, officer, or other person who is a part of or employed in said forces or service, any ordnance, arms, equipments, ammunition, clothing, subsistence stores, or other property of the United States, such soldier, officer, or other person not having lawful right to sell or pledge the same, — 1083 Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court-martial may adjudge. And if any person, being guilty of any of the offences aforesaid, while in the military service of the United States, receives his discharge, or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court- martial, in the same manner and to the same extent as if he had not received such discharge nor been dismissed." THE OBIQINAIi ACT. This statute, which, as an Article of war, appears for the first time in the revised code o( 1S74, consists of sees. 1 and 2 of the Act of March 2, 1863, c. 67, entitled "An Act to prevent and punish- frauds upon the Government of the United States." In transferring the statute tp the Revised Statutes, the several provisions have been condensed and simplified, but no material change has been made. The legislation of 1863 was intended to bring to punishment a numerous class of specific frauds which the experience of the war had already shown to be likely to be committed during such a period in connection mainly with claims upon the Treasury, ofiicial accounts, and the disposition and custody of the public moneys and other property of the United States. Enacted mainly with a view to the circum.«tances of the existing state of war, the provisions of the Act were nevertheless not limited In terms to any defined period, and thus have survived to the present time. The Act, which was of a comprehensive character, provided not only for the trial of military and naval persons charged with the offences specified in the first section, but also for the prosecution, both by qui tam action and criminal proceedings, of civilians similarly accused. The adjudications under the Act, In cases of civilians, in the U. S. courts, are especially pertinent and valuable, and will be cited. The provisions of the Act, as set forth in the present Article, are also embraced in the Fourteenth of the Articles for the Navy, and, as constituting a part of the general penal law applicable to civil offenders, are to be found contained in Sees. 3490-3494, 5438 and 5439 of the Revised Statutes. The separate paragraphs of the Article will be briefly considered ; the ninth only, as the most comprehensive and important, being dwelt upon more at length. THE FIRST SIX PABAGRAPHS. These relate to fraudulent 1084 claims against the United States," including the making, presenting,"^ &c., of any such claims; the entering into corrupt agreements and combina- »In the description of these claims as claims "against the Tlnited States or any ofpcer thereof," the concluding words are without significance and surplusage. A claim against an official, (as such.) or department, of the government is necessarily a claim against the United States. The statute does not contemplate personal claims upon officers. "That making and presenting are distinct offences under this statute, so that the making of a false claim may be completed in a distant State while the presenting of the same may be committed at Washington, D. C.,— see Ea: parte ShaflEenburg 4 Dillon 271 MILITAEY LAW AND PRECEDENTS. 699 tlons to defraud the government by the prosecution of such claims ; and the making, using, &c., of false writings, the forging, &c., of signatures, and the taking, &c., of false oaths, for the purpose of obtaining the payment or ap- proval of such claims/" It will be observed that it is not necessary to con- stitute an offence under any of these paragraphs that the fraudulent claim should have actually been induced to be paid or even allowed on the part of the United States. PARAGRAPHS 1, 2 AND 4. — Fraudulent claims for officers' pay. It is under these paragraphs that charges for attempts by officers to secure double or repeated payments — the offence familiarly known as the duplicating of pay rolls — have been frequently laid." Thus, where an officer who has sold his claim for pay for a certain 1085 month, and assigned the pay rolls or accounts, which are the evidence of the right to receive the same, to a banker, creditor, or other party, sub- sequently himself presents, (or causes to be presented for him, by an attorney, a military subordinate or other person,) to the paymaster, a personal claim for the same pay upon a new set of accounts, he is clearly chargeable with the ofCence set forth in the 1st and 2d paragraphs, since the claim fi us made and presented must, as well as the second set of accounts, necessarily be false and fraudulent."' Where indeed the original transfer is not absolute or uncondi- tional, but by way of collateral security only, and is upon the condition that the assignee shall not present the claim without the express authority of the officer, but the same is improperly treated by the assignee as his absolute property, and, without the knowledge of the officer, is presented by and paid to the assignee ; or where the officer, for the accounts first transferred, has substi- tuted, or made arrangements to substitute, other security, and has supposed that these accounts have accordingly been cancelled ; " these, or other facts, indicating that the personal presentation was made in good faith, may consti- tute a defence to a charge against the officer for presenting, or causing to be presented, the second set of accounts. But, especially in view of the fact that the Army Regulations, par. 1440, forbid the assignment of a pay account be- fore due in any case,"" all such defences should be entertained with great cau- tion by military courts, and unless it clearly appear that the accused, when he presented, or caused to be presented, the claim, had taken such precaution "' The offence being specifle, the general form of charge sometimes adopted of — " Fraud, in violation of the 60th Art. of war," is loose and faulty. " See instances in G. C. M. O. 219 of 1865 ; Do. 56 of 1867 ; Do. 61, 72, of 1869 ; Do. 11, 22, of 1870; Do. 42, 57, of 1874; Do. 25, 50, 104, of 1875; Do. 37 of 1876; Do. 40 of 1878 ; Do. 32, 45, 62, 63, of 1883 ; Do. 8, 9, of 1884 ; Do. 20, 23, of 1885 ; Do. 88 of 1886 ; Do. 52 of 1887 ; Do. 54 of 1888 ; Do. 20 of 1890 ; Do. 28 of 1892 ; Do. 8, 56, of 1893. And see also Digest, 55. The opinion has already been expressed that this offence is not properly laid under Art. 13, which is viewed as referring to the signing of a certificate for the pay not of the signer, but of some other officer, &c. The offence, however, is sometimes, and properly as it involves a dishonor, (see G. C. M. O. 28 of 1872 ; Do. 59 of 1875,) charged as a violation of Art. 61 ; also, less fre- quently, as conduct prejudicial to discipline under Art. 62. (See G. C. M. O. 54 of 1888.) Where a pay account is transferred before the pay is due, the officer is chargeable under the last named Article for a violation of par. 1440 of the Army Regula- tions. (See G. C. M. O. 28 of 1872.) " So it has been held that a civil person was equally indictable under the statute for presenting a false claim in behalf of another party as for presenting it in his own behalf. U. S. v. Hull, 4 McCreary, 272, 14 Fed., 324. »» See G. C. M. 0. 28 of 1872. " In G. O. 35 of 1829, it is said of this regulation, (referred to as an order of June, 1827 ) that its effect was " to remove all pretences of excuse and defence on the ground of mistake and accident." 700 MILITAKY LAW AND PRECEDENTS. that he knew, or was fully and reasonably assured, that no other presentation had been or would be made, the defence should not be accepted as suflBcient." It may be noted that it is no defence under this Article, (or under the 61st,) that either the first or a subsequent assignment of his pay by the officer 1086 was made before the pay became due and payable. That such assign- ment is forbidden by the Regulations, (par. 1440,) and would not be enforced by a civil court," does not affect the criminal character of the act at military law. Again, an officer who, having once drawn or sold his pay for a certain month or months, signs and transfers further pay rolls for the same, is chargeable with the offence specified in the 4th paragraph, since the rolls contain a " statement " known to him to be false and fraudulent, vie. the statement, in the printed certificate, that the amount charged in the account is " correct and just " and is " rightly due " him." Other included claims. Under these three Paragraphs (1, 2 and 4) also are properly laid Charges based upon the knowingly making, &c., of a variety of other fraudulent claims against the United States. Thus the General Orders contain cases of charges under this Article for the presenting by officers of false claims for disbursements to government employees," for disbursements in the secret service," for horses lost In battle," for recruiting expenses," for trans- portation of public stores," for pay of soldiers on falsified muster rolls " 1887 for fuel for a detachment,* &c. ; also claims by soldiers for pay upon falsi- fied discharges, final statements," or clothing accounts ; " claims for the reward for the arrest of deserters who have not in fact been apprehended," Ac.** » See remarks of Secretary of War in G. C. M. O. 45 of 1883 ; also In Do. 88 of 1886 ; Do. 56 of 1893. " See Swenk v. Wyckoff, 46 M. J. Eg., 560 ; also U. S. «. Phillips, 23 Wash. Law Rep., 198. " See a late Instance of this offence in G. C. M. O. 52 of 1877 ; also, in Do. 25 of 1875, a case of a false statement on a pay account that the officer had served ten years. [The making of the false certificate is often charged under Art. 61. See G. C. M. O. 20 of 1890.] And see Instances of false statements of certificates, In connection with claims other than for pay, In G. O. 18 of 1864 ; G. C. M. O. 152, 614, of 1865 ; Do. 47 of 1870. [The last three are cases of false certificates furnished contractors in support of fraudulent claims made by them to be paid under contracts not duly executed.] " See G. C. M. O. 303, 605, of 1865 ; Do. 2 of 1868. ■'G. O. 74 of 1864. ■• G. C. M. O. 406 of 1865. "G. O. 67 of 1864; G. C. M. O. 131, 241, of 1864.; Do. 293 of 1865; Do. 208 of 1866. And see In this connection, cases of Langenbien, qontractor (G. C. M. 0. 181 of 1864), tried by court-martial for presenting fraudulent claims for subsistence and lodg- ing furnished to recruits; and Johnson, Government agent (G. C. M. O. 191 of 1864), tried by military commission for presenting similar claims for the expenses of the care of sick and wounded soldiers and prisoners at New York. » See 6. C. M. O. 35 of 1872. " G. C. M. O. 53 of 1870. And see case In Do. 395 of 1865. "G. C. M. O. 20 of 1868. " G. C. M. O. 639, 644, of 1865 ; Do. 39, 101, of 1866 ; G. O. 46, Dept of the East 1869 ; G. C. M. O. 55, Id., 1871 ; Do. 45, 46, Id., 1893 ; G. O. 16, Middle Dept 1865 " G. C. M. O. 59 of 1890 ; Do. 71 of 1893. " G. C. M. O. 45, 46, Dept. of the East, 1872. " A further case is that of the presenting of a fraudulent claim for the services of a telegrapher at a signal station. G. C. M. O. 61 of 1880. So. of a printer. G. C. M. O. 1 of 1883. A form of fraudulent claim, where the fraud consists in an altered and false statement, Is that made by reporting on a clothing account a sum as due which is greater than the actual amount. G. C. M. O. 26 of 1883. And see a similar case In Do. 48 of 1879. This part of the statute is not restricted to the presenting of claims by a party In his own behalf, but extends to claims presented In behalf of another nerson n s . null, 4 McCrary, 274. ■ ". ». MILITAKY LAW AND PRKCEDENTS. 701 The statement or paper containing the false or fraudulent claim need not in any case be set out in full ; it should, however, be described with such particu- larity as sufficiently to inform the accused of the specific ofEence with which he is charged." The claim should clearly appear to have been a claim against the United States, and the presentation to have been to a person in the U. S. service, whether or not an officer of the army." Guilty knowledge the gravamen of the ofEence. It is not the object or purpose of the party in transaction, but his knotoledge that the claim is false or fraudulent" which is made by the Article the gist of the offence. If he knew, or the circumstances of the case were such as properly to charge him with the knowledge," that the claim was a hctitious or dishonest one when made or presented, &c., he is amenable to trial under this part of the Article ; 1088 otherwise not." Where an officer presented his pay account and received his pay thereon without having been notified of a sentence of court-martial by which he was dismissed and his pay forfeited, he was held by the Judge Ad- vocate General not to be chargeable with the offence of knowingly making a false or fraudulent claim under this Article." So the mere filling out and sign- ing of a pay account before the pay has become due does not constitute such an offence. An offifcer, for example, when required to absent himself from his post, may properly Sign and leave with his family a form or forms of account for certain pay, before the same becomes payable, as a provision for their support during his absence : here, the design being that the account shall be presented only when it falls due, a knowingly making of a false claim cannot be ascribed." PABAGBAPH 3. The offence here described is the entering into an agree- ment or conspiracy with a view to defraud the United States, by inducing the payment by it of a false or fraudulent claim. It will consist in such acts as the signing or approving of untrue certificates, vouchers, accounts, &c. ; the procuring of such writings, by means of misrepresentation or deceit, to be approved by superior officers; the procuring false receipts, vouchers or state- ments to be signed by third parties, &c., — ^pursuant to a collusion with one or more persons, and with fraudulent Intent as above. A familiar illustration would be a conspiracy, between an officer (or soldier) on the one hand and a government contractor or other civilian on the other, to defraud the United « See D. S. v. Ingraham, 49 Fed. 155. "U. S. V. Strobach, 48 Fed. 902. In U. S. v. Wallace, 40 Fed. 147, it Is held that the official or person to whom the claim Is presented must be one " authorized to ap- prove, audit, or pay the same." *' There is little distinction between a claim that Is false and one that is fraudulent, and no significance is attached to the use of the disjunctive " or " In this connection. « See V. S. V. Bussell, 19 Fed. 594. " In the recent (1893) case of U. S. v. Shapleigh, 54 Fed. 126, it was held that the jury would not be " warranted in inferring such knowledge " (that the claim was false or fraudulent) " merely from the fact that he acted negligently and without ordinary business prudence ; they must at least be satisfied that he was aware of circumstances such as would induce an ordinarily intelligent and prudent man to believe his vouchers to be false." In V. S. v. Eoute, 33 Fed. 246, it is held that if the party honestly be- lieves the claim to be valid, though he may be quite mistaken, the case is not within the statute. But with this is to be taken the guailfication that a person who " presents a claim which he believes to be true and Just " is yet chargeable under the statute where he " seeks to substantiate " the claim " by affidavits, certificates, or depositions of persons who to his knowledge depose or certify to material facts of which they know nothing." TJ. S. 17. Jones, 32 Fed. 482. ■" Digest, 55. » See G. C. M. O. 28 of 1872. 702 MILITAKY LAW AIST) PRECEDENTS. States, to their mutual benefit, by means of falsified voucliers indicating 1089 the delivery by the latter of supplies not in fact furnished,'" false ac- counts for recruiting expenses,"" or other spurious or fraudulent claims."' PABAGBAFH 5. The making of the false oath here indicated, though not of course perjury at common law, (which is the giving of such an oath in a judicial proceeding or course of justice,") may properly be regarded as as- similated to that crime in some of its requisites." Thus the oath, as in perjury, should be to some material point, — that is to say, here, to some writing or statement in whole or In part pertinent to the proof or prosecution of the claim presented, — and should be taken before an official or person legally authorized to administer an oath. And the same may be said as to an oath procured to 6e made by another, the procuring of the making of a false oath being assimilated to subornation of perjury." As to the further ofCence of the advising of the making of a false oath, it may be added that "advises" is evidently to be construed like the same word in Art. 51, being related to the term " procures " much as it is there related to the term " persuades." " FABA&BAFH 6. Here the expressions " forges or counterfeits," " forging or counterfeiting," &c., are evidently intended to include any fraudulent mak- ing of the signature of another person, whether the same be or not imitated; the word "counterfeiting" pointing rather to a simulation of the hand- 1090 writing, while the general term " forging " embraces any form of false writing of the name." While this paragraph, in common with the two which precede it, enjploys the general description — " any writing or other paper," yet, as the purpose of the forgery, &c., must be to obtain the allowance or payment of a claim against the United States, the prosecution, as in a case of forgery at common law, should be prepared .to prove that the falsified signature is upon a paper which Is material, or which appears on Its face to be material, to the proof of the claim, so as to be capable of effecting or contributing to effect some fraud In connection with it." The writings or papers mainly had in view in the paragraph are the usual drafts on the Treasury," vouchers, certificates, re- turns, accounts, rolls, final statements, descriptive lists, &c., the completion of which by Ihe signature of the person interested, or of the officer whose formal autheiitlcation Is required, is essential to the substantiation of a claim for pay, &c." " See cases In G. C. M. O. 11 of 1872 ; G. 0. 8, Dept. of Cal., 1872 ; also cases in G. C. M. O. 4, 6, of 1873, where, however, the ofCence is not charged under the present Article. " See cases in G. O. 18 of 1864 ; G. C. M. O. 131 of 1864. " See cases In G. C. M. O. 152, 614, of 1865 ; Do. 47 of 1870 ; Do. 40 of 1890 ; also case of a combination of soldiers to alter and Increase the amounts due some of theU for clothing not drawn, and to make claim for the Increased amounts — ^in G. C. M. O; 59 of 1890. " 2 Bishop, C. L. 8 1015. " It may also be assimilated, in like particulars, to the statutory perjury made punish- able by Sec. 5392, Rev. Sts. " That subornation of perjury is but another form of perjury, see 2 Bishop, C. L. 8 1056, 1197. And see Sec. 5393, Rev. Sts., by which subornation of perjury is made punishable precisely as is perjury. I* See Fifty-First Article, ante, p. 654. " Compare definitions of forgery in 1 Wharton, C. L. 8 653 ; 2 Bishop, C. L. 8 523. «° See 2 Bishop, C. L. § 524, 533. " See case in 6. C. M. O. 54 of 1887. " See cases in G. O. 181 of 1863 ; G. C. M. O. 1 of 1883 ; Digest, 55-6 ; also the case of the forging by a soldier of an officer's name to a check on the U. S., In G. C. M. O. 46 of 1884. MILITARY LAW AND PRECEDENTS. 703 To establish a charge under this paragraph, it should of course appear that the accused made, &c., the signature alleged to be forged or counterfeited, wholly without the authority of the person whose name it is, since if any authority to sign It existed, the specific offence would not be committed." As has already been observed to be the fact with regard to this class of offences in general, no fraud upon the United States need actually be con- summated in order to complete the offence specified in this paragraph. Here, as in forgery at common law, the mere making of the false signature with the illegal purpose constitutes the crime; the contemplated wrong need not have been effected, nor need the forged writing have been uttered or used." In the present instance indeed the using of the forged signature is made a separate specific offence : in the majority of the cases the two offences — 1091 the forging, &c., and the knowingly uttering — ^have generally both been committed by the accused :" the latter offence, however, is complete whether the falsification of the signature was the act of the accused or some other person. As to the further offences specified, of procuring " and advising the forging, &c., of the signature, or its use when forged, &c., the remarks will be applicable which have already been made in regard to the similar forms of the offences designated in the previous paragraphs. FABAGBAFH 7. The act here made criminal is, in substance, the paying out of public money, (or delivering of other public property,) to the person authorized to receive it, in a less amount however than is actually due him, and taking a receipt from him for the whole amount to which he is actually entitled. The criminality of the act consists, in general, in the illegal with- holding from such party of the difference between the sum or quantity paid or delivered and the face of the receipt, and the converting of such difference to his own use, by a disbursing or other officer, who, by the transaction, is also enabled to obtain credit with the United States for a larger amount than has actually been expended by him." While the proceeding may be collusive, the act is ordinarily effected by deceiving the employee, &c., as to the sum or quantity really due him, and causing him to sign a blank or falsified receipt therefor." The criminal nature of the offence is illustrated by a refer- 1092 ence to Sec. 5483 of the Bevised Statutes, by which an officer, charged with the paying out of any moneys appropriated by Congress, who pays to a government employee a sum less than that provided by law, while requiring him " to receipt or give a voucher for an amount greater than that actually « See 2 Bish»p, C. L. S 579. M 2 Bishop, C. L. 8 602. " See the cases in G. O. 336 of 1863 ; Do. 67 of 1864 ; G. C. M. O. 196, 395, of 1864 ; Do 395 of 1865 ; Do. 39 of 1866 ; Do. 56 of 1867 ; Do. 53 of 1870 ; Do. 27 of 1872. "In G. C. M. O. 605 of 1865, is published a case of an officer convicted of an offence of this class, in procuring a corporal to forge upon a pay-roll the names of twelve persons as government employees, with a view of substantiating a fraudulent claim for an amount oC money as pay due them. In Do. 53 of 1870 is a further case of an officer's procuring an enlisted man of his command to falsify the company rolls by entering the name of a deserter thereon, preparatory to presenting the roll for payment and drawing the deserter's pay. ^^ See Digest, 56. =8 Note cases in G. C. M. O. 196 of 1864 ; Do. 35 of 1872. In a case in Do. 52 of 187S the offence was committed by an A. A. Q. M., in turning over public property to hi^ successor And compare case in Do. 31 of 1869,' charged, however, under Art. 61. T in Do 37 of 1877, a form of the offence was committed by causing a con- tra ^'^0^10 sign a receipt for 'a greater amount than was due him, formally paying him ll7f„U amount and thereupon receiving from him the balance which was then ap- propruied Tnd compare similar case in G. C. M. 0. 37 of 1877. 704 MILITARY LAW AND PRECEDENTS. paid to and received by him," Is declared to be guilty of embezzlement, and directed to be fined in double the amount so withheld from the employee, and imprisoned at hard labor for two years." PAHAGBAPH 8. This paragraph makes punishable the giving by an offi- cer, &c., of a receipt, known by him to be false or not known by him to be true, for property as duly delivered for public use in the military service — " with intent to defraud the United States." The act indicated is commonly a col- lusive transaction between the officer and the contractor, or other person, by whom the property is delivered; the former agreeing, for a consideration, to receive less than the amount to which the United States is entitled,' (and thus relieve the latter from furnishing the entire quantity,) while at the same time giving him a receipt certifying on its face the delivery of the whole." PARAGRAPH 9. The forms of offence here designated are — the Stealing, Embezzlement, Misappropriation, Misapplication, and improper Sale or Disposi- tion of money of the United States or other public property, " furnished or in- tended for the military service." STEALING. The offence of larceny has already been sufficiently fully con- sidered under the Fifty-Eighth Article, by which general courts-martial are invested with a jurisdiction of this and sundry other crimes, in time of war. The present Article vests courts-martial with jurisdiction, at all times — 1093 in peace as well as in war — of larceny of public property, " furnished," &c., as above. For the stealing indeed of public money or military stores, a charge will also in general lie under Art. 62, inasmuch as such offence will ordinarily be one directly affecting military discipline." Where the stealing is not of public property, it must, (in time of peace,) be charged as an offence, under the latter Article. EMBEZZLEMENT — Definition. This is not a common-law but a statutory offence." In general terms it may be defined as a fraudulent or unlawful ap- propriation of money or other property, by a person in a fiduciary capacity, — as a servant, agent, trustee, bailee, &c., — to whom, in such capacity, it has been entrusted by the owner." Embezzlement, though really a species of larceny," differs from larceny at common law, and mainly in the fact that the latter in- volves, (as heretofore shown,") a trespass by a taking from the possession of tie owner, whereas, in embezzlement, in general, the property being in the rightful possession of the offender, no trespass is committed by the apropria- tlon." » See case in G. O. 63 of 1852. And note Sec. 5496, Rev. Sts., by which a disbursing officer who " accepts, receives, or transmits to the Treasury Department, to be allowed in his favor, any receipt or voucher from a creditor of the United States," without hav- ing in fact paid to him the full amount of Its face, is declared to be guilty of the criminal conversion of such amount. " See case reported by Hough, 256, 266 ; also case in G. C. M. O. 11 of 1872 ; and Digest, 56. " See under the Sixty-Second Article, post, p. 720-721, and note ; also Digest, 59. ra 2 Bishop, C. L. § 319 ; Bie parte Hedley, 31 Cal. 111. " 1 Wharton, C. L. § 1009 ; 2 Bishop, C L. § 325 ; Samuel, 515 ; Bx parte Hedley, 31 Cal., 108. " The property must be shown to have been entrusted to him, so that It was in his possession and not in the possession of the owner." Com. v. O'Malley, 97 Mass., 586. " See Com. v. Simpson, 9 Met., 143. " Under the Fifty-Eighth Article, ante, p. 685. '" Upon the history of Embezzlement, see 1 Wharton, C. L., c. XV ; 2 Bishop, C. L., c. XVI ; Com. v. Stearns, 2 Met., 345 ; Com. v. Simpson, 9 Id., 142 ; Com. v. Hayes, 14 Gray 64 ; People v. Honnessey, 15 Wend., 151. MILITABY LAW AND PRECEDENTS. 705 Proof of the offence under the Article. To establish embezzlement in gen- eral it is necessary to show— 1. Tliat the accused was a servant or agent of the owner of the money or property, or maintained some fiduciary relation toward him ; 2. That lie received into his possession, in his fiduciary capacity, certain money or other property of such owner ; 3. That he fraudulently converted such money or property to his own use." 1094 An officer or soldier of the army is always in a fiduciary relation to the United States as an agent or employee of the government, but it will not in general be necessary to prove his commission, appointment, or enlistment unless it be specially controverted. Where it is charged that the ofEence was committed by him in a particular function or capacity, as that of paymaster, quartermaster, commissary of subsistence, military storekeeper, or other dis- bursing officer, or as quartermaster sergeant, commissary sergeant, hospital steward, &c.,™ the fact that such was his office or capacity and that he was duly acting therein at the time of the offence, will, if not admitted, readily be established by general notoriety, by the party's admissions of his status, or by the orders investing him with the particular character and duty. The receipt and possession of the property -will commonly be shown by the accounts, returns, &c., of the accused, by the testimony of the officer or other person by whom the money or other property was transferred, delivered, or paid, by the testimony of the public depositary, or by the open possession and use or disposition by the accused of the property as property of the United States. The fact of the fraudulent conversion in embezzlement may be evidenced by the absconding" of the accused with public funds, or his desertion with articles of public property in his possession ; by a deliberate falsification, as where the party denies that he has ever received the money or property which has been in fact committed to him ; by the rendering of a false return or account in which the receipt of the money alleged to have been embezzled, is omitted to be ackuowldged, or in which a fictitious balance is made to appear, or which is otherwise falsified or purposely misstated;" by a failure altogether to 1095 render an account required by statute, regulation or order; by the un- authorized selling, giving, or otherwise disposing of public property to civilians or military persons;" by the paying out of public funds to persons not entitled to receive the same ; by a neglect to pay sums justly due to em- ployees, contractors, or other pubUc creditors, out of money furnished for the purpose," or to make any other required disbursement; by a neglect to honor proper requisitions for military stores, or a dealing of them out in short or insufficient quantities notwithstanding that ample supplies have been provided ■"Ex parte Hedley, 31 Cal., 112. ra Or as post treasurer of a military post, (G. C. M. O. 52 of 1877 -i) treasurer of a military prison, (Id. 6;) sergeant in charge of a recruiting rendezvous, (6. C. M. O. 37 of 1877.) And see case in G. C. M. O. 31 of 1883, of a soldier who embezzled a " depot fund." '" The element of stealth is said by the authorities to be peculiarly characteristic of this crime. Rex v. Norman, C. & M., 501 ; Com. v. Tuckerman, 10 Gray, 201, 207 ; 1 Wharton, C. L. § 1030 ; Samuel, 515 ; O'Brien, 131. '" As by charging amounts as paid which have not been paid. Q. C. M. O. 49 of 1867 O'Brien, 131- One of the most signiflcant falsifications of account consists in car- rying balances over from one account to anotber as " money on hand," when in fact the same Is not on hand but has been in some way illegally appropriated or expended. "The selling of ammunition, arms, clothing, &c., made punishable in Arts. 16 and 17, is a form of embezzelment ; and so is the retention and conversion of captured property in violation of the injunction of Art. 9. S3 See Samuel. 529 ; O'Brien, 131. 440593 O - 42-- 45 706 MILITABY LAW AND PRECEDENTS. by the government;*' by a failure to turn over to a successor, on being re- lieved, the full amount of public property for which the officer Is legally ac- countable;" or by any other form of non-performance or mal-performance of the trust devolved upon the party." Further, a conversion may be presum- able from an inability on the part of an officer to respond to the demand of an Inspector general, or other proper authbrity, to make actual exhibit of or ac- count for the moneys, stores, &c., for which he is shown by his returns or accounts to be responsible." It may also be presumable from an exhibit made of such moneys, effected by borrowing money from other officers or persons, to represent, for the moment, an amount of public funds which should be in possession but has in fact been illegally used and is In deficit. Defence. Presumptive evidence, such as has been indicated, may be met by the proof of facts going to rebut the inference that the property has been fraudulently converted. Thus it may be shown that the funds or stores were captured by the enemy, lost without fault on the part of the officer, or 1096 stolen or presumably stolen by a clerk, soldier or other person ; " or that a deficiency of supplies was caused by unavoidable wastage or an over-issue not involving culpability." So, in a case of an alleged conversion of property other than money, the greater offence may be rebutted by evidence of a lesser ; as for example, by evidence that the property was not embezzled but misapplied or Improperly diverted only — as by using It for private purposes or loaning It." But the using of public money for private purposes, or the loaning of it, would, (independently of the statutory provisions yet to be noticed,) constitute an act of embezzlement, and it would be no justification that the accused fully intended to restore the amount," or even that he did actually restore it before charges were preferred." A defence In the nature of offset or counter-claim could, it need hardly be added, scarcely be tenable in a military case. Thus an officer could not excuse the appropriation of public money in his hands on the ground that he was but reimbursing himself for pay or allowances wrongfully withheld from him. SPECIAL STATUTORY EMBEZZLEMENTS. The statutes of the United States, viz. Sees. 5488, 5491 and 5492, Rev. Sts., have expressly declared that certain acts, when committed by disbursing officers, shall constitute embezzle- ments of public money and be punishable as such with fine and imprisonment. The acts specified are— the depositing, or withdrawing from deposit, of public " Samuel, 527-8. " G. C. M. O. 19, 27, of 1872. »6. O. 18 of 1861. The mixing of one's private funds with the public funds, by depositing them without authority with the same public depositary, may, under some circumstances, be eviaence of a fraudulent intent to convert the latter. Eemarks of Secretary of War in G. C. M. O. 34 of 1872. •" Q. C. M. O. 49 of 1867 ; also Do. 5 of 1869 ; Do. 81 of 1874. " See Digest, 58 ; also Sees. 1059, 1062, investing the Court of Claims with jurisdic- tion to determine the claims of disbursing officers for relief from pecuniary responsi- bility on account of the loss by thero, while in the line of duty, of public funds, &c., by " capture or otherwise," and with authority to grant such relief where the officer was without fault or negligence. "Hough, 257, 267. "• See " Misapplication," poat. » In Com. V. Tuclcerman, 10 Gray, 201, 205, the Court say of an embezzlement that Its criminality was not affected by the fact that, at the time of taking the funds, the party " intended to restore what he had so appropriated before the appropriation should become known to the owners, and believed that he should be able to do so, and had in his possession property to secure the full amount taken." "G. C. M. O. 34 of 1872. MILITARY LAW AND PRECEDENTS. 707 moneys except as legally authorized ; the failing to deposit the same in 1097 the Treasury or with a public depositary when required to do so by the proper superior; the loaning of the same with or without interest; the failing to render accounts for the same as provided by law ; and the transferring or applying the same for any purpose not prescribed by law." A further em- bezzlement, designated in Sec. 5496 as consisting in the acceptance, or transmit- tal to the Treasury for allowance, of vouchers or receipts for money which has not in fact been paid, has already been noticed under Paragraph 7. These acts, though in terms made the subject of trial and punishment by the U. S. civil tribunals, are, when committed by military disbursing officers, properly taken cognizance of by courts-martial under Art. 60, as being forms of the statutory ofEence of embezzlement expressly constituted and defined in the laws of the United States. This was in effect ruled by Gen. Holt as Secre- tary of War, in 1861, in the case of Capt. Jordan, Asst. Quartermaster," charged with the ofEence specified in Sec. 5496; and, in a series of instances since arising, oflScers of the army have been tried and sentenced by court- martial for specific embezzlements of the class under consideration." Bules of evidence on proof of these embezzlements — 1. No specific intent required to be shown. These statutory enibezzlements are consummated by the mere commission of the act in which the embezzlement in any instance is defined to consist, without regard to the purpose or motive of the offender. It is the object of the statute law to ensure, by every precaution suggested by experience, the safe-keeping and proper disposition of the public moneys: it therefore makes the mere departure from the rules which it has established with this view a crime per se independently of the circumstances or the 1098 animus of the accused ; " these being left to affect only the measure of the punishment. It is accordingly no defence that the act was unaccom- panied With a design to defraud the United States, or to convert the money to the party's personal use ; or that it was done innocently and in good faith but under a mistake of judgment ; or, where moneys have been illegally withdrawn or used, that the amount was restored to the proper depositary or otherwise made good Before formal demand was made for the same," or before charges werfe jireferred in the case. 2. tJettiand and refusal, prima facie evidence of guilt. The law, — in Sec. 5495, JElev. Sts., — further expressly lays down a rule of evidence to the effect that the refusal of any person, charged with the custody and disposition of public moneys, to pay any draft, order, or warrant drawn upon him, by the proper accounting officer of the Treasury, for the public money in his hands, or to transfer or disburse any, such money promptly, upon the requirement of an authorized officer, " sTiaU be deemed, upon the trial of any indictmeni against such person for embezzlement, as presumptive evidence" of the commission of " To these is added — the converting of such moneys in any manner to perS9nal use. But this general ofEence is no ihore than the ordinary embezzlement already considered. " 6. O. 1, War Dept., 1861; " See cases in G. C. M. O. 175 of 1866 ; Do. 43, 86, of 1868 ; Do. 5 of 1869 ; Do. 2, 18, 21, of 1871 ; Do. 27, 34, of 1872 ; Do. 18, 58, 81, of 1874 ; Do. 51 of 1875. In. some cases an' unauthorized Withdrawing or depositing of public moneys has been charged, in form or In substance as " Violation of Sec. 5488, Kev. Sts., to the prejudice of good order and military discipline." See G. C. M. O. 52 of 1877 ; Do. 5 of 1881 ; Do. 30 of 1883. •"In G. C. M. O. 34 of 1872, it is said by the Secretary of War, specially of Sec. 5488 Kev. Sts., that it is " a statute enacted for the more complete protection of the Tteasury, and which, without regard to the intent of the offender, denounces all_ with- drawals from a public depositary, or dispositions of public moneys, not authorized by express law." And see Digest, 57 ; 14 Opins. At Gen., 473. •• Digest, 57. And see G, C. M. O, 34 of 1872, 708 MILITARY liAW AND PEECEDBNTS. the offence." Applying this rule to a military case — ^proof of a fornfal demand upon an officer or soldier In cbarge of public funds, made by an authorized superior, to pay over or account for the same, followed by his refusal, or— what is equivalent in law— neglect within a reasonable time, so to do, would be evidence per se of embezzlement. Such evidence being produced, the prose- cution would not be required to show what had become of the funds, but the burden would be thrown upon the accused to establish that his disposition of the same had been in accordance with la\fr. MISAPPROPBIATION. The knowing and wilful, (i. e. intentional,) mis- appropriation of public property, specified in Paragraph 9, may be de- 1099 fined to be the assuming to one's self, or assigning to another, of the ownership of such property, where the same is not entrusted to the party in a fiduciary capacity and the act is therefore not an embezzlement. Thus the offence is committed vhere an officer appropriates materials known by him to belong to the United States, or the labor of government employees. In erecting a building or constructing a carriage which is to be his own property ."i The appropriation, however, need not be for the party's own benefit, but may be resorted to for a friend or for the accommodation of a person interested with the officer in some business, &c. MISAPPLICATION. This offence is, strictly, distinguishable from the last in that it Is properly an appropriation not of the ownership of the property but of its use, and that, by the terms of the paragraph, it must be an ap- propriation for the personal " benefit " of the offender ; as where an officer or soldier makes use without authority of animals, vehicles, tools, &c., of the government- whether or not specially entrusted to his charge — for the pur- poses of himself or his family." WRONGPtTL SALE OR DISPOSITION. Under this designation are in- cluded sales, &c., such as are made punishable by Arts. 16 and 17, as alsq any other unauthorized sale,'" or any unauthorized pledge, barter, ex- 1100 change, loan, or gift, of public property.' The general and comprehensive term " wrongful disposition " includes also any appropriation or applica- tion of such property not embraced within the previous descriptions of offences In this Paragraph. Thus it would include unauthorized applications of the possession or use of the property not for the private purposes of the offender; " A further rule of evidence, In regard to the form of showing a balance of account against a person charged with embezzlement of public money, is enacted In See. 5495, Rev. Sts. •• See G. C. M. 0. 29 of 1881 ; Do. 83 of 1886. In the latter case it Is charged that B commissary sergeant did " knowingly and wilfully misappropriate and, apply to bis own use certain subsistence stores." " G. C. M. O. 379 of 1865. Inmates of a National Home for Volunteers not being in the military service, clothing Issued to them is not " furnished for the military service," and an indictment will not lie against an inmate under this statute for misapplying such clothing. U. S. v. Murphy, 9 Fed., 26. It may be remarked that a clear distinction of meaning between the terms " misap- propriate " and " misapply," and between these and " embezzle," as also " wrongfully dispose of," is not strictly observed in practice. In pleadings, drawn with no more than ordinary care, the same act is not unfrequently found described by several or even all of these terms in the same charge. Such irregularities, however, will not in general affect the validity of a sentence where an offence of this class has been substantially proved and found. >°°Ab, for example, a sale of condemned public property made by a quartermaster. In the absence of orders from the Department commander authorizing the same. G. C. li. O. 2 of 1878. •Such transactions are declared by Sec. 3748, Rev. Sts., to pass no title, but to render the article sold, &c., subject to seizure on the part of the United States wherever found. MILITARY LAW AND PBEOBDBITTS. 709 as, for example, the loaning by an officer or soldier to a civilian, (for his benefit exclusively,) of stores, tools, materials, &c., of the United States, with the understanding that the same were to be returned.' All such dispositions of public property are of course radically illegal for the reason that no executive officer, but Congress only, is empowered under the Constitution, (Art. IV, Sec 3 § 2,) to dispose of property of the United States.' This term, wrongful disposition, however, like the designations of misap- propriation 8(nd misapplication which precede, is, in practice, not always em- ployed in a strict sense, and it would not be exceeding the privilege of military pleadings to charge as a " wrongful disposition," under this Article, any illegal appropriation, diversion, or employment, knowingly made, of money or other property of the United States, not clearly constituting a larceny or embezzle- ment.* Defence, &c. While an accidental, or slight and temporary, application to personal use, or an unimportant, though irregular disposition, of government property will not in general be made the subject of a military charge, such application, &c., where material and continued, especially where so conspicuous as to constitute an example prejudicial to the morale or discipline of the com- mand, may be a serious ofCence. And the fact that the same is practiced gen- erally in a command, or is sanctioned by the commanding officer, cannot 1101 be accepted as a defence to the charge, though, as a circumstance to be considered in adjusting the measure of punishment, it may properly be admitted in evidence. FABAGBAFH 10. This paragraph makes punishable the purchasing, or receiving in pledge, of arms, clothing, stores, or other public property, from an officer or soldier who is without authority to sell or pledge the same. It is thus in a measure the complement of the latter portion of the preceding para- graph, in which is designated the ofCence of selling or disposing of similar property. The act Indicated is as a military offence most rare; as a civil offence, made punishable by Sec. 5438, Kev. Stats., it has been much more common. PUNISHMENT. The Article provides that offenders, upon conviction, "shall 6e punished by fine or imprisonment, or hy such other punishment as a court- martial may adjudge." Such a court may therefore adjudge, in its discretion, (subject to the existing law fixing the maximum of punishment,) either fine or imprisonment or both, and either with or without other penalties such as dismissal, discharge, reduction or forfeiture,' or any one or more of these penal- ties without either fine or imprIsonment> Where imprisonment or fine is Im- posed, the court may properly consult, as indicating a reasonable measure of punishment, the provisions of Sec. 5438, Kev. Sts., prescribing penalties for dvil offenders upon conviction of the same offences as those described in the ' See cases in G. C. M. O. 26 of 1869 ; Do. 18 of 1874. " D. S. V. NicoU, 1 Paine, C. C, 646. And see the cases of Loans, In large amounts, of lead and powder, made to civilians, by the Ordnance Department of the Army, in 1815-1817, specially reported upon and denounced as Illegal by a Committee of the House of Representatives. Am. S. P., Mil. Af., vol. II, pp. 287, 425, 525. And compare Lear v. U. S., 50 Eed., 65. * See note, ante, as to the absence, in general practice, of an accurate discrimination in charging,' &c., the ofeences of the class indicated in this Paragraph. Instances of embezzlement charged as " wrongful disposition " are occasionally to be met with in the 5 Embezzlement of military stores in time of war may be a most serious offence. By a Resolution of Aug. 22, 1780, (3 Jour. Cong.. 511.) this ofEence was made punishable With death. 710 MILITARY LAW AND PBECEDBNTS, Article, or — ^In cases of the specific statutory embezzlements — the provisions, as to punishment, of the Sections defining the same. Where any considerable fine Is adjudged, the court will do well to add an imprisonment until the fine be paid ; this, with or -without the limitation that the imprisonment shall not exceed a certain fixed number of years.' Where a dismissal is adjudged, the sentence, In a case of an offence involving fraud, should contain the direction in regard to the publication of the crime, punishment, &c., which is prescribed by Art. 100.' EXTENT OP LIABILITY TO PROSECUTION UNBEIt THE 1102 ABTICLE. The concluding provision of the Article, by which the juris- diction of courts-martial over offenders is continued luitil after their sepa- ration, by discharge or dismissal, from the military service, has already — in the Chapter on Jurisdiction — been remarked upon as being of at least doubtful constitutionality, in that it subjects civilians to military arrest, trial and punishment. Enacted, (as we have seen,) in 1863, with a special view to the status of the then existing war, its application to the army in time of peace was probably not contemplated. Since 1865 the jurisdiction thus extended has been exercised in but few cases.' That such exceptional authority and jurisdiction, if accepted as legal, are still subject to the general limitation of the 103d Article, has also been pointed out in a previous Chapter." XXVI. THE SIXTY-FIRST ARTICLE. [Conduct Unbecoming an Officer and a Gentleman.] "Akt. 61. Any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service." THE ORIGINAL ARTICLE. The corresponding provision, as it appeared In the Articles of 1775, was as follows : — " Whatsoever commissioned officer shaU be convicted before a general court-martial of behaving in a scandalous, irtr famous manner, such os is unbecoming the character of an officer and a gen- tleman, shall be discharged from the service." This language, which was taken from the then existing British Articles, was repeated In the code of 1776, and re-enacted In substantially identical terms in the revision of 1786. In the succeeding code of 1806, the Article first assumed its present form, the words " scandalous " and " infamous " being omitted." 1103 EFFECT OP THE PRESENT PORM. It is the effect of this omis- sion to extend materially the scope of the Article," and thus indeed to es- •See ante. Chapter XX, p, 390. '4.n«e, Chapter XX, p. 407. » See cases published in G. O. 15, Dept. of the Carolinas, 1866 ; Do. 13 Dept of the South, 1867 ; Do. 143, Navy Dept., 1869 ; G. C. M. O. 15, (H. A.,) 1871 ; Do. 45, 46, Dept. of the East, 1893. The earlier cases were also few, the principal being those In 6. C. M. O. 241 at 1864 ; Do. 45 of 1865 ; G. O. 78, Dept. of the East, 1864 : Do. 105, Dept. of the Mo, 1864. "Chapter XVI, p. 258. •"That the conduct need no longer be scandalous or infamous, see G. O. 41 of 1862; DioBST, 61. The term "scandalous conduct" Is preserved In the article of the naval code, (Art. 8, first par.,) most nearly corresponding to our 6l8t. The present cor- responding provision of the British law, (Army Act § 16.) Is :—" Every officer who behaves In a scandalous manner, unbecoming the character of an officer and a gentle- man, shall on conviction by court-martial be cashiered " " O'Brien, 160 ; G. O. 30 of 1852 ; Do. 29. Dept. of Cal., 1865 ; G. C. M. O. 69, Dept. of tbe East, 1870. MILITARY LAW AND PRECEDENTS. 711 tabllsh a higher standard of character and conduct for officers of the army. As the Article now stands, it is no longer essential, to expose an officer to dis- missal, that his conduct as charged should be infamous either in the legal or the colloquial sense;" nor is it absolutely necessary, (though this will often be its efCect,) that it scandalize the military service or the community. It Is only required that it should be " unbecoming " — a comprehensive term includ- ing not only all that is conveyed by the words " scandalous " and " infamous " but more." At the same time the original phraseology is properly borne in mind as indicating that, to become the subject of a charge, the unbecoming conduct should be not slight but of a material and pronounced character. CONSTBUCTION. In order to determine what is " conduct unbecoming an officer and a gentleman," it will be desirable first to define the two terms " unbecoming " and " gentleman." " Unbecoming," as here employed, is understood to mean not merely inap- propriate or unsuitable, as being opposed to good taste or propriety or not con- sonant with usage, but morally unbefitting and unworthy. " Gentleman." So, this term is believed to be used, not simply to designate a person of education, refinement and good breeding and manners, but to indi- cate such a gentleman as an officer of the army is expected to be," vis. a man of honor ; that Is to say, a man of high sense of justice, of an elevated 1104 standard of morals and manners, and of a corresponding general deportment." THE MISCONDXrCT CONTEHFLA.TI!I). These terms being settled, it is next to be observed that the conduct had in view by the Article may not con- sist in conduct unbecoming an officer only, or in conduct unbecoming a gentle- man only, but must in every case be unbecoming the accused in both these characters at once. Acts indeed which are discreditable to the officer can scarcely fail to involve the reputation of the individual as a gentleman; but there may be acts which, in the estimate of a court-martial, may be unbecoming to an accused party in the one capacity without being necessarily unbecoming to him in the other." We have seen " that to except, from a conviction upon a charge of " Conduct unbecoming an officer and a gentleman," the words — " and a gentleman," and find the accused guilty of conduct unbecoming an officer only, would be quite unauthorized, the latter not being an offence specifically known to the military law. To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect. Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender," and at the same time must be of such a nature or " See Opln. At. Gen., In Gen. Swaim's case — G. C. M. O. 19 of 1885 ; 18 Opins., 113. M Tytler, 212 ; O'Brien, 160. " " An officer of the army • • ♦ is bound by the law to be a gentleman." 6 Opins. At Gen 417 It is said by De Hart, (p. 372,) that — " the military community cannot expect nor ought it to be expected of them, to preserve a higher tone of moral con- duct than what is sustained by the higher orders of society." But they may fairly be expected to preserve one which is in no degree lower. See G. O. 41 of 1852, p. 5. >» Compare the definition of "gentleman" in the "Century" Dictionary, the " Im- nerlal " Do. ; the " Standard " Do. "See G O 30 of 1852 ; Do. 29, Dept. of Cal., 1865 ; also Do. 8, War Dept., 1856, where a neglect of duty, charged under this Article, is referred to as not being " of the immoral and dishonorable or disreputable character necessary to sustain a charge under" the same. " Chapter XIX— The Finding, p. 380. "See 18 Opins. At. Gen., 117, dted port. 712 MILITARY LAW AND PEECBDBNTS. committetl under such circumstances as to bring dishonor or disrepute upon the military profession which he represents." 1105 It is to be observed that wWle the act charged will more usually have been committed In a military capacity, or have grown out of some military status or relation, it is by no means essential that this should have been its history * It may equally well have originated in some private transaction of the party, (as a member of civU society or as a man of business,) which, while impeaching his personal honor, has involved such notoriety or publicity, or led to such just complaint to superior military authority,** as to have seri- ously compromised Ids character and position as an officer of the army and brought scandal or reproach upon the service." Of this description is that disregard of his pecuniary obligations by an officer which — as will presently be noted — may, under certain circumstances, properly become the subject of a charge under the present Article. But a charge founded upon a purely private transaction of an officer of the army Is not favored in military law, and unless clearly of the above compromising character should not be entertained." And if the act, though ungentlemanlike, be of a trifling character. Involving no material prejudice to individual rights, or offence against public morals or decorum, it will not in general properly be viewed as so affecting the reputation of the officer or the credit of the service as to be made the occasion of a prose- cution under the Article." The quality. Indeed, of the conduct Intended to be stigmatized by this provi- sion of the code Is, in general terms, Indicated by the fact that a conviction of the same must necessarily entail the penalty of dismissals. The Article 1106 In the fewest words declares that a member of the army who misconducts himself as described is unworthy to abide In the military service ot the United States."' The fitness therefore of the accused to bold a commission in >» It Is not absolutely essential that the act or condTict of the offender should be intrinsically dishonorable. In O. O. 25, Dept. ot the Mo., 1867, Gen. Hancock ob- serves : — " It is not to be considered that the conduct of an officer should necessarily affect his honor to make him subject to a charge laid under this Article. An officer may be guilty, In the heat of passion, of conduct properly so laid, without affecting his honor. • • • Although dishonorable conduct is conduct unbecoming an officer and a gentleman, the converse of the proposition is not always true. And see G. O. 3 of 1856, cited in note ante, where the conduct is described as " dishonorable or disrepu- table." Cases, however, in which conduct properly charged under this Article docs not involve some dishonor, are of rare occurrence. *> De Hart, 373 ; O'Brien, 159-60 ; Kunkle i>. tJ. S., 19 Ct. Ci., 414, citing Diosai. " As to complaints made to the War Department, see poet. "Cited by the V. S. Supreme Court, (Gray J.,) in Smith v. Whitney, 116 U. S., 185. " See Manual, 304. »• The act charged need not be of the " grossest " or " basest " character, or " of such a nature as to render the guilty party a moral and social outlaw." At the same time "mere Indecorum " cannot properly form the basis of a charge under this Article. 18 Opins. At. Gen., 117, 118. And see G. O. 97, 111, Army of the Potomac, 1862; O'Brien, 159. u " The retention of a member of the army, after a conviction of this derogatory nature, would not only be disreputable to the character of the military society, but of no indirect tendency, from the force of example, to contaminate the body of the society itself." Samuel, 645. Simmons, (S 158,) refers to the Article as "essential to the high respectability and honorable character of the army, by providing for the removal from it of officers who may be guilty " of the conduct denounced. And see O'Brien, 159. In G. O. Ill, Army of the Potomac, 1862, it is said by Gen. McClellan : " These words, (' conduct unbecoming,' &c.,) imply something more than indecorum, and military men do not consider the charge sustained unless the evidence shows the accused to be one with whom his brother officers cannot associate without loss of self respect." In G. C. M. 0. 88, War Dept., 1874, it is observed, that—" the chief end and aim of this Article is to maintain a correct rule of gentlemanlike conduct among officers of the MILITARY LAW AND PRECEDENTS. 713 the army, as discovered by the nature of the behaviour complained of, or rather his worthiness, morally, to remain in it after and in view of such behaviour, is perhaps the most reliable test of his amenability to trial and punishment under this Article." GENERAL DEFINITION. " Conduct unbecoming an officer and a gentle- man " may thus be defined to be : — ^Action or behaviour in an official capacity, which, in dishonoring or otherwise disgracing the individual as an officer, seri- ously compromises his character and standing as a gentleman; Or action or behaviour in an unofficial or private capacity, which, in dishonoring or disgrac- ing the individual personally as a gentleman, seriously compromises his position as an officer and exhibits him as morally unworthy to remain a member of the honorable profession of arms. INSTANCES OP OFFENCES CHABOED UNDEB THE ABTICLE. The definition above given is best illustrated by a reference to the principal 3107 offences which, in practice, as indicated mainly by the General Orders, have been charged and prosecuted under this Article." These are as follows : — Making false official reports, statements, &c., to commanding or superior officers.^ Making false statements or representations to inferior officers intended to affect their official action or liability." Making false representations to such an officer in turning over to him public property." Making false or calumnious reports or statements In regard to a command- ing, (or other,) officer." Writing or publishing false or libellous matter In regard to another officer." Knowingly preferring false charges or accusations." Attempting by under- hand means to undermine the reputation of an officer." army, and, with this view, to provide for expulsion from the service of any who may be guilty of such disgraceful or scandalous offences against decency as those set forth in these specifications," (gross drunken conduct, and association with prostitutes, in public.) And see G. O. 167, Dept. of Va. and No. Ca., 1864 ; Do. 29. Dept. of Cal., 1865 ; also opinion of At. Gen. in Swaim's Case, G. C. M. O. 19 of 1885; IS Opins, 113. =' Compare 18 Opins. At. Gen., 118. " It is in construing this Article that Hough, (P., 222,) well observes : — " The de- cisions of courts-martial, when confirmed, show more clearly than any legal work can do what is the opinion of military men, who sit to try such cases, (i. e., cases of offences charged under this Article,) in a great measure as o court of honor." 2s G. O. 22 of 1845 ; Do. 36, 42, of 1851 ; Do. 30 of 1852 ; Do. 6 of 1856, Do. 234 of 1863 ; G. C. M. O. 279 of 1864 ; Do. 166, 179, of 1866 ; Do. 7, 38, of 1867 ; Do. 41, 60, 71, 74, of 1868 ; Do. 1. 5, 19, 20, 61, 62, 67, 71, of 1869 ; Do. 24, 38, 47, 49, of 1870 ; Do. 2, 20, of 1871 ; Do. 12, 13, 19, 35, of 1872 ; Do. 10, 27, 52, of 1873 ; Do. 3, 23, 68, of 1874 ; Do. 67, 84, 92, 104, of 1875 ; Do. 108 of 1876 ;.Do. 18, 36, 46, 52, of 1877, Do. 38 of 1880 ; Do. 5, 11, of 1881 ; Do. 39 of 1882 ; Do. 30, of 1883, Do. 19 of 1885 ; Do. 18 of 1886 ; Do. 54 of 1888 ; Do. 40 of 1890 ; G. O. 35, Dept. of the Miss., 1862. «" G. C. M. O. 251 of 1864 ; Do. 61, 73, of 1869 ; Do. 4 of 1873, Do. 39 of 1877. » G. C. M. 0. 24 of 1868 ; Do. 5, 62, of 1869, Do. 52 of 1873. aQ. C. M. 0. 27 of 1888. B G. C. M. O. 80 of 1875 ; Do. 44 of 1878 ; Do. 1 of 1881 ; Do. 31 of 1889 ; G. O. 86, Dist W. Tenn., 1862 ; Do. 28, Dept of the Mo., 1861. •• G. O. 9 of 1853 ; Do. 1, 6, of 1856 ; G. C. M. 0. 638 of 1865 ; Do. 44 of 1878 ; Do. 1 of 1881 ; Do. 31 of 1889 ; Do. 8 of 1890 ; Do. 19 of 1886, (falsely charging a superior officer with perjury and procuring him to be Indicted therefor.) MG. O. 26 of 1835. And see Hough, 526; Id., (P.) 233. In, a case, however, in G. O 18 of 1861, in which an officer was convicted of keeping a " hlach hook," in which to record the derelictions of his brother officers, with a view to charges, &e., as an offence under this Article, the finding was disapproved on the ground that public authority could have no right to inquire into private recofds of this nature. 714 MILITARY LAW AND PRECEDENTS. 1108 Using insulting and defamatory language, without justification, to another officer, or of him in the presence of other military persons, or behaving towards him in an otherwise grossly insulting manner.'' Opening and reading letters or communications addressed to another officer." Making a violent assault without due cause upon another officer." Giving false testimony as a witness before a court-martial or board." At- tempting to suborn testimony to be given before a court-martial." Breach of trust, official, semi-official, or personal." 1109 Duplication of pay accounts." »G. O. 41, 97, of 1835; Do. 30 of 1852; Do. 15, of 1860; Do. 146, 168, 183, 243. 249, 310, 330, ,SSO, of 1863, Do. 13, 33, 49, 69, 81, of 1864 ; G. C. M. O. 100, 149, of 1864 ; Do. 425 of 1865 ; Do. 1 oi 1870, Do. 20 of 1871 ; Do. 4 of 1872 ; Do. 9, 27, of 1873; Do. 11 of 1874; Do. 127 of 1876; Do. 41 of 1879; Do. 31 of 1889; G. O. 73, Army of the Potomac, 1862 ; Do. 16, Mountain Dept., 1862 ; Do. 64, Dept. of Arizona, 1887. >«G. O. 15, Dept. & Army of the Tenn., 1864, G. C. M. O. 177 of 1866. In Col. D'Utassy's case, (G. O. 159 of 1863,) this oftencc was charged under Art. 62. " G. O. 30 of 1852 ; Do. 249 of 1863 ; Do. 13, 47, 69, of 1864 ; Q. C. M. O. 197 of 1864 ; Do. 177 of 1866 ; Do. 28, 68, of 1869 ; Do. 42 of 1870 ; Do. 29 of 1871 ; Do. 58 of 1873 ; Do. 88 of 1887 ; Do. 79, Dept. of the Platte, 1888. " G. O. 37, Dept. of Kansas, 1864 ; G. C. M. O. 13 of 1872, Do. 6 of 1873, James, 601. And see case in Do. 173 o£ 1876, of a conviction for the using of a false affidavit by an accused in connection with his address to the court. " G. O. 69 of 1864. Conniving at the giving of false testimony G. C. M. O. 27 of 1888. *> In an official capacity: G. G. M. O. 31. 82 of 1868 ; Do. 45 of 1869 ; Do. 26 of 1871 ; Do. 36 of 1877 — (cases of appropriating company savings ;) G. O. 22 of 1845 ; G. C. M. O. 73 of 1869 — (cases of appropriating the company fund ;) G. C. M. O. 15 of 1870 — (case of appropriating savings of flour ration of enlisted men and post hospital, by a post treasurer ;) G. C. M. O. 26 of 1871 ; Do. 52 of 1877 — (cases of appropriating the post fund by a post treasurer ;) G. C. M. O. 52 of 1877 — (case of appropriating a prison fund;) G. C. M. O. 28 of 1870; Do. 26 of 1871; Do. 51 of 1875— (cases of approprioting extra-duty j)ay ;) 6. C. M. O. 26 of 1871; Do. 12 of 1872 — (ap- propriation of money due contractors and citizens ;) G. C. M. O. 18 of 1874 — (appro- priation by an A. Q. M. of a check on a U. S. depositary ;) G. C. M. O. 31 of 1869 ; Do. 25 of 1871 — (appropriation by an A. C. S. and a military storekeeper of the proceeds of sales of public property ;) G. O. 35, Dept. of No. Ca., 1865 — (appropriation of captured cotton by the oflicer commanding the guard ;) G. C. M. O. 376, 380, of 1864 ; Do. 38 of 1865 — (appropriation of bounty inoney by recruiting officers ;) G. O. 113, Dept. of the Gulf, 1865 — (appropriation of soldiers' pay by their captain, who had received It to: them from the paymaster ;) G. O. 234 of 1863 — (appropriation of money of deceased soldiers required to be sent to their heirs ;) G. O. 59 of 1864 — (appropriation of prop- erty in the charge of the officer as provost marshal ;) G. C. M. O. 13 of 1879 — (appro- priation of medicines and hospital stores by the surgeon In charge.) In a semi-official or personal capacity: G. O. 204 of 1863 ; G. C. M. O. 28 of 1870 ; G. O. 39, Dept. of Va., 1863 ; Do. 33 Dept. of No. Ca., 1865 — (appropriation of money received from soldiers for §afe-keeping, transmission, &c. ;) G. C. M. O. 50 of 1874 — (appropriation of money belonging to an officer's private mess ;) G. C. M. O. 21 of 1869 ; Do. 50 of 1874 — (approrplation of money committed to the officer by civilians ;) G. C. M. O. 50 of 1884^— (using for himself and family the provisions and property of his troop.) In a leading case of this class, in G. C. M. O. 24, Dept. of the East, 1878, of an officer charged, under Art. 61, with falling to account for a fund which had been raised for the erection of a soldier's monument, and entrusted to his charge, the finding was Guilty only of conduct to the prejudice of good order, &e. "This offence has already been referred to as not unfrequently charged under Art. 60 when Involving the presenting, &c., of a fraudulent claim for pay against the United States. It is peculiarly properly charged under Art. 61 where Individuals are swindled by the fraud of the officers. For cases of convictions see the following Orders ■ G C M O 56, 64, of 1867; Do. 61, 64, 72, of 1869; Do. 11, 22, 23, 38, 43, of 1870- Do 28 31 of 1872 ; Do. 42, 57, of 1874 ; Do. 25, 50, 59, 104, of 1875 ; Do. 17, 37, 100 of 1876 ' Do. 46, 52, of 1877 ; Do. 40 of 1878 ; Do. 32, 48, 62, of 1883 ; Do. 8, 9, of 1884 • Do 2o' 23, of 1885 ; Do. 52 of 1887 ; Do. 54 of 1888 ; Do. 20 of 1890 ; Do. 28 of 1892 • Do 8 of 1893 ; Do. 37, Navy Dept., 1883. In 25 of 1875, the accused is also convicted 'of selling his pay-rolls to bona-flde purchasers after his pay had been, to his knowledge, stopped by the Pay Department. In 46 of 1877, the accused is also convicted of having twice sold and received value for his mileage vouchers. MILITARY LAW AND PKECEDENTS, 715 Dishonorable neglect to discharge pecuniary obligations." nil Cruel punishment, or cruel, or unduly violent, treatment of soldiers." " G. C. M. O. 87 ol 1866 ; Do. 22, 46 ol 1872 ; Do. 10 of 1873 ; Do. 25, 50, 68, of 1874 ; Q. O. 55, Dept. of Washington, 1863 ; Do. 110, Id., 1864 ; Do. 1, Dept. of Va. & No. Ca., 1864, — (cases of non-payment of sums borrowed from, or otherwise due to, enlisted men;) Q. C. M. O. 68 of 1874 — (case of non-paym'ent of a loan from another officer!) G. C. M. 0. 17 of 1871; Do. 68 of 1874; DO. 25 of 1875; Do. 100 of 1876 — (non-payments of depts due to post- traders;) also G. C. M. O. 3, 55, 64, of 1869; Do. 15 of 1870 ; Do. 22 of 1872 ; Do. 82 of 1874 ; Do. 100 of 1876 ; Do. 46 of 1877 ; Do. 44, 70, of 1881 ; Do. 31 of 1887 ; Do. 3, 85, of 1891 ; Do. 28 of 1892 ; Do. 106 of 1893 ; G. O. 53 of 1894 ; G. O. 150, Navy Dept., 1870 ; G. C. M. O. 36, Id., 1881 ; Do. 24, Id., 1886. And see English precedents of convictions under a corresponding Article for dls- 1110 honorable disregard of indebtedness to military persons or civilians, in James, pp. 205, 223, 303, 510, 528, 614, 622, 696; also Hough, (P.) 234-5. In these cases, in general, the debt was contracted under false representations, or the failure to pay characterized by deceit, evasion, false promises, denial of indebtedness, &e., and the neglect to discharge the obligation, at least in part, was continued for an unconscionable period. Some such culpable and dishonorable circumstances should characterize the transaction to make it a proper basis for a military charge. A mere failure to settle a private debt, (which may be more the result of misfortune than of fault,) cannot of course properly become the subject of trial and punishment at military law. (See G. C. M. O. 69, Dept. of the East, 1881.) A test of the amenability of the party to charges will be the effect of his conduct upon the reputation of the service. If it be such as to compromise not only the officer personally but also the honor or credit of the military profession, — ^if, in the words of Gen. McDowell, in G. C. M. O. 113, Dept. of the East, 1870, it "brings the service into disrepute by lowering the faith -of the country in the integrity and fidelity to their obligations, of the commissioned officers of the Army," — an offence within the present Article will in general properly be held to have been committed. And see further on this subject, G. C. M. O. 49, Dept. of the East, 1872 ; Digest, 63. In G. C. M. O. 70 of 1881, a conviction of the offence under con- sideration was disapproved on the ground that there was no fraud in the officer's conduct. In the recent case of Fletcher v. U. S., 148 D. S. 84, where most of the acts charged as offences under Art. 61 consisted mainly in the continued non-payment, for long periods, of debts promised to be paid at certain times or speedily, (see the specifications in full in 26 Ct. CI., 545-7,) the Supreme Court say — " While it is argued that the non-payment of debts does not Justify conviction of Conduct unbecoming an officer and a gentleman, we think that the specifications went further than that, and contained the element that the circumstances under which the debts were contracted and not paid were such as to render the claimant amenable to the charge. • • » The specifications were not objected to for insufficiency, and cannot properly be held to be, on their face, incapable of sustaining the charge." And see remarks of Nott, J., in the same case in the Court of Claims, 26 Ct. CI., 563. In February, 1872, the following was published as a Circular to the Army, by the order of the Secretary of War : " The War Department Is frequently annoyed by re- quests of creditors to compel payment of their Just dues by officers of the army. There may be a few instances where delay in making payment is unavoidable. But in a large nuntber of cases an evident disposition appears to evade payment aiogether. It is not the province of the Secretary of War to adjudge such claims, nor is It within his power to stop the debtor's pay, and thus compel him to satisfy the claim. But such com- plaints coming so frequently from creditors, civil and military, betray a fact greatly to be deplored that the high standard of honor in such matters, which in former years caused the uniform to be respected and trusted without question, has become Impaired. While therefore those concerned should relieve the Department from the roortifleatlon of such appeals and the army from the odium which must attach to the necessity for mak- ine them the Secretary now distinctly declares his intention to bring to trial by court- martlal under the 61st Article of War, any officer, who, after due notice, shall fall to quiet sich claims against him ; and there are not wanting on record instances where eommissions ^J'- •'^J^VDo-^'s^f ml' Do. 23 of 1874 ; Do. 114 of 1875; Do. 36 of 1RR0- Do 61 of 1881 G. 0. 34, Army of the Potomac, 1862. And see Hough, 536. T 1 q of 1873 where the only excuse for the ill-tr«atment by the officer of the soldier was that he ^as an incorrigible drunkard, the reviewing authority remarks :-" This „ i,;L i« whollv unavailing for the arbitrary and cruel punishment inflicted upon this unflrtunate man Indeed, his condition of helpless drunkenness at the time of the vio- 716 MILITARY LAW AND PRECEDENTS. Demeaning of himBelf by an officer with soldiers or military Inferiors." 1112 Abuse of authority over soldiers by frauds or exactions practised upon them, or by requiring or influencing them to do illegal acts." Acts of fraud or gross falsity, cheats, or other corrupt conduct not included under former heads." lent assault upon him by accused must be regarded rather as an aggravation of the latter's offence." In a case in G. O. 20 of 1826, an oflSeer is convicted under this Article for striking with his flsts and a cowhide a female camp-follower ; in G. C. M. O. 48, Dept. of the Mo., 1884, for assaulting and beating a mess-servant. " As by drinking and carousing, or other drunken conduct, with them ; — see cases In G. O. 199, 209, of 1863 ; Do. 72 of 1864 ; G. C. M. O. 472 of 1865 ; Do. 37, 53, 60, of 1869 ; Do. 114 of 1875 ; Do. 34, 39, of 1877 ; G. O. 4, Army of the Potomac, 1863 ; James, 369 : By gambling with them ; — see Q. O. of Dec. 10, 1812, (pitching dollars for money ;) Do. 1 of 1847 ; Do. 234 of 1863 ; Q. C. M. 0. 93 of 1875 ; G. O. 39, Army of the Potomac, 1861 ; Do. 26, Id., 1862 ; Do. 34, Id., 1862, (while officer of the guard, with soldiers of the guard;) Do. 47, Dept. of Washington, 1«63 ; Do. 112, Dept. of the Mo., 1863 ; Do. 15, Dept & Army of the Tenn., 1864, (while officer of the day ;) Do. 25, Dept. of the South, 1862 ; Do. 16, Mountain Dept., 1862 ; Do. 22, Dept. of the Gulf, 1863 ; Do. 149, Id., 1864 ; Do. 29, Dept. of No. Ca., 1863 ; Do. 14, Dept. of Ky., 1865 : By indecently or unbecomingly familiar association or dealing with them, or indecent conduct in their presence ;— see G. O. 10 of 1825 ; G. C. M. O. 665 of 1865 ; Do. 43, 61, of 1867 ; Do. 84 of 1875 ; Do. 173 of 1876 ; G. O. 49, Dept. of Washington, 1863. In some early cases reported by James, (see pp. 206, 234,) officers were convicted of unbecoming conduct in associating on familiar terms with persons of inferior social rank, — as, (In a case of a lieutenant and an ensign,) with " a journeyman baker and a tinman's apprentice." In this connection may be noted a class of caseS) belonging mostly to the past, of officers charged with a violation of this Article In puslUanlmously submitting to public insult or chastisement by inferiors or others, without taking any measures to vindicate them- selves. See instances in James, 345, 654, 759, 762, 769 ; also In re Foe, 5 B. & Ad,, 681. Similar cases ta our service are found chiefly in G. O. between 1809 and 1812 ; of which the cases in G. O. of Jany. 2, 1810, Jany. 10, 1811, and March 18, 1811, were convictions. In a later case of this nature, published in G. O. 25, Dept. of Cal., 1871, the accused was acquitted. And see a recent marked case in G. C. M. O. 8, (H. A.,) 1890. "As of defrauding soldiers of portions of their bounty money by false representa- tions and pretences — G. C. M. O. 232, 519, of 1865 : By paying a debt to a soldier by palming off property upon him of much less value, by means of false representations as to its v^prth — G. O. 234 of 1863 : By exacting from soldiers excessive usurious interest, (25 per cent.,) on loans made to them — G. O. of Dec. 24, 1811 : By exacting from soldiers double the amount, at the next pay day, for sums of money previously loaned — G. 6. 4, Dept. of the Gulf, 1866; Digest, 64: By ordering a sergeant to report him (the accused) present when absent — G. O. 94 of 1863 : By directing a soldier to make a false statement to another officer in regard to action of the accused — G. C. M. O. 5 of 1872 : By employing soldiers to perform work for his private benefit — G. O. 72 of 1836 : By causing soldiers to furnish their labor to a civilian in payment of a debt due the latter by the accused — G. O. 71 of 1822 ; By Inducing soldiers illegally to sieze private property for his 'personal use, in time of war — G. O. 249 of 1863 : By conspiring with soldiers to effect sales of public property to civilians, for personal gain and to the fraud of the United States— G. C. M. O. 58 of 1868: By causing a non-commissioned officer to make a false guard report, in order to relieve him (the officer) from an impu- tation of neglect of duty — G. C. M. O. 38 of 1880. "As drawing forage for two private horses when not entitled to draw for any G. O. 22, Dept. of the Northviest, 1865: Drawing rations for his wife and daughters as laundresses— G. O. 183 of 1863 : Falsely entering on muster-rolls the names of men as enlisted by him, and causing them to be personated by otl^er persons at the muster- in — G. O. 184 of 1863: As A. C. S., fraudulently overcharging officers and soldiers for commissary stores with Intent to misappropriate the accruing profits G. C. M. O. 2 of 1871: As Same, using false scales in issuing stores — G. O. 2, Dept. of the Pacific. 1864: As Same, giving to a company commander, for the amount of the company savings, a check on a bank where he had no funds — G. C. M. O. 61 of 1869 : Obtaining money from civilians, and board at a hotel, by giving such checks — G. C. M O 104 of 1875; Do. 43 of 1870; G. O. 16, Div. of Pacific, 1866: Obtaining sums of money from citizens by transferring to them forged paymasters' checks on the Ast. Treasurer G. O. 18, Dept. of the East, 1865 : Obtaining money from a banker by falsely representing MILITABTi lAW AND PRECEDENTS. 717 1113 Drunkenness of a gross character committed in Oie presence of mili- 1114 tary inferiors, or characterized by some peculiarly shameful conduct or disgraceful exhibition of himself by the accused." that it waa for the use of the regiment — Hough, 540: Falsely denying his signature to a promissory note payable to a eitizen — James, 360 : Refusing to approve a citizen's Touchers for reward for arrest of deserters on the false ground ' that they could not be paid for some time, and thereupon buying them up for much less than their face and collecting and appropriating the lull amounts — G. C. M. O. 71 of 1867 : Ex- torting money from citizens — G. O. 16, Mpuntain Dept., 1862 : Selling to an officer a public horse by falsely representing it to be private property — G. C. M. O. 493 of 1865 ; Do. 100 of 1867 : Attempting to sell to another officer a public horse — G. C. M. O. 6 of 1865 ; Do. 46 of 1870 : Attempting to pass the guards vrith a forged pass and by an assumed nanie — G. O. 5, Army of the Potomac, 1863: Giving a false name to an officer of the provost guard, on being arrested — G. O. 3, Army of the Potomac, 1862 : Falsely availing himself of a leave of absence intended for another officer — G. O. 234 of 1863 : Altering, so as to extend, a leave of absence — G. O. 49, Dept. of the Cumber- land, 1809 ; Denying that he was an officer of the army, when absent from his regiment on an expired leave — G. O. 249 of 1863 : By false representations retaining possession of certain personal effects of another officer, and pledging the same as security for the payment of « bill for board — G. C. M. O. 20 of 1868 : Cheating at cards with other officers — G. O. 11 of 1849 ; Do. 6 of 1856 : (And see case In James, p. 744, of a violation of this Article in conspiri&g to involve a young lord In deep play, and winning from him upwards of £1500 :) Cheating a soldier of three dollars at cards — G. O. 25, Dept. of the South, 1862 : " Displaying a want of veracity " — James, 397 : Becoming, as quartermaster, corruptly interested in public contracts, and receiving large sums as part of the proceeds — G. C. M. O. 57 of 1870 : Paying a contractor the face of a false voucher for an amount greater than was due, and receiving bacic from him the balance — G. C. M. O. 31 of 1869 : Taking money from substitute agents for approving their appointment — G. C. M. O. 303 of 1865 : Talking bribes from, and aiding and acting In complicity with, substitute brolsers — G. C. M. O. 565 of 1865 : Furnishing substitutes for drafted men for a compensation — G. O. 17, Dept. of the East, 1864; Do. 10, Dept. of the Susquehanna, 1864 : Xalsing bribes to allow civilians to pass the piclcet line — G. O. 48, Dept. of the Gulf, 1863 : The same, to allow them to pass goods within the line — G. O. 9, Dept. of "Va., 1863: Receiving money in consideration for the appointment of a person as lieutenant in the regiment in which the accused was colonel — G. O. 33, Dept. of No. Ca., 1865 : Offering money and promotion to two in- ferior officers in consideration of their not pressing charges against the accused — Id : Maljing a corrupt proposition to a quartermaster to induce him to permit the accused to lieep and use a public horse as his private property — G. C. M. O. 54 of 1873 : Secretly proposing to a civilian to Join in a transaction for making a profit upon arms to be furnished by the U. S. to the States — G. O. 5 of 1856 : Paying money in con- sideration of services rendered in procuring the appointment of his son to the Naval Academy G. 0. 156, Navy Dept., 1870: Corruptly soliciting and receiving money for procuring a contract for transportation of troops to be awarded to a certain steamship company G. C. M. O. 9 of 1879. And see other more recent cases In G. C. M. O. 27, 28, of 1892; Do. 7, Dept. of the Columbia, 1890; Do. 42, Dept. of the East, 1891; People' 1/. Porter, 3 N. Y. S., 35, (50 Hun., 161). " See cases of convictions in the following Orders :— G. O. 72 of 1836 ; Do. 6 of 1840 ; Do 1 of 1847 ; Do. 35, 52, 156, 187, 199, 261, 380, of 1863 ; Do. 36, 64, 72, of 1864 ; G C M O 10() 109, 114, of 1864 ; Do. 240, 472, 599, of 1865 ; Do. 15 of 1866 ; Do. 3, 5, G. .C. M. O. 21, Dept. of Cal., 1892. " G. O. 54, Dept. of the East, 1867. >G. C. M. O. 50, Dept. of the Platte, 1874; Do. 31, Id., 1875; Do. 11, Dept. of Texas, 1876. * G. C. M. O. 52 of 1892. »G. C. M. O. 224 of 1865. •G. C. M. O. 36, Dept. of the Mo., 1870; Do. 7, Dept. of the Platte, 1873; Do. 15, Id., 1894 ; Do. 45, Dept. of Texas, 1875. ' G. C. M. O. 36 of 1866. » G. C. M. O. 85 of 1892. • G. C. M. O. 54 of 1890. >» G. C. M. O. 9, Dept. of the Platte, 1874 ; Do. 28, Dept. of Arizona, 1880. " G. C. M. O. 7, Dept. of Cal., 1894. " 6. C. M. O. 57, Dept. of the Platte, 1891. " G. C. M. O. 16 of 1889. " G. C. M. O. 48 of 1893. "G. C. M. O. 79, Dept. of Texas, 1873; Do. 16, 42, Id., 1874; Do. 14, Dept. of the Platte, 1872 ; Do. 35, Id., 1875 ; Do. 25, Dept. of the Gulf, 1875. >«G. O. 16, Mountain Dept., 1862. » G. O. 36, Dept. of the Platte, 1868 ; Do. 37, Id., 1871. The act, however, should be such as to affect military discipline. The mere nonpayment of a debt to a citizen Is not sufficient. G. C. M. O. 36 of 1S83. As to when indebtedness by a soldier Is chargeable as an offence — see G. C. M. O. 14, Dept. of Arizona, 1888. K G. C. M. O. 50, Dept. of the Platte, 1872. » G. C. M. O. 74 of 1889 ; Do. 60, Dept. of the Mo., 1860. » G. O. 63, Dept. of Dakota, 1872 ; Do. 30, Dept. of the Gulf, 1875 ; G. C. M. O. 32, Id., 1876 ; Do. 65, Dept. of the Mo., 1869 ; Do. 8, Dept. of the Platte, 1876 ; Do. 30, Id., 1875 ; Do. 48, Id., 1873 ; Do. 6, 7, Id., 1872 ; G. O. 36, Id., 1871. "An attempt to commit suicide Is charged as an cftence under this Article In G. C. M. O. 16, Dept. of the Columbia, 1892. And see Do. 23, Id. MILITAEY LAW AND PRBCEDBlirTS. 733 And, now, fraudulent enlistment, as provided in the Act of July 27, 1S92." PR0CEDT7B.E— Charge. This particular is sufficiently comprised under the general subject of the Charge as considered in Chapter X It may be repeated that, while the usual and approved form of the charge is, (as given in the Appendix,) — "Conduct to the prejudice of good order and military discipline," this form is not an essential ; and that, however the charge may be worded, if charge and specification taken together make out a substantial averment of an act which, while not representing an offence punishable under a specific Article, at the same time clearly directly impairs or injuriously affects good order 1139 and military discipline, the whole will constitute a sufficient pleading of a crime, neglect or disorder under Art. 62." Finding. It has already been sufficiently indicated in the Chapter on the Finding, that, while the established usage of the service has fully sanctioned the finding of guilty of " conduct to the prejudice of good order and military discipline " under a charge of a violation of any Article making puaishable a specific offence, the reverse, viz. the finding of a specific offence under a general charge framed upon Art. 62, would obviously be wholly unauthorized and invalid. Punishment. The discretionary power of punishment conferred upon the court by this Article is peculiarly appropriate in view of the manifold forms and shades of offences constantly brought to trial under it." The maximum punishments, however, for certain of the offenceis here chargeable, (in cases of enlisted men, ) have been fixed by the President in G. O. 21 of 1891, amended by G. O. 16 of 1895, under the authority of the Act of Sept. 27, 1890. In imposing a term of imprisonment or fine, upon the conviction of a " crime," the court, as an aid to the exercise of a due discretion, may well take into consideration the measure of the penalty of this nature Imposable for a like offence under the Statutes of the United States or the local law. As recog- nized, however, by the Supreme Court in Ex parte Mason,™ a court-martial may in a proper case considerably exceed this measure, (keeping of course within the legal maximum, if any,) while adding, if deemed expedient, other pen- alties — such as discharge, dismissal and forfeiture of pay — of a military diar- acter. It may be remarked in conclusion that where a court-martial, under a charge of a violation of a specific Article prescribing a mandatory penalty, has found the accused guilty of " conduct to the prejudice of good order and military discipline " only, it will, In general, in Its sentence, naturally and 1140 properly affix a less severe punishment than that designated in the specific Article. This, however, is, of course, not legally obligatory. FRATJDtTLENT ENLISTMENT. By the recent enactment of July 27, 1892 ch. 272, sec. 3, It was provided — " That fraudulent enlistment, and the receipt of any pay or allowance thereunder, is hereby declared a military offence, and made punishaUe by court-martial under the 62d Article of War." Nature of the offence. Prior to this legislation, fraudulent enlistment was not. In the opinion of the author, triable by court-martial, for the reason that the fraudulent representations, &c., In which the offence consisted must have been preliminary and made as an Inducement to the enlistment, and so be- fore it was consummated, and while therefore the individual was still a "= See FBADDnLENT Enlistment, pott. !» Digest, 72 ; G. O. 23, Dept. of the Lakes, 1869. « The discretion " must be a reasonable one, consistent with usage and custom." Samuel, 689. "The punishment is indeterminate, because, in most cases, the guilt may be much aggravated or diminished by attendant circumstances." O'Brien, 165. » 105 D. S., 700. And compare King v. Suddls, 1 East, 306. 734 MILITARY LAW AND PEECEDENTS. civilian and not constitutionally amenable to such trial.'' A statute assum- ing to make mere fraudulent enlistment so triable would not remove the ob- jection, since a statute cannot do away with a constitutional Incapacity or confer jurisdiction where the constitution denies It. But the receipt of " pay " or an " allowance " under an enlistment knowingly fraudulent is an offence, because the pay, &c., is not received till the enlistment has been completed and the party is actually in the military service. It is thus the receipt of pay or of an allowance, (as an allowance of clothing or rations, for it is not con- sidered that "allowance" means necessarily pecuniary allowance,) which is the gist of the legal offence and which in fact constitutes it. A person who has procured himself to be enlisted by means of false representations as to his status is not, before having received pay or an allowance, or until he re- ceives one or the other, amenable to military trial. And the Act would be more correctly worded thus — The receipt of any pay or allowance under a fraudulent enlistment is hereby declared, &o. Definition of Fraudulent Enlistment. It has been decided under the Act by the Secretary of War that the court-martial before which this offence is brought to trial shall be a general court-martial," and it is enjoined that the enactment " be fully explained to every applicant presenting himself for 1141 enlistment."" And the offence is oflacially defined as follows — "A fraudu- lent enlistment is an enlistment procured by means of a wilful misrepre- sentation in regard to a qualification or disqualification for enlistment, or by an intentional concealment of a disqualification, which has had the effect of causing the enlistment of a man not qualified to be a soldier, and who, but for such false representation or concealment, would have been rejected." * Instances of the offence. A considerable number of cases of alleged fraudu- lent enlistment have already been brought to trial, and generally to convic- tion, under the statute of 1892. The various acts set forth In the specifiba- tions as constituting the offence have been as follows : — Concealment by the party of the fact of his having been discharged by sentence;™ Concealment of the fact that he had been discharged with " bad " character or " without a character," "" Concealment of the fact that he had been discharged " without honor ; "" Conceaiment of the fact of discharge for disability ;" Concealment of the fact of dischargie as a rejected recruit ; " Concealment of the fact of dis- charge for previous fraudulent enlistment;" Concealment of the fact of dis- charge by purchase within less than one year prior to the enlistment;" Con- cealment of an existing physical disability ; " Concealment by the party of the fact that he was a deserter;" Concealment of the fact that he had bfeien confined under sentence in the Military Prison ;" Concealment of the fact » See DIGEST, 71-2 ; G. C. M. O. 9, Dept. of Texas, 1874. " Clrc. No. 13, (H. A.,) 1892. » Clrc. No. 11, (H. A.,) 1892. And see Do. No. 2, Id., 1893. " Clrc. No. 13, (H. A.,) 1S92. » G. C. M. O. 108 of 1892 ; Do. 10, 14, 25, 26, 31, 32, 37, 47, 55, 57, 62, 66, 76, 87, 88, 90, 91, 95, of 1893 ; Do. 39, 49, of 1894. » G. C. M. O. 5, 60, 113, of 1893 ; Do. 9, 32, 44, of 1894. " G. C. M. O. 81 of 1893. =»G. C. M. O. 109 of 1892; Do. 42, 55, 115, of 1893; Do. 35 of 1894. " 6. C. M. O. 81 of 1893 ; Do. 14 of 1894. »» G. C. M. O. 61, 71, 87, of 1893 ; Do. 34, 44, 49, of 1894 » G. C. M. O. 83 of 1893. And see G. O. 81 of 1890. " G. C. M. O. 109 of 1892 ; Do; 80, 92, 96, of 1893. " G. C. M. O. 50, 100, of 1893 ; Do. 51 of 1894 ; Do. 23, Id., (Case of concealment of a desertion from the navy.) » G. C. M. 0. 102 of 1892. Do. 77, 117, of 1S93 ; Do. 3, 28. of 1894. MILITARY LAW AND PKECEDENTS. 735 that he had been convicted of felony by a civil court and sentenced to the 1142 penitentiary ;*° Falsely representing that he was fully twenty-one years of age;" Falsely representing that he was a single man;" Inducing his acceptance, though a minor, by presenting a false written consent purporting to be signed by his father." The concealment of fact or false representation is not unfrequently accompanied by the giving of a false name. Charge. The charge for this offence may be expressed as — " Conduct to the prejudice of good order and military discipline," or " Violation of the 62d Article," or, preferably, "Fraudulent Enlistment, in violation of the 62d Article," (or "to the prejudice of good order and military discipline.") Fraudulent enlistment has sometimes been charged as consisting in an en- listing " without a regular discharge " from a previous enlistment," the ofCence expressly made punishable by Art. 50. But this offence, as has heretofore been pointed out," is a form of desertion, and is erroneously charged as " fraudulent enlistment," or otherwise than as " desertion." " PROOF. The alleged false representations, concealments, &c., of the party, on his applying for enlistment, may he proved by fhe recruiting officer or non- commissioned officer to whom the statements were made, or other inducements were addressed, or by a soldier or other person present at the time. The falsity or fraud will be established by the official record of the discharge of the accused, or the record of his trial and sentence, or by the records of the Military Prison, by medical testimony, by the testimony of persons cognizant of his age or of the fact that he is a married man, &c. The receipt of pay, or of an allowance pecuniary or other, })eing the gravamen of the offence, must be clearly shown by the testimony of the recruiting officer, paymaster, &c. Proof .of Identity will generally also be required, and this, if denied, must also be established beyond a reasonable doubt by the evidence of persons who know or recognize the accused. 1143 PUNISHMENT. The maximum punishment for the ofCence of fraud- ulent enlistment has, by the direction of the President, under the author- ity of the Act of September 27, 1890, been fixed in G. O. 30 of April 8, 1898, as follows — " When a soldier has procured himself to be enlisted by false repre- sentation, or by concealment of a fact, in regard to a prior enlistment or dis- charge, or in regard to his conviction of a civil or military crime, the limit of punishment shall be dishonorable discharge, with forfeiture of all pay and allowances, and confinement at hard labor for one year. In other cases of fraudulent enlistment the limit shall be dishonorable discharge, with forfeiture of all pay and allowances, and confinement at hard labor for six months." With the exception of Art. 99, Abticles 63 to 121 inclusive have all been fully considered under appropriate heads In previous Chapters. XXVIIL THE NINETY-NINTH ARTICLE AND SECTIONS 1228, 1229, 1230, 1245, AND 1252 REV. STS. [Dismissal and Restoration of Officers.] "Art. 99. No officer shall be discharged or dismissed from the service, except by order of the President, or by sentence of a general court-martial; and in time " G. C. M, O. 60 of 1893. " G. C. M. O. 104 of 1892 ; Do. 73, 110, 128, of 1893. " G. C. M. O. 30, 39, 71, 78, 78, 128, of 1893 ; Do. 40 of 1894. " G. C. M. O. 109 of 1893. " See cases in G. C. M. O. 11, 73, 77, lOB, of 1892. "Ante — Fiftieth Article, p. 652. " Some countenance to the contrary view has erroneously and probably Inadvertently been given by the language of G. 0. 30 of 1893, fixing the maximnm punishment for fraudulent enlistment. 736 MILITAKY LAW AND PRECEDENTS. of peace no officer shall be dismissed, except in pursuance of the sentence of a court-martial, or in mitigation thereof, " Sec. 1228. No officer of the army who has been or may be dismissed from the service by the sentence of a general court-martial, formally approved by the proper reviewing authority, shall ever be restored to the military service, except by a reappointment confirm,ed by the Senate. " Sec. 1229. The President is authorized to drop from the rolls of the Army for desertion any officer who is absent from duty three months without leave; and no officer so dropped shall be eligible for reappointment. And no officer in the military or naval service shall in time of peace be distnissed from service, except upon and in pursuance of the semtence of a court-martial to that effect, or in commutation thereof. 1144 " Sec. 1230. When any officer, dismissed by order of the President, makes in writing, an application for trial, setting forth, under 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 within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. " Sec. 1245. When any officer has become incapable of performing the duties of his office, he shall be either retired from active service, or wholly retired from the service, by the President, as hereinafter provided. " Sec. 1252. When the board finds that an officer is incapacitated for active service, and that his incapacity is not the result of any incident of service, and its decision is approved by the President, the officer shall be retired from, active service, or wholly retire from the service, as the President may determine. The names of officers wholly retired from the service shall be omitted from the Army Register." Ninety-ninth Akticle. HISTORY. This Article Is made up of two separate enactments. Its first clause consists of a provision taken from Article 11 of 1806, and which had previously appeared in the Articles of 1776 and 1786 ; the only material change made in the phraseology by the later statute being that, in view of the adoption meanwhile of the Constitution, the term " by order of the President " was substituted for the previous form, " by order of Congress." The second clause of the Article is the provision, (so far as It relates to the Army,) of the Act of July 13, 1866, c. 176, s. 5, which was expressed as fol- lows : — " No officer in the military or naval service shall, in time of peace," be dismissed from service except upon and in pursuance of the sentence of 1145 a court^nartial to that effect, or in commutation thereof." This provision is repeated also in Sec. 1229, Rev. Sts., above cited, and is there more correct than as expressed in the Article, the word " commutation," not " miti- gation," being the proper legal term to employ in such connection. THE TWO MODES OF DISMISSAL DISTINOTTISHED. The two modes of discharge or dismissal of officers specified in the Article are quite distinct in " It was held by the Supreme Court in McElrath v. V. S., 102 V, S., 426, that as the recent war was not fully terminated nor peace established prior to Aug. 20, 1866. this statute did not affect the legality of a summary dismissal ordered by the President be- tween the date of the Act and Aug. 20 following. MILITARY LAW AND PRECEDENTS. 737 their nature. A dismissal imposed by sentence of court-martial, (or in com- mutation thereof,) is a punishment — a penalty incurred by law upon a convic- tion of a criminal ofEence. A dismissal or discharge ordered by the President in the first instance, on the contrary, is not a punishment but a removal from office. "A penalty," says Attorney General Gushing," " is the result of a legal process. Dismissal from office belongs to a different class of administrative or political considerations, resting In the mere executive discretion of the President." Any dismissal, indeed, where resorted to because of ofEences or misconduct of the officer, has the moral effect of punishment, in that it not only deprives the party of that which is valuable to him but affixes a reproach upon his'repu- tation. The latter, however, is by no means an essential incident of an execu- tive-dismissal," since — as was frequently done toward the end of the late war — an officer may be dismissed because his services are no longer required, by reason of a cessation of hostilities or other cause inducing a reduction of the military force. The separation from the service in the latter class of cases is indeed ordinarily designated " discharge " or " muster out," while the term dismissal is rather ret^erved for those instances which involve disgrace. But whatever be the name applied to it, or the grounds of or circumstances attending it, the exercise of the executive will is, in all the cases, the same act in law, the authority exerted being simply that of a divestiture of office. That the summary dismissal is wholly distinct from and independent of the other species, inz. dismissal as a punishment by sentence, is illustrated by the fact that the President, like the British sovereign, has repeatedly exercised the authority to dismiss by order, not only after a court-martial, having 1146 passed upon the acts of the party and tried him for his offences, has imposed upon him a minor punishment, but after such a court has acquitted him altogether.™ And so, after a court of inquiry," or an examining board " has rendered a favorable report upon his case. And that such exercise of power is entirely legal has been repeatedly affirmed by the aifthorities.® DISMISSAL BY SENTENCE. This subject has already been fully consid- ered in Chapter XX, treating of Sentence and Punishment. DISMISSAL BY OBDEB — As heretofore resorted to. The summary dis- missal or discharge of officers of the army and navy has been from the earliest " 7 Oplns. At. Gen., 251. * See Samuel, 627-8 ; Hough, (P.) 425, 428. *■ " The royal prerogative of summary dismissal is In nowise controlled or affected by the circumstance of an officer having been previously acquitted by a court-martial or having received only a lenient senteiice for the conduct In question." Prendergast, 238. And see Id., 209, 236. Among the most marked Instances in the British service were those of Admiral H«rbert and Rear Admiral Munden, (1 McArthur, 109, 111 ; 2 Brod. & Bing., 151,) and General Fowke, (4 Campbell's Admirals, 84.) In the first two cases the officers were dismissed after having been acquitted by military tribunals ; in the latter case the action was taken after a sentence of suspension for one year. And see instances reported in James, pp. 72, 231, 290, 334, 345, 492, 498. In our army, eases of summary dismissal after acquittals are published In G. O. 327, 385, of 1863; G. C. M. O. 33, 38, 109, 184, 278, of 1864; Do. 129 of 1865;— after sentences imposing minor punishments, in G. O. 330, 377, of 1863 ; G. C. M. O. 42, 144, 156, 159, 280, 293, of 1864 ; Do. 70, 299, of 1865. "4 Opins. At. Gen., 1. " 13 Opins. At. Gen., 3. ^See 44 Oplns. At. Gen., 1, 611; 12 Id., 421; 1 McArthur, 109; Prendergast, 236- 239 ; Clode, 1 M. F., 168. 440593 0-42-47 738 MILITARY LAW AND PRECEDENTS. period, a prerogative of the British sovereign. "Commissions In the army," says Prendergast, "being held at the sole will and pleasure of the Crown, a royal mandate or order is at any time sufficient for the summary discharge of an officer from the service, without the formality of a court-martial or a court of inquiry, or the assignment of any reason whatsoever." " In this 1147 country, the power, having been employed by Congress antecedently to the adoption of the Constitution," was subsequently exercised by its successor in the executive department of the government, the President, from the period of the debate of 1789 on the subject, in the House of Representatives, down to the passage of the Act of 1866, already cited as the original of the second clause of Art. 99." Prior to the late war, indeed, summary dismissals or discharges of officers of the army by the order of the President, though from time to time resorted to, were not frequent." But during the civil war — especially between July 1861 and October 1865 — these dismissals and discharges were numerous; about one hundred and fifty, of officers of all grades," and for varied causes," being "Page 235. The same author adds, (p. 239,) — "A military officer cannot by law hold his commission or any military employment, free from his liability to summary dismissal by the Crown." In Lieut. Poe's case it was held by the Court of King's Bench, " that the King had the exclusive uncontrolled prerogative of dismissing any offleer or soldier whom he pleased, with or without a court-martial." Simmons § 750, note. So — " an officer in the army or navy ot the TTnited States does not hold his office by contract, but at the will of the sovereign power." Cremshaw v. V. S., 134 V. S., 99. '^ See instances of the exercise ot the power by Congress, in 1 Jour. Cong., 357 ; 2 Id., 204, (a dismissal of twelve lieutenants ot the navy ;) 3 Id., 421. In the last case, that of Maj. Gen. Charles Lee, the B^solution follows the form of words em- ployed in the British service, the officer being informed that " Congress has no further occasion for his services in the Army of the United States." See, further, 2 Jour. Cong., 45, where Congress directs General Washington to dismiss such of " the French gentlemen in the army " as he may find on Investigation to be " unworthy of com- missions or unable to render service In the military line." » See cases in G. O. 35 of 1821 ; Do. 23 of 1831 ; Do. 97 of 1833 ; Do. 37 of 1836 ; Do. 18 of 1838; Do. 51 of 1840; Do. 34 of 1841; Do. 14 of 1845; Do. 4, 18, of 1853; Do. 6 of 1856. And see Gen. Gratiot's case, (of Dec. 4, 1838,) In 5 Opins. At. Gen., 234 ; also remarlts of Nott, J., in Street v. V. 8., 24 Ct. CI., 247-8. "Atty. Gen. Clifford, writing in 1847, observes, (4 Opins., 612,) of the power under consideration, that it " has the sanction of Immemorial usage in England and of more than half a century in the United States." The power of course pertains to the President alone; a military commander cannot exercise It. An order of summary dismissal issued In the name or by the direction of the Secretary of War is presumed to be the order of the President. See 12 Opins. At. Gen., 421 ; McElrath v. U. S., 12 Ct. CI., 202 ; Digest, 370, 690. "Two being cases of general officers— Twiggs and Spears. See G. 0. 5 of 1861; G. C. M. O. 267 of 1864. In the case of Twiggs the ground of dismissal Is recited to be — " for his treachery to the flag of his country In having surrendered, on the 18th of February, 1861, on the demand of the authorities of Texas, the military posts and other property of the United States In his Department and under his charge." "Of these grounds, so far as recited — (In some cases the causes are not specified)— the following, (taken both from General and Special Orders,) are among the principal: — Disloyalty, tender of resignation in the face of the enemy, tender of resignation under grave charges or on Improper grounds, desertion, absence without leave, disobedience of orders, neglect of duty, cowardice, disgraceful surrender and other misbehavior before the enemy, drunkenness, sending a challenge, embezzlement, twice drawing pay, fraudu- lent transactions, lying, dishonorable or unbecoming conduct, unauthorized publication of an official report, procuring or suffering one's self to be taken prisoner, pretending to be wounded, feigning sickness, self-caused dlsablUty, irregular and Improper conduct as member of a court-martial, Incompetency, inefficiency, being " troublesome," being "■an alarmist," being in Washington without proper authority, violation of the sovereignty of a friendly State by arresting a deserter in Canada and bringing him away within the United States. MILITAKY LAW AND PRECEDENTS. 739 1148 published In the General Orders,™ and upwards of fifteen hundred In the Special Orders, of the War Department." In the great majority of cases, no trial or Investigation by a military court had preceded the action taken. In a considerable number, however, there had been a previous trial, and either a dismissal had been imposed by the sentence, which, because of the disapproval of the convening authority, or of some legal defect in the proceedings, had 114S been rendered inoperative;"* or— as already noticed— an acquittal or a minor penalty had been adjudged, when, in the opinion of the Executive, an absolute separation from the service should have been the result. OPEEATION or AN OBDEB OF DISMISSAL — When it takes effect. An order of dismissal can legally take effect only upon notice. In other words, till the party is personally and officially notified that he has been dismissed, he is not dismissed in fact or in law. Where the summary dismissal is an- nounced in a General Order, which, when received at his post or station, is pub- licly promulgated to the command, the presumption will in general be that the officer became informed of the dismissal on the day of such promulgation — a presumption subject to be rebutted by proof that he was at the time absent by authority and thus could not have been notified." In general, however, an officer summarily dismissed is regularly notified of his dismissal by having an official copy of the order of dismissal delivered or transmitted to him personally ; the dismissal taking effect on the day of the delivery or receipt. Where Indeed such a delivery or receipt is rendered impracticable by some exigency of war or the service, a considerable period may elapse before the officer can be notified and the dismissal become operative. Thus if, at the date of the dismissal, or before information of the same has reached him, he has been taken prisoner, and is in the hands of the enemy, the dismissal cannot, as a general rule, take effect until, having reported, upon exchange, to his proper commander, or having otherwise been brought within the scope of the authority of the government, he becomes officially advised of the action taken : till then he is not divested of his office or its emoluments. Extent of its effect. An executive order of dismissal, being simply a divesti- ture of office, cannot per se work a disability, or deprive the officer of any right •« See G. O. 5, 45, 47, 63, 66, 87, 93, 102, 103, 110, of 1861 ; Do. 15, 33, 35, 42, 54, 66, 96, 106, 115, 117, 120, 125, 131, 136, 137, 144, 156, 161, 183, 195, 196, 197, 199, 209, 211, 215, 2i7, of 1862 ; Do. 4, 11, 12, 15, 19, 23, 27, 31, 32, 39, 44, 59, 60, 68, 75, 89, 93, 94, 115, 119, 120, 186, ISi), 183, 187, 189, 201, 209, 210, 229, 234, 261, 263, 264, 270, 299, 327, 330, 356, 377, of 1863; Do. 117, 304, of 1864; G. C. M. O. 10, 11, 28, 33, 38, 42, 43, 53, 109, 123, 144, 156, 159, 184, 267, 278, 280, 293, of 1864 ; Do. 61, 70, 71, 89, 123, 129, 261, 299, 349, 566, of 1865. In a few of the cases the dismissal was originally ordered by a military commander, but subsequently ratified and adopted by the President ; the original action having of course no legal effect, but amounting to a recommendation merely. " As these orders are very numerous, and not readily accessible to students. It is not worth while to cite them. Among the discharges summarily ordered therein a consid- erable proportion are of volunteer officers adversely reported upon by examining boards, officers failing to appear when summoned before such boards or before Investigating commissions, supernumerary officers, &c. In some Instances the dismissal took the form of a summary muster-out. Here may be noted the mention, in the Rebellion Record, vol. V, p. 28, of the dis- missal, June, 1862, of a surgeon of the army, for neglect of the sick and wounded, and. Id., p. 66, August, 1862, of twelve officers for having advised their regimental com- mander to surrender his post. "a See G. 0. 32, 68, 75, 93, 94, 115, 180, 183. 187, 189, 201, 209, 210, 229, 234, 261, 264, 270, 299, of 1868 ; G. C. M. O. 10, 11, 28, 38, 43, 53, 267, of 1864 ; Do. 71, 89, 261, of 1865. " Digest, 370, 545. And see, similarly, as to the taking effect of a sentence of dis- missal, Chapter XX — " Dismissal," 740 MILITARY LAW AND PRECEDENTS. other aian his right to the office as such. Thus such a dismissal, (except where Congress otherwise specifically enacts,"") Involves no legal disaUUty to re-enter the military service either by commission or by enlistment, or to be employed In any branch of the public service. Nor can it affect vested rights to 1150 pay, &c. Thus it has been held by the Judge Advocate General," (apply- ing to the case an opinion of Atty. Gen. Mason,") that an order by which an officer was dismissed with forfeiture of pay due, was, as to such forfeiture, Illegal and unauthorized ; the officer having a vested right In all the emoluments accruing to the office, so long as he holds it and up to the day on which he ceases to hold it, which cannot be divested except by the sentence of a court- martial imposing such a forfeiture as a punishment. And as an attempt to do indirectly what may not be done directly, can have no legal sanction. It was further held by the same authority that a dating back of an order of dismissal to a day prior to that on which it was really Issued, or a declaration In an order that the same was to take effect as of a prior day, could not operate to affect the right of the officer to pay for the period between such day and that on which the order was In fact made or he was duly notified of it. PROHIBITION OF EXECUTIVE DISMISSALS IN TIME OF PEACE. — ITS CONSTITUTIONALITY. The provision of the Act of July 13, 1866, em- braced In Sec. 1229, Rev. Sts., and in the second clause of Art. 99, is the first instance, since the organization of the government under the Constitution, in which Congress has expressly prohibited the exercise by the President of the power of removal from office. Upon a provision divesting the Executive of a function so long and largely exercised, the question naturally arises whether the same is constitutional. In considering this question, the nature and quality of the power itself, as asserted and maintained, will be clearly illus- trated. The debate of 1789. The subject is relieved of difficulty by the almost uni- form concurrence of the authorities. All point to the debate in the House of Representatives of the first Congress, of May and June 1789, as having practically settled the question both of the existence and the extent of the power." This was a debate upon certain proposed Acts, " to establish the State, War and Treasury Departments," In each of which was Introduced a provision to the effect that whenever the Head of the Department should 1151 be " removed from office by the President," the " Chief Clerk " in the two former cases, and the "Assistant " in the latter case, should have the charge and custody of the records, &c. The adoption of this provision was strenuously contested; a main objection being that. Inasmuch as the heads of the departments were, according to the Constitution, to be appointed by the President, by and with the advice and consent of the Senate, the concurrence of that body — the Constitution- being silent on the point — should properly also be deemed essential to their removal; and that therefore the power of removal could not legally be vested in the President alone. But after a protracted debate In which Mr. Madison was conspicuous in support of the Acts, as framed and passed, it was finally de- termined " In favor of declaring the power of removal to be in the President," and the several measures, having received the approval of President Wash- •" As it has in Sec. 1229, Eev. Sts., hereafter considered. "DiGBST, 369. «4 Opins., 447. « See 4 Elliot's Debates, 350-404, 1 Gales* Annals, 372-383, 455-591 ; Benton's De- bates, 86-90, 102-108 ; 2 Marshall's Washington, 162. MILITARY LAW AND PRECEDENTS. 741 Ington, were duly enacted, vie. on July 27, August 7, and September, 2, 1789, respectively." The argument of the affirmative of the debate was that, while the Constitu- tion contained no express grant of the function of removal from office, or specific provision in regard to the matter, it vested in the President the whole executive power of the Government, and that the authority to remove was in- trinsically and necessarily a part of the executive power, without which It could not be fully or efficiently exercised. "I conceive," said Mr. Madison, " that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling," (as by removal from office if deemed expedient,) "those who execute the laws."" Fisher Ames, in combating the notion that it would be dangerous to determine that the power was vested in the President, observed : — " It vrill be found that the nature of the business " (of removal) " requires it to be conducted by the head of the Executive; and I believe it will be found even then that more injury will arise from not remov- ing improper officers than from displacing good ones."" Mr. Boudinot 1152 expressed himself as " certain from the nature of things, that it was not the intention of the Constitution to prevent the President from removing an officer who was found to be wholly unfit or Incapable of doing his duty." " Mr. Madison also asserted the view that — " inasmuch as the power of removal is of an executive nature, and not affected by any Constitutional exception, it Is beyond the reach of the legislative body." " Subsequent rulings. In the course of his remarks Mr. Madison further de- clared — "The decision that is at this time made will become the permanent exposition of the Constitution."" In point of fact the result of this debate has ever since been treated by writers on the subject as a contemporaneous inter- pretation of the Constitution, not merely as to civil officers but equally as to mili- tary and naval officers, the appointment of both classes being authorized by the same constitutional provision. This exposition has been since repeatedly illustrated by the authorities. Thus in the early case in Pennsylvania of Com- monwealth V. Bussler," Tilghman C. J. refers to the question under considera- tion in the following terms : — This question " engaged the attention of the Con- gress of the United States soon after the formation of the Federal Constitution, by which the President nominates and appoints by and with the advice and consent of the Senate. There was some plausibility in the argument that the tenure of officers should be at the pleasure of the President and Senate, because the President could not appoint without the consent of the Senate and the Con- stitution is silent as to the power of removal. Yet it was determined with general approbation that the pleasure of the President was the tenure of office. A main reason for this opinion was that the President, being vested with the supreme executive power, was bound to carry the laws into operation, which can only be done through the intervention of officers. If these officers are not removable at his pleasure, he Is relieved from that responsibility to which it is for the public good to hold him. An officer Is not appointed for his "X Stats, at Large, 28, 49, 65. " 1 Gales' Annals, 463. In U. S. ■». Guthrie, 17 Howard, 307, McLean, J. observes : — "In this discussion in Congress, Mr. Madison • • » considered the removal from office was an executive power, and that Congress could not restrict its exercise." " 1 Gales' Annals, 476. "Idem, 376. "Idem, 464. " Idem,. 495. "5 Sergt. & Eawle, 461, (1820), 742 MILITAKY LAW AND PRECEDENTS. own sake but for that of the public. If he misbehaves, the sooner he Is 1153 removed the better, because the country suffers every moment that he continues in office." In 1839, in the case of Ex parte Hennen," the Supreme Court of the United States, in remarking that — "the Constitution is silent with respect to the power of removal from office, where the tenure is not fixed," adds — generally — that, " in the absence of all constitutional provision or statutorj^ regulation. It would seem to be a sound and necessary rule, to consider the power of removal as incident to the power of appointment." The court then goes on to observe that " it was very early adopted as the practical construction of the Constitu- tiou," and has since " become the settled and well understood construction " of that instrument, " that the power of removal was vested in the President 'aZone." In 1842, in an opinion " relating to a na/val officer who had been " stricken from the rolls " by the President, It was declared by Atty. Gen. Legar6 that— "it is now too late to dispute the settled construction of 1789. It," (the au- thority to remove,) "is, according to that construction, from the very nature of executive power, absolute in the President, subject only to his responsibility to the country, (his constituent,) for a breach of such a vast and solemn trust." And he continues, — "it is obvious that if necessity is a sufficient ground for such a concession in regard to officers in the civil service, the argument applies a multo fortiori to the military and naval departments.'' Referring to the action taken in the case before him, he concludes — " I have no doubt, there- fore, that the President had the constitutional power to do what he did." In 1847, in the case of Surgepn Du Barry of the army,'" Atty. Gen. Clifford, in commenting upon the debate of 1789, says : — " The power was finally affirmed to be in the President alone by a majority of both houses of Con- gress, after great deliberation and perhaps one of the ablest discussions in the history of the country. That decision was acquiesced in at the time, and has since received the sanction of every department of the government." He then goes on to show that there is no essential difference between the cases of mili- tary and those of civil officers, " much the largest class of whom," he 1154 observes, " are appointed under that clause of the Constitution from which the power of the President is derived to appoint the officers of the army and navy." • • * No such distinction," he continues, " was taken in the debate on either side. On the contrary, it was maintained that the power of removal extended to every officer in the government except the judiciary. The plain inference to be drawn from the whole discussion leads irresistibly to the conclusion that the construction adopted was intended to reach every officer ap- pointed by the President, except the judges of the federal courts." " He further instances the fact that — " the form of a military commission, in general use, ex- pressly describes the tenure of office and very clearly recc^nizes the doctrine of " 13 Peters, 258, 259. And see Blake v. U. S., 103 U. S., 23i; "4 Oping., 1. "4 Opins., 609-613. "And see 8 Opins., 231. " It Is noticed In this opinion, (p. 613,) that the only writer who holds that the power of executive dismissal is limited to cases of civil officers is De Hart [See his " Military Law," p. 228-243.] "It Is sufficient," says Mr. Clifford, " to remark that the weight of authority on this point is altogether against the views of this author. The construction of 1789 is too forcibly fixed in principle and has been too long established in practice to be shaken by any elementary writer however respectable, and the attempt to limit and qualify Its application to the Officers in the civil service has been wholly unsuccessful." So, Mr. Cashing, (8 Opins., 230,) refers to De Hart as not entitled to consideration upon the present subject. MKiITABY LAW AND PRECEDENTS. 743 1789 : ' This commission to continue in force during the pleasure of the President of the United States for the time heing.' " In a later opinion " Atty. Gen. Gushing expresses blntself as_^ follows : — " I am not aware of any ground of distinction in this respect, (the liability to be de- prived of their offices at the will of the President,) so far as regards the strict Question of law, between officers of the army and any other officers of the gov- ernment. As a general rule, with the exception of judicial officers only, they all hold their commissions by the same tenure in this respect. Reasons of a special nature may be deemed to exist why the rule should not be applied to military in the same way it Is to civil officers, but the legal applicability to both classes of officers is, it is conceived, the settled construction of the Constitution. It is no answer to this doctrine to say that officers of the army are subject to be deprived of their commissions by the decision of a court-martial. So are civil officers by impeachment The difference between the two cases is in the form and 1155 mode of trial, not in the principle, which leaves unimpaired, in both cases alike, the whole constitutional power of the President." And, with refer- ence to the case submitted to him, he adds : — " I am therefore of opinion that the President had the constitutional power to remoye Mr. Lansing," (a miUtary storekeeper, ) " from office." The same Atty. Gen., In a subsequent opinion,"" Incidentally observes, speak- ing of the President — " The power of removal, and the absolute right to exercise it according to his conscience, like the power of appointment, he holds by the Constitution." In a third opinion," Mr. Gushing reviews at length the subject under consid- eration, as illustrated by the authorities ; shows that, in regard to civil officers, the construction of the Constitution is " fiaoed, as all admit, past change;"" and, holding that no difference exists in the application of the power to military or naval officers, concludes — generally — that " the power to remove is inherent in the executive power to nominate, as conferred on the President by the Con- stitution." More recently — since the late war — Atty. Gen. Browning, In an opinion " in the case of an army officer who had been summarily dismissed by the President, notwithstanding an acquittal by court-martial, observes: — "The authority of the President to dismiss an officer from the military or naval service has been fully and elaborately considered by several Attorneys General. They have. In every Instance where the question arose, asserted that the authority was de- rived from the Constitution, and that Its exercise was sanctioned by the 1156 settled construction of that instrument and the uniform practice of the executive branch of the government." He then reviews some of the rulings of his predecessors, and, referring to the act of July 17, 1862, by which the President is " authorized and requested to dismiss and discharge " officers "Opins., 5-6. "7 Oplns., 251. » 8 Oplns., 230-232. " Mr. Cusblng here adds : — " I say past change, for the result of the earnest discus- sion of the question in the Twenty-third Congress, when the subject was revived for the very purpose, would appear to be decisive on that point." It was In this Congress that Mr. Clay offered, to a pending bill for restricting the executive patronage, an amend- ment declaring that. In cases of officers appointed by the President by and with the advice and consent of the Senate, the power of removal should be exercised only in concurrence with the Senate. This proposition was supported in an elaborate speech, but the amend- ment was subsequently withdrawn and was not renewed. See Gales and Seaton's Cong. Deb., vol. XI, part I, pp. 455, 513-524 ; 2 Mallory'a Life and Speeches of Clay, 244 ; 2 Colton's Speeches of Clay, 11-12. " 12 Oplns., 424-426. 744 MHJTAEY LAW AND PRECEDENTS. of the army and navy, for cause," — comments thereon as follows : — " This pro- vision did not, in my opinion, clothe the President with a new power, but gave an express legislative sanction to the exercise of a power Incident to the high official trust confided to him." " The leading commentators on the Constitution have expressed themselves to the same general effect in regard to the debate of 1789 and its result. Thus Sergeant writes " — " It was determined by Congress that the power of removal belonged to the President by virtue of the clause in the Constitution vesting in him the executive po^ver, and other parts of that Instrument, and this construc- tion has since prevailed." A similar view is expressed by Story" In regard to the legislation of 1789, and Kent refers to it in the following terms : " — " This amounted to a legisla- tive construction of the Constitution, and it has ever since been acquiesced in and acted upon, as of decisive authority in the case. It applies equally to every other officer of government appointed by the President and Senate, whose term of duration is not specially declared. It Is supported by the weighty reason that the subordinate officers in the executive department ought to hold at 1157 the pleasure of the head of the department, because he is invested gen- erally with the executive authority, and every participation in that au- thority by the Senate was an exception to a general principle, and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incident to that duty, and might often be requisite to fulfill it. This question * * * may now be considered as firmly and definitely settled, and there is good sense and practical utility in the construction." Conclusion. It will appear from this review that the construction of the Constitution in favor of the executive power of removal, however doubtfully arrived at In the beginning," had, prior to the legislation of 1866, (incorpo- rated in Art. 99,) become firmly established by the acceptation and judgment of the legal authorities and the continued and unquestioned practice of the executive department. It would certainly be the reasonable conclusion that an executive power thus confirmed could not be divested or restricted by Con- gress without a transcending of Its constitutional authority, and. that the view of Mr. Gushing, in his argument as Attorney General in U. S. i;. Guthrie " — that " nothing but an amendment of the Constitution could take from the President this power " — was founded in good reason."' The political history of the enact- " The enactment specifies — " for any cause which, in his " (the President's) " Judg- ment, either renders such officer unsuitable for, or whose dismission would promote, the public service." According to the cause stated, therefore, the dismissal would have the effect either of a mere discharge, or of a discreditable separation. «" That this provision of 1862 was " simply declaratory cf the long established law," see 15 Opins. At. Gen., 421 ; also Blake v. U. S., 103 U. S., 234. As to other " declaratory provisions which neither enlarge nor diminish the constitu- tional power of the President " — see 8 Opins., 233. With the opinions of Attys. Gen., cited in the text, see 2 Opins., 67, and 12 Id., 4, where the general power to dismiss is recognized by Mr. Wirt and Mr. Stanbery. The power was repeatedly affirmed by Judge Advocate General Holt, In his opinions during the war. "Const. Law, 373. "2 Com. on Const. § 1537, note. »s 1 Com., 310. And see Rawle on the Const, 287, 2 Marshall's Washington, 162. » It was carried in the House of Representatives by thirty-four votes against twenty, but in the Senate only by the casting vote of the Vice-President. The Federalist opposed it — see No. 77. And see also the views of Story in 2 Com. S 1539 "17 Howard, 288. "But that Congress may by law limit and restrict the power of removal of the " inferior officers " appointed by heads of departments — see Perkins v. V. S.. 20 Ct 01.. 438. MILITARY LAW AND PRECEDENTS. 745 ment of 1866, — the fact that it was Intended as a check upon President Johnson by a Congress toward which he occupied an antagonist position, — is still 1158 remembered." In the light of this history, while the existing law is of course binding till repealed or authoritatively determined to be uncon- stitutional, it is rather to be respected as an expression of the sentiment of Congress that dismissals, without trial, of army and navy officers, are in gen- eral inexpedient in time of peace, than as an exercise of the legislative power "to make rules for the government and regulation of the land forces." And, in this connection, it may be noted that now, as at the date of the opinion of Atty. Gen. ClifEord above cited, it is still declared in the commissions of mili- tary officers, as issued from the War Department, that the same are " to con- tinue in force during the pleasure of the President of the United States." EFFECT OF THE BTTLING IN BLAKE'S CASE. Until recently it had been generally supposed that the legislation of 1866, (admitting Its constitu- tionality,) operated absolutely to prohibit the removal from office, in time of peace, of an officer of the army, (not subject to retirement as presently to be noted,) by any form of proceeding except the sentence of a court-martial.™ In 1880, however, in the case of a chaplain of the army," it was held by the Su- preme Court that the statute of 1866, in declaring in substance that the Presi- dent should not summarily dismiss officers, meant simply that " he alone " should not exercise this power ; there being, as it was considered, in this legis- lation " no intention to deny or restrict the power of the President, by and mth the advice and consent of the Senate, to displace them " (i. e. officers of the army and navy) "by the appointment of others in their places." It was there- fore specifically held that — " The President has the power to supersede or re- move an officer of the array or the navy, by the appointment, by and with the advice and consent of the Senate, of his successor." ™ Under this ruling, the President, if determining to remove an officer of the army without trial, 115& (or after a trial which has not resulted in his dismissal,) has but to nominate to the office an eligible person " vice A. B. removed : " if the Senate concur in the nomination, the removal of the incumbent is completed. The case of Blake has been affirmed and followed in several later adjudi- cations." SEC. 1239, BEV. STS. — DISMISSAL BY DROPPING FOR DESERTION. The provision in the last clause of this section, authorizing the President to di-op from the rolls of the army, as deserters, officers who have been absent without leave for three months, is an incorporation into the Revised Statutes »' See Blake's Case, poat. In this connection should be noticed the " Tenure of Office Act " of March 2, 1867, (the provisions of which, as amended by the Act of April 5, 1869, are incorporated in Sees. 1767 et aeq. of the Rev. Sts.,) by which the concur- rence of the Senate is made necessary to the absolute removal of civil oflScers. This measure also was adopted during the same period of political excitement — when the President and Congress were at variance — as was the Act referred to in the text, and, as to the question of its constitutionality, is subject to a similar criticism. See the reference to it by Atty. Gen. Evarts, in Rollins' case, 12 Opins., 445-6, 449. [But the " Tenure of' Office Act " has now been repealed by the Act of March 3, 1887, c. 353—24 Stats, at Large, 500.] •■ See Street v. U. S., 24 Ct. CI., 247-8. " Blaise V. U. S., 103 tJ. S., 231. •'And see McElrath v. U. S., 102 D. S. 426; Keyes v. TJ. S., 109 U. S., 336. Cooley, Prins. Const. Law, 437. »» See Keyes i/. U. S., 109 U. S., 336 ; U. S. v. Corson, 114 U. S., 619 ; Runkle v. U. S., 122 U. S., 558 ; Crenshaw v. U. S., 134 U. S., 99 ; Mullan v. U. S., 140 D. S., 240. 746 MILITARY LAW AND PRECEDENTS. of the main portion of s. 17, Act of July 15, 1870, c. 294 ; " a further portion, relating to the forfeiture of pay by the officer dropped, being embraced in the subsequent Sec. 1266. The dropping from the rolls here authorized, while a form of summary dis- missal. Is distinguished from the executive dismissal already considered as consisting in law In a removal from olEce. This latter is a constitutional func- tion ; the authority to drop is a special power " conferred by Congress for the purpose of relieving the army of a useless member who has himself practically abandoned it," and the treasury from the obligation of paying for services no longer rendered : further, in mailing the officer dropped iaeligible for reappoint- ment. Congress attaches to his status a disqualification not involved in the case of an officer dismissed under the general constitutional authority to divest office. This distinction has been illustrated by the ruling of the Judge Advo- 1160 cate General,"" followed by a concurrent ruling, (in the same case,) of the Attorney General," to the effect that an officer who has been dropped from the rolls under Sec. 1229 is not entitled to apply for a trial under Sec. 1230, (presently to be noticed;) the latter section applying only to cases of offi- cers summarily dismissed under the general power of removal of the Executive. Under this statute there had been dropped, up to January 1, 1895, twenty- three officers. SECS. 1245 AND 1252, REV. STS. — DISMISSAL BY " WHOLLY BE- TIBING." These Sections, (taken from s. 17 of the Act of August 3, 1861, c. 42,) are Introduced under this Title as exhibiting a special authority vested in the President to summarily dismiss officers, found to be incapacitated for active duty by causes not incidental to the military service, by what is called " wholly " retiring — an awkward term, since all retired officers are wholly retired, but meaning here dropping altogether from the army; the names of the parties being, as is provided in the latter section, thenceforth " omitted from the Army Register." ' " This Is the only general statute on the subject. A previous Resolution of Congress, of May 5, 1870, had authorized the President to drop from the rolls two particular officers named. In a Res. of July 27, 1868, Congress had itself dropped six lieutenants for un- authorized absence from duty. •" " The Act of 1870 was intended to give to the President a fresh grant of power, to be exercised » • • independent of the Acts of 1865 and 1866." Newton v. U. S., 18 Ct. CI., 444. " That the officer dropped leaves the service in a dishonorable status, see Circ, No. 4, (H. A.,) 1891. "•DiGKST, 374. •Lieut Newton's Case, 17 Opins., 1.3. It was held by the Attorney 6enei;al In this opinion that — ^a trial by court-martial was not essential to the ascertainment of the fact of the absence specified in the statute, but that the President might determine such fact from the official records of the War Department ; that the order, (issued upon such determination,) dropping the officer under the statute, was final and conclusive — a decision from which there was no appeal ; and that the President, having issued it, was, as to that case, functus offloio and not empowered thereafter to " review, annul, affirm, or reverse, his own adjudication," an4 that it could not be revised or reversed by a suc- cessor of his In office ; that the fact that the order was made under a misapprehension of facts could not change Its legal effect ; that the order did not require the sign manual of the President, but that it was simply sufficient that it was Issued by the Secretary of War " by the direction of the President ;" that neither the Act of March 3, 1865, nor that of July 13, 1866, (Sees. 1230 and 1229, Rev. Sts.,) applied to cases under the enact- ment authorizing the dropping of officers. [And see Newton v. V. S., 18 Ct. CI., 444.] = Officers wholy retired become at once civilians, and, as such, cannot be readmitted to the army except by a new appointment. Digest, 666 ; Miller v. U. S., 19 Ct. CI., 339 ; McBlair v. U. S., Id., 528 ; Fletcher i;. D. S., 26 Id., 542 ; 19 Opins. At. Gen., 202. MILITABY LAW AND PBECEDEWTS. 747 The authority here conferred might with reason be regarded as having been divested In 1866 by the operation of the Act of July 13 of that year, heretofore considered, by which the President was prohibited from dismissing officers In time of peace. In practice, however, the Act of 1866 was not treated as 1161 having such efCect, cases of officers removed by being " wholly retired " being published In nearly all the Army Registers between 1866 and 1874, when the provision of 1861 was re-enacted in the Revised Statutes. Forming now a portion of the same general Act as does the provision, (of Sec. 1229 and Art. 99,) containing such prohibition, and not being repugnant thereto, it is (lilje the enactment relating to the dropping of officers for desertion,) to be regarded as of equal force with that provision, to the general rule indeed estab- lished by which It may, (also like the said enactment,) be viewed as constituting a special exception. SEC. 1230, REV. STS — TRIAL FOR OFFICERS SUMMARILY DIS- MISSED. This provision, which is s. 12 of the Act of March 3, 1865, c. 79, has already been fully considered in Chapter VI.' It provides for persons removed by executive act from military office* a formal hearing, and a remedy in case injustice is found to have been done them. Under existing law, however, — ^in view of the prohibition of such dismissals. In time of peace, — this enactment Is operative only in time of war. SEC. 1238, REV. STS. — RESTORATION OF DISMISSED OFFICERS. This section, which, as illustrating the effect of the dismissal of an officer of the army, is. in a measure a complement of Art. 99, is the Act of Congress of July 20, 1868, c. 185, not substantially modified. CASES OF DISMISSAL BY SENTENCE. This Act was described in Its title as " declaratory " of the existing law in regard to officers dismissed by court-martial. That it was declaratory in fact of the law as it had existed from the beginning of the government under the Constitution, is indicated by the uniform rulings of the Attorneys-General prior to its date.' Thege rulings are to the effect that the only legal mode of restoring to office In the army one who has been duly dismissed therefrom by the sentence of a military court, is by 1162 the exercise of the appointing power of the Executive. This, for the reason that the dismissal separates the officer fully and finally from the military service and makes him a private citizen, and that no such citizen can be endowed with a military office except in the way pointed out in the Constitution, viz. upon a nomination to the Senate confirmed by that body.' Opinions of Attorneys General, &c. Of the rulings referred to, on this sub- ject, some of the principal will be cited — ^as follows : 'Ante, p. "60. The leading case under this proTision is Lieut. Newton's. 17 Opins., 13 ; 18 Ct CI 435. * That It does not apply to cases of officers dropped for desertion under Sec. 1229, Eev. Sts., see Digest, 374, (1879,) and subsequent opinion of Atty. Gen. in 17 Oplns. ; 13, (1881.) "And see, later, U. S. v. Corson, 114 U. S., 621. « That the concurrence of the Senate is requisite may be stated as a general principle almost without quallflcatlon, since the exceptions thereto are so few. The Constitution, however, provides that Congress may, by statute, " vest the appointment of inferior offi- cers" a term understood to Include army officers in general: see 10 Oplns. At. Gen., 450—" In the President alone, in the courts of law, or in the heads of departments ; " and in rare cases Congress has been held to have vested in the President alone the power to appoint officers of the army. See 10 Oplns., 450 ; also opinion of Judge Advocate General, (in DiOEST, 150,) sustained by the Court of Claims In Collins v. V. S., 14 Ct. CI. 568, the ruling in which was affirmed In the Same Case in 15 Id., 22. 748 MILITAEY LAW AND PKECEDENTS. Thus, in an opinion given in 1843, in tlie cases of two naval oflScers, Lieut. Whitney and Passed Midshipman Moorhead,' who had been dismissed by sen- tence, Atty. Gen. Nelson, in referring, first, to the judgment pronounced in the former case, as harsh, proceeds as follows: — "But I know of no revisory power by which that sentence can now be rescinded, annulled, or modified. It has been passed upon by the competent authority from whose decision the law has provided no appeal. It must, therefore, forever stand as the judgment of the court. The effect of the judgment, it is true, may be removed ; not, however, in virtue of any authority to reverse the court's sentence, but in the exercise of the power of appointment with which the Constitution has clothed the Presi- dent. No case has been brought to my notice in which an officer once dismissed has ever been restored to the service otherwise than by nomination by the Chief Magistrate and confirmation by the Senate, where the grade of the appointment was within the control of their joint action ; and if such a case has 1163 occurred, I should not hesitate to declare It to be in direct repugnance to the Constitution and the laws, and to every principle applicable to their just and safe construction." As to the case of the other officer named, this — the Attorney General re- marks — " stands precisely, as far as the law is concerned, upon the same footing. The facts disclosed by the record show it to be one in which the sentence pro- nounced and executed was peculiarly harsh and severe. The proceedings of the court held in his case I do not deem it necessary particularly to discuss. I have no difficulty, however, in stating that they were exceedingly irregular. Testimony, manifestly illegal, was admitted, whilst that which was legal was ruled to be inadmissible. But still I do not perceive how those irregularities can be regarded as annulling the judgment pronounced.' They might have been appealed to as reasons why the revisory power, when called to act upon the proceedings, should not have approved the finding and sentence of the court; but that approval having been signified, they cannot avail wholly to avoid everything that has been done. The judgment of the tribunal created by the law has been pronounced and carried into effect, and the officer upon whom it operated was thenceforth unquestionably out of the service. This judgment I hold now to be irreversible. If Mr. Moorhead is restored to the service, it must be through the power of appointment, which the President will exercise according to his own sense of the exigency of the case." In a later opinion,' the same authority observes : — " I know of no power by which an officer once out of the service can be brought back to it other than that of appointment by the President." And in a further case" he describes the position of such an officer as being—" from the time of his dismissal to that of his new appointment," that of "a citizen having no connection with the public service." In a subsequent instance — that of the case of Lieut. Devlin of the marine 1164 corps"— Atty Gen. Gushing refers as follows to the conclusiveness of a sentence of dismissal of an officer, when duly approved by the President as the proper reviewing authority :^" The decision of the President of the United States, in cases of this sort, is that of the ultimate judge provided by the Constitution and laws. Like that of any other court in the last resort of law, ' 4 Opins., 274. It need hardly be remarked that the same rule must necessarily apply to all commissioned officers whether of the navy, army, or marine corps. •That mere Irregularities in the record, not affecting the legal validity of the pro- ceedings, cannot authorize the setting aside of the sentence— see further, 4 Oplns. At. Gen., 170 ; 7 Id., 104 ; 10 Id., 65, 67 ; 14 Id., 449. •4 Oplns., 306. "Id., 318. "6 Id., 870. MILITARY LAW AND PRECEDENTS. 749 it Is final as to the subject matter. There is one, and but one, legal question which would be competent in this case after the final decision of the President upon it ; namely that of nullity of the proceedings, as being, for instance, coram non judice, or, for other cause, absolutely void ab initio." That the result is the same where a department or army commander is the proper reviewing officer, authorized by law to confirm and execute the sentence of dismissal, (as he may be, in time of war, under Art. 106,) is indicated in a further opinion of the same Atty. G«n., in Capt. Howe's case." "As the general in command," he observes, " affirmed the sentence, and it has been carried into execution, there is now no longer any power competent to review and reverse that sentence." And he adds," that the President has no " rightful authority to review and reverse the sentence of a court pronounced in a case within its jurisdiction, duly approved by the revising power, and actually carried into full and complete execution." In a subsequent opinion — in the case of Capt. Downing of the navy "-^the same Atty. Gen. describes the effect of a sentence of dismissal, duly confirmed and executed, in the following terms : — " The dismissal thus became a consummated, fact, and incapable of being recalled by the President, so that, if" this officer " were to be restored to the navy, it could only be done by a new appointment. In this condition of things, and in the present stage of the case, no question can be raised on the proceedings of the court, save the purely technical one of nullity of sentence for want of jurisdiction." More recently,'^ Atty. Gen. Williams, referring to an army officer who had been cashiered by sentence, says of him that he "is out of the army as 1165 much as if he had never been in it." And in a later case '" he more fully delineates the status of a duly dismissed officer of the army, as follows : — " His previous connection with the service having ceased, he thereupon became a civilian, and in a legal point of view he can be regarded as standing on no different ground relatively to an appointment to such rank or position than that occupied by any civilian who may never have been in the army. If it would be contrary to the law of the military service to appoint the one thereto, so it would be to appoint the other." As a further reference — Atty. Gen. Bvarts " clearly states the law in regard to an officer of the army dismissed by sentence, in remarliing that, after such sentence " is duly confirmed and executed ,the dismissed officer cannot be rein- stated by means of a pardon or in any other manner than by a new appoint- ment and confirmation by the Senate. This is because the execution of the judgment in effect abrogates the officer's commission and entirely dissolves his connection with the service, placing him in exactly the same situation relatively thereto which he occupied previous to his original appointment." " « 6 Opins., 514. And see 10 Id., 66. « 6 OpIns,, 507. " 7 Id., 89. 1^14 Opins., 449. "Id., 502. " 12 Opins., 548. The same doctrine has recently been repeated by Atty. Gen. Brewster, in Gen. Porter's case, (Opin. of March 15, 1882,) where indeed, in stating that the particular officer, having become, by dismissal, a civilian, can be restored to the army only by a reappointment, he adds that such reappointment must be authorized by special Act of Congress, because the Army Regulations require that " appointments to the rank of General shall lie made iy selection from the army." [In a further opinion in this case, of June 23, 1884, it was held by the same authority that an Act of Congress re- QUiring or authorizing the appointment to a military office of a particular person desig- nated ty name was unconstitutional, mainly as assuming to limit and control th? appoint- ing power of the President.] '^ To a similar effect see the recent case of Vanderslice v. U. S., 19 Ct. CI., 480 ; Runkle V. U. S., Id., 397. 750 MILITARY LAW AND PBECEDBNTS. Conclusiveness of approved sentence of dismissal. The extracts thus given illustrate most fully the principle of the conclusiveness of a legal sentence of dismissal adjudged by a military court, when the same has been once duly passed upon and approved by the final authority provided by the code and thereupon executed." In such an instance the law, having in view the 1166 imperative necessity for certain and speedy punishment in the military service, has provided no appeal from the decision and order of the final reviewing officer, (whether President, or — in time of war — military commander,) who, as it is expressed by Mr. Gushing, is thus the "ultimate Judge" in the case." The sentence of dismissal being once approved and executed — and we have heretofore seen that it becomes executed upon notice to the officer of the act of approval or confirmation, officially given — the absolute separation of the party from the military service Is a fait accompli. The President's, (or military commander's,) authority over the sentence or proceedings of the court, as the final reviewing officer and judge designated by the code. Is exhausted, and he is without the power to recall or modify his action. Moreover, as a pardon cannot affect an executed punishment, the President, as the pardoning power under the Constitution, cannot any more do away with the efEect of the sentence than he could in the other capacity devolved upon him by the 106th Article. This has already been pointed out In the extract from the opinion of Mr. Evarts, and is illustrated by the Supreme Court in Ex parte Garland," where it is said — "A pardon- does not restore an office forfeited." Thus the party sentenced is placed in precisely the position of any other civilian who has never been in the army at ail. Except in the mode provided by Art. II, Sec. 2, § 2 of the Constitution, he cannot be reinstated in or restored to the Army." Illegal restorations, &c., by orders. Such being the law on this subject, the appropriateness of the title of the Act of 1868, in describing it as a statute declaratory of the existing law, is clearly perceived. That this legislation was, further, most timely — was in fact needed — is shown by the practice 1167 which had grown up In the latter part of the war of making an execu- tive order do the duty of a constitutional appointment, and thus of ignoring the principles of law governing the filling of offices in the army, as well as those determining the efEect of the judgments of courts-martial. The extent to which this practice had been carried can only be appreciated by consulting the published General Orders,'' of the War Department, especially during the years 1865 to 1867 inclusive. Here will be found order after order in which the legal and executed sentences of military tribunals were assumed to be set aside, and the officers, duly dismissed thereby, to be thereupon restored to, or redetached honorably from, the army. In some of these cases the officer, (who upon the execution of his sentence has become a civilian,) is " In some of the opinions cited, the fact that the dismissal was executed tinder a former President is referred to as illustrating the absence of authority in the existing Executive to reopen the case. See 4 Opins., 170 ; 5 Id., 384 ; 6 Id., 50T, 514 ; 10 Id., 65. This fact, however, cannot affect the question of the legal power. See 11 Opins., 22. A sentence of dismissal is as fully executed, and as completely beyond the reach of the reviewing authority or the pardoning power, on the day after tl^it on which it talses effect, as at any subsequent time, however long, thereafter. "■And see 12 Opins., 21. = 4 Wallace, 381. And see Vanderslice v. V. S., 19 Ct. CI., 480. = See, further, in this connection, Report, 868 of the Judiciary Committee of the Senate, of March 3, 1879, 45 Cong., 3d Ses. ; 17 Opins. At. Gen., 297 ; 18 Id., 18 ; 19 Id., 202, 609 ; U. S. V. Corson, 114 TJ. S., 619. " A large number Is also to be found In the Special Orders. MILITAKY LAW AND PRECEDENTS. 751 " reinstated in," or " restored " or " returned to " his former office and rank ; " in otliers he Is " honorably discharged " from, or " mustered out " of, the mili- tary service;* in others his resignation is accepted, (or permitted to be ten- dered,) as of the date generally of the preceding dismissal." In the majority of these Orders the sentence is declared to be " revoked ; " in others it Is " set aside " or " annulled." In one it is " vacated," in another " voided," in others "modified" — to honorable discharge. In several the sentence, once duly ap- proved by a competent commander, (and executed,) Is again reviewed and " disapproved ; " in some the pardoning pov?er is applied, and the executed sentence " remitted " or the individual " pardoned." It need hardly be observed that the action in all these cases proceeded upon a misconception of law and of the executive function, and was wholly without legal authority. Those Orders which, in assuming to " revoke " or " set aside " a regular and valid sentence, declared the party to be " honorably dis- charged " or " mustered out," or announced that his resignation was ac- 1168 cepted, were equally illegal with those which professed to reinstate him as an officer, since to discharge or muster out as an officer one who is a civilian, or to permit him to resign as such, it Is necessary first to put him back into the army. Kestorations, &e., by legislation. It is thus perceived that the statute of 1868, in recalling the military department of the government within its proper province, and in reaffirming the rule of law governing cases of the class under consideration, was a judicious and opportune measure. Upon its enactment, the practice above indicated was presently discontinued, and the more recent cases of a disregard of the organic law in the particular under consideration are not cases of executive orders but of statutory enactments by Congress. Thus, by an Act of March 3, 1873, c. 250, the Secretary of War was " authorized and directed to restore " a party named, — who, as a captain in the veteran reserve corps, had been dismissed by sentence in March, 1865, (since which time that corps had ceased to exist,) — "to his position as such captain, and grant him an honorable muster-out as of the date on which he was dismissed." Again, by an Act of June 9, 1874, c. 273, the Secretary of War was '" authorized and directed to give to " a party, who, as a captain of a regular regiment, had been dismissed by sentence in June, 1870, " an honorable discharge from the service of the United States, to date " as of the date of his dismissal. Still further, by an Act of June 23, 1874, c. 499, it was provided—" That the Secretary of War be and is hereby directed to amend the record of," (a lieutenant named who had been dismissed by court-martial in July, 1870,) " so that he shall appear on the rolls and records of the army for rank as if he had been continuously in service." These provisions were all at variance with the provisions of the Constitu- tion relating to appointmen ts." Congress has no power, of itself, to restore » See G O 81, 116, of 1863 ; G. C. M. 0. 378, 540, 550, 630, 675, of 1865 ; Do. 9, 160, 171 201 206 of 1866 • Do. 75, 81, 90, 97, 105, of 1867 ; Do. 46 of 1868 ; Do. 19 of 1870. «'see G C 'm O 559 of 1865 ; Do. 3, 21, 64, 65, 80, 81, 93, 99, 122, 133, 161, 172, 180, 205, 207, 221, of 1866 ; Do. 17, 20, 86, 88, 89, of 1867 ; Do. 2, 78, of 1868 ; Do. 44 of 1869. » G. O. 27 of 1866 ; G. C. M. O. 271, 629, of 1865 ; Do. 16, 225, of 1866 ; Do. 26 of 1867 « See on the subject of this class of legislation, the case of Wood v. V. S., 15 Ct. CI., 151 In which the principle that appointments to office cannot be made by Congressional enactment is illustrated in the case of an army officer. That an army officer on the retired list, who accepted and entered upon a consular office, and thus, under Sec. 1223, Rev. Sts., vacated his military office, cannot be restored to It by the mere opa-atlon of a Bubseauent Act of Congress, Is properly held by the Attorney General in 19 Opins., 609. 752 MILITARY LAW AND PRECEDENTS. 1169 to the Army a legally dismissed officer, or — since, to do so, it must first restore him to It— to grant him an honorable discharge from it. Nor has it any authority to empower the President or Secretary of War to do either,— except, indeed, in so far as it may authorize a restoration by a new appointment under Art. II of the Constitution. As to the Act last above cited, of 1874, it is to be remarked that the same was held by the Attorney General to have been wholly Inoperative, at least for the purpose for which it was apparently designed."" " The Act in question," he observes, " seems to proceed upon the idea that the obliteration of the Army records, as therein provided for, will ipso facto restore " the party " to the office from which he was dis- missed. This idea is in conflict with the Constitution of the United States." The party, " in pursuance of the sentence of a duly organized court-martial was discharged from the Army in 1870, and since that time his relations to it have been like those of any other private citizen. Any mistake by this tribunal, not involving its jurisdiction, does not afCect the validity of its proceedings. Con- gress cannot annihilate a fact by causing the record-evidence of its existence to be destroyed ; nor can Congress constitutionally appoint a private citizen a lieu- tenant, colonel, or general in the Army. The appointing power is vested by the Constitution ' in the President, by and with the advice and consent of the Sen- ate,' except where It is vested by law in the courts or the heads of Depart- ments." " BESTORATION OF OFFICERS DISMISSED BT ORDER, &c. In connec- tion with the specific subject of the Section under consideration— 1170 the restoration of officers dismissed by sentence — ^it may well be noticed that the same constitutional principle and the same rule of law apply equally and alike to cases of officers dismissed or separated from the military service by summary order or in any other legal and authorized manner. Rulings on the subject. Thus an officer dismissed by summary order of the President, (at a time when that form of removal from office had' not been pro- hibited by statute,) was as fully and completely made a civilian as where dismissed by sentence, and could not therefore be restored by a new order revoking the original order, but by a reappointment alone. This also has been uniformly held by the Attorneys General, who have also noticed that the justice or injustice of the dismissal was an Immaterial circumstance. Thus in the case of Surgeon Du Barry of the navy,'" dismissed by executive order without trial, it was observed by Attorney General Legarfi, as follows : — " He was clearly out of the service by a lawful and valid, however harsh, (and even it may be unfair,) exercise of the appointing power. If he has been restored, it has not been by avoiding the act dismissing him, for that could not be done. It ="14 Opins., 448. The effect which is given to the Act In the opinion is certainly a remarkable instance of a liberal construction. " A more recent instance of exceptional and objectionable legislation of this class was the Act of March 15, 1878, by which the President was authorized to " annul and set aside the findings and sentence " of a general court-martial by which an officer had been legally dismissed from the military service, and to " place him on the retired list of the army." A later and even more extraordinary Instance was that of the Joint Resolu- tion of March 3, 1879, by which the Secretary of War was " required to order a military court-martial or court of inquiry to Inquire into the matter of the dismissal " of a cer- tain officer named ; " said court to be fully empowered to confirm or annul the action of the War Department by which said " officer was " summarily dismissed the service " in 1863 ; the " findings " of the court " to have the effect of restoring " said officer " to his rank, with the promotion to which he would be entitled If It be found that he was wrongfully dismissed, or to confirm his dismissal if It be otherwise found " ! " 4 Opins., 124. And see the general observations applicable to either form of dis- missal, already cited from 14 Id., 502. MIUTABY LAW AND PBECEDENTS. 753 was beyond the power of the Executive. All that the President can do, in such cases, is to repair any wrong done by a new appointment." And, in a further opinion in the same case," another Attorney General, Mr. GlifCord, says : — " No process of reasoning or fiction of law will enable his counsel to escape from the fact that, during all this time," (the period during which the order of dis- missal was in operation,) "he was a private citizen, holding no commission under the authority of the United States." In a later opinion,'^ Mr. Gushing places the two forms of dismissal upon the same footing as respects the power of the Executive to rehabilitate or relieve the officer; and in a more 1171 recent case,'' of an officer of the army dismissed by order and subse- quently sought to be restored by a second order assuming to revoke the former, Mr. Browning, citing as authority Attorney General Nelson's opinion, already quoted, in the case of the two naval officers dismissed by sentence, holds that the relations of an officer to the service being " dissolved " by an executive order of dismissal, " a revocation of the order dismissing him cannot work his restoration ; " in other words, that the order of so-called revocation is a simple nullity and wholly futile, revoking nothing. The only counter authority known to exist on this point is that of the Court of Claims in the early case of Smith v. United States,"* in which it was held that where an executive order was issued revoking a previous summary order of dismissal in the same case, the prior order " was revoked from its Inception and altogether ; " that " all its consequences were annulled ; " and that the officer was to be viewed as having been in office continuously during the entire interval between the date of the order of dismissal and that of the revocation, and entitled to full pay for such period. This eccentric and mis- taken doctrine, however, though repeated in some other of the earlier cases passed upon in that court," was finally abandoned by the same in McElrath's case,"" and the correct doctrine as there held has been reaffirmed In later rul- ings." Cases of officers otherwise separated from the army. The principle thus illustrated is the same, and the ,same rule is to be applied, where, in any legally authorized mode or form other tho/ti by summary order of dismissal, the officer is separated from the military service. As, for instance, where he is discharged by the Execv^tive, not as an original act, but under and by reason of a 1172 public statute expres.sly requiring such discharge." So, where he is " dropped " under Sec. 1229,°° or " wholly retired " " under Sec. 1252, of " 4 Opins., 604. " 8 Opins., 235. "12 Id., 427. And see Digest, 371, 607-608. It follows that any orders of the War Department, In which valid summary dismissals have been revoked, were, so far, unau- thorized and legally inoperative. See cases In G. C. M. O. 637 of 1865 ; Do. 76 of 1866. "2 Ct. CI., 206. The fact, to which Importance was attached in this case, — that the original order was unjust and that the revoking order was made to right the wrong done,-^was really wholly imma'terial. ^Winters v. V. S., 3 Ct. CI., 136; Barnes v. V. S., 4 Ct. CI., 216; Montgomery v, V. S., 5 Ct. CT., 93. »» McElrath v. V. S., 12 Ct. CI., 202 ; affirmed In 102 U. S., 426. "Palen v. D. S., 19 Ct. CI., 389; Montgomery -u. D. S., Id. 370; Miller v. U. S., Id.. 338: Mimmack i;. U. S., 97 D. S., 426; V. S. v. Corson, 114 V. S. 619. »* See 5 Opins. At. Gen., 101 ; also 8 Id., 223. " A parallel case is that of a cadet of the Military Academy, discharged upon the recommendation of the Academic Board under Sec. 1325, Rev. Sts. The President can- not, by revoking the order of discharge, restore the cadet, though the Board may recommend it. 17 Opins. At. Gen., 67. . „ „, . « See the principle applied to a case of a " wholly retired officer in McBlalr «. U. S., 19 Ct. CI., 528 ; also in Miller v. V. S., Id., 338. 440593 0-42-48 754 MILITABY LAW AND PBECEDENTS. the Revised Statutes, already considered ; or where he has vacated his military office, under Sec. 1228, R. S., by the acceptance of a diplomatic; or consular office." And so, where the officer has tendered Ms resignation and the same .has been duly accepted: here also it has been held by Attorney General Evarts," that, upon such acceptance, the officer Is " out of the service as completely as If he had never been in it," and " that he can only be restored to It by a new appointment made conformably to the Constitution ; " further, that an order assuming to revoke an acceptance of a resignation, after the same had once taken efEect, is of no legal validity. And so with a permission given to an officer to withdraw a resignation once duly accepted ; "—no such act can have any efCect to restore the officer. BESXJLT. The result of this general examination of the subject is, that in all cases where an officer of the army is legally separated from the military service, and remanded, as he must thereupon at once be, to the status of a civilian, — whether this be effected by sentence of general court-martial, summary order, dropping, retiring, acceptance of resignation, vacating of office by opera- tion of law, or otherwise, — the mode pointed out in Section 1228 of the Revised Statutes, and in Art. II, Sec. 2, § 2, of the Constitution, Is the only legal mode by which he can be restored to the army ; that any other mode, whether re- 1173 sorted to by the executive or legislative department of the government, is In derogation of the Constitution and wholly futile ; ** that it in no manner affects the application of the general principle that the dismissal may have been quite unwarranted by the facts or grossly unjust ; and that the only exception to such application is where the original dismissal was absolutely Illegal and therefore inoperative — as where, the dismissal having been by sentence, the proceedings of the court, from defect of constitution, want of jurisdiction, or otherwise, were rendered null and void. Such case, however, is really no excep- tion, since here there has been no dismissal in law. XXIX. THE ONE HUNDRED AND TWENTY-SECOND, ONE HUNDRED AND TWENTY-THIRD, AND ONE HUNDRED AND TWENTY-FOURTH ARTICLES. [Relative Right of Command, Relative Rank, &c., of Different Classes of Officers.] "Akt. 122. If, upon marches, guards, or in, quarters, different corps of the Army happen to join or do duty together, the offl)ser highest in rank of the line of the Army, Marine Corps, or militia, l)y com/mission, there on duty or in quarters, shall command the whole, and give orders for ichat is needful to the service, unless othervAse specially directed iy the President, according to the nature of the case. "Art. 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 *> 19 Oplns. At Gen., 609. " Capt. Mlmmack's case, 12 Oplns., 555 ; Do. 14, Id., 262 ; 19 Id., 350. See also tlili case reported In 10 Ct. CI., 384, where a similar result Is reached upon quaint reason- ing, and in 97 U. S., 426, where the prevtons rulings are affirmed. These rulings have been still later reaffirmed in the cases of Bennett v. U. S., 19 Ct. CI., 379 ; Turnley v. V. S., 24 Ct. CI., 317. And see 14 Opins., 499. In a subsequent opinion, (18 Oplns., 311,) It was held that a resignation otFered, and rejected at the time, cannot subse- quently be accepted so as to separate the officer from the army. To effect this, there must be a new tender and acceptance. " 19 Opins. At. Gen. 350. ** See — generally — the opinions of the Attorney General in Gen. Porter's case, in 17 Oplns., 297 ; IS Opins., 18, MILITABY LAW AND PBECBDENTS. 755 volunteers commissioned in, or vmstered into said service, wMer the laws of the United States, for a limited period. "Abt. 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 he employed in conjuration with the regular or volunteer forces of the United States, take rank next after all officers of the Uke grade i im said regular or volunteer forces, notunthstanding the commissions of 1174 such militia officers may be older than the commissions of the said officers of the regular or volunteer forces of the United States." One Hundred and Twenty-Second Aeticle. OBIGIIT. The original of this provision, as taken from a corresponding British Article, is found In Art. 25, Sec. XIII, of the code of 1776. It first appears, however. In its present form. In the 62d Article of 1806. COITSTBUCTION — "If upon marches, guards, or in quarters." This somewhat antiquated form of expression, which might well be dropped alto- gether from the Article, or be replaced by some simpler and more comprehensive term, is no doubt Intended to cover all occasions of duty where different corps of the military force would be likely to meet for joint service, whether upon a campaign against an enemy, or when quartered together at a garrison or mili- tary post In time of peace. The term " guards " Is deemed to refer particularly to grand, brigade, or picket guards, in the field In time of war. " Different corps of the Army." As In Art. 82, heretofore considered, the term " corps " Is regarded as used here in a general sense, as extending to any separate and distinct arm or branch of the service comprised in the existing military establishment. The description " different corps of the army " is therefore construed as embracing, on the one hand, the infantry, cavalry, and artillery, and, on the other hand, the various departments, &c., or individual officers, included under the general term staff — -a term which will be more particularly defined hereafter. Further, the word " corps," as here employed, is interpreted as meaning not only an organized body or complete portion of the force, but any officered de- tachment however small, or even single officer, representing such an organiza- tion or portion." It has already been noticed " that the term " different corps " in Art. 82 is held to allow of the same application. " Happen to join or do duty together." This phrase is evidently 1175 intended to comprehend not only occasions where different corps are em- ployed together upon some specific duty under express orders, but where, by the chances of an engagement, a march, or other incident of the service, such corps come to meet and combine in any military operation otr movement, or in the occupation of the same camp, garrison, or post. A mere fortuitous and temporary meeting, where the two or more separate bodies or detachments do not in fact combine, and where no occasion arises for the assumption of a single command over the whole. Is of course not contemplated. " The officer highest in rank by commission shall command the whole," &c. This means the officer who Is highest or senior In rank by the commission under which he Is at the time serving.*' He may possess a commission in a higher rank than that In which he is actually serving, but it will not be available for conferring command under the circumstances contemplated by the Article. " See Cire. 3, Dept. of Va. & No. Ca., 1865. " Chapter XXII—" Construction of Art. 82." " See O'Brien, 51, 55. 756 MILITABY LAW AND PBECBDENXS. Thus a captain may also be a colonel by brevet, but unless he has been specially assigned to duty according to this brevet rank," and is serving at the time under that assignment, he cannot claim any right of command pertaining to such rank. The provision of the Article is also operative where the original commander of the mixed command absents himself or is disabled by wounds or iUness. In such case the Article devolves the command upon the next senior line officer present, as his successor." " Of the line of the Army." The term " line of the Army " is susceptible of being interpreted as intending Regulars or U. S. forces as distinguished from State or other local troops; an officer of the line of the army thus being one who holds his commission under the authority of the United States as distin- guished from one who holds it by the appointment of a Governor or other local authority. This interpretation receives support from the fact that during the Revolutionary war the term line was frequently employed in the laws and pro- ceedings of Congress to indicate the military contingent of a particular 1176 State — as the " Pennsylvania line," the " New Jersey line," the " Virginia line," "" while in referring to the regular army, or the army as a whole, the term " line of the army " or " continental line " was sometimes used." The authoritative construction, however, of the word " line " in this Article has been that it is employed simply as distinguished from staff, and for the purpose of excluding staff officers from the right of command, and devolving it upon the officers of the regular and volunteer regiments, &c., in the situations described. This construction was arrived at in Surgeon Finley's case, published in General Orders, No. 51 of 1851, in which the proper interpretation of this Article was directly involved, and the question under consideration very fuUy discussed ; the view thereon of the President being announced by the Secretary of War as follows: — "His opinion is that these words * * * are iised to designate those officers of the Army who do not belong, to the Staff, in contradis- tinction to those who do, and that the Article intended, in the case contemplated by it, to confer the command exclusively on the former." "' Among the "Under Sec. 1211, Key. Sts., as now restricted by Act of March 3, 1883, providing that officers shall be so assigned " only when actnally engaged in hostilities." " See G. O. 14, Dept. of the Ohio, 1865. •" The " Virginia line " Is also referred to In the later Acts of Aug. 10, 1790, and June 9, 1794. "' See III Jour. Cong., 132, 572, 705, where this line and the line or lines of a State or States, are directly contrasted. ■" This opinion Is cited and adopted as a " satisfactory exposition " of the term line. In Scott's Military Dictionary, p. 3S8. Prior to the date of the Order, O'Brien, (p. 50,) had similarly Interpreted the Article. " Staff officers," he says, " are not merely excluded from command, but are subject to the orders of the senior officers of the line without re- gard to the relative rank of either. A colonel of the staff would be subject to the orders of a captain of the line. If the latter were the senior officer on duty." The definition of " the line " by English writers partakes of both the meanings at- tributed to the term In the text Thus James, (Mil. Diet.,) writes — " This term Is fre- quently used to distinguish the regular army of Great Britain from other establishments of a less military nature. AH numbered or marching regiments are called the line. • • • The French say ' troupes de ligne,' which term corresponds with our expression, Army of the Line or Eegulars." He adds, however, that " the true Import of line In military matters means that solid part of an army which is called the main body and has a regular formation from right to left." Stocqueler, (Mil. Encyc.,) defines the line to be — " the numbered succession of the ordinary regiments of the regular army, exclud- ing special or local corps." Campbell, (Diet, of Mil. Science,) describes the line as — " an expression used to distinguish the regular regiments of the British Army from other corps." And see Burns' Mil. and Naval Technological Diet. — "Ligne." Duane, (an American writer,) who follows James, says In his Mil. Diet. — " The marines, militia, and volunteers do not come under the term." The present prevailing and familiar construc- tion, however, of the term Une is as given in the text. MILITARY LAW AND PRECEDENTS. 757 117T grounds for this conclusion are stated the following :— that " the com- mand of troops might frequently Interfere with their" (staff officers') " appropriate duties ; " that " the officers of some of the staff corps are not qualified by their habits and education for the command of troops ; " and that "officers of the stall corps seldom. have troops of their own corps serving under their command, and if the words ' officers of the line ' are understood to apply to them, the effect would often be to give them command over the officers and men of all the other corps when not a man of their own was present— an anomaly always to be avoided where it is possible to do so." In support of this ruling it is declared in the Order that the term line Is employed almost uniformly elsewhere In the public laws as "correlative and contradistinctive " to staff.- A case referred to, (as occurring in the same stat- ute,) is that of Art. 74 of 1806, in which the phrase—" in the line or staff of the Array," is used as a comprehensive description of the military establishment in general. Other cases are cited from a series of Acts between 1813 and 1847. It is however to prior Acts — i. e. to legislation had by Congress between the adoption of the Constitution in 1789 and the enactment of the code of 1806 — that reference should especially be had in this connection, and such legislation is in fact found to present repeated instances in which the term " line of the Army " is employed to designate the line as distinguished from the staff." THE LINE AND STAFF OFFICERS OF THE PRESENT ESTABLISH- MENT, DISTINGUISHED. The line officers proper of the army as 1178 now organized comprise all the officers— colonels, lieutenant colonels, majors, captains and lieutenants — of the existing five regiments of artil- lery, ten regiments of cavalry, and twenty-five regiments of infantry ; line being thus substantially equivalent to regimental. In the late war it included the officers of the volunteer regiments as part of the Army of the United States." Such officers, however, are line officers, in the sense of the Article, only when acting or serving as such : a line officer detailed upon staff duty ceases for the time to be a part of the line. The other officers of the establishment, — ^with the exception of a single class yet to be specified, — are those designated as staff officers ; this description com- prising — (1) the officers of the " General Staff," i. e. the staff of the President as Commander-in-chief," consisting of the heads and members of the different staff " corps " or " departments," on duty in the War Department at Washing- ton or at the headquar1;ers of military Divisions or Departments, or other sta- tions; (2) the officers of the personal staffs of commanding generals, consisting of the aids-de-camp, (and military secretary to the Lieut. General,) allowed by statute. LINE AND GENERAL OFFICERS DISTINGUISHED. The excepted class above indicated are the general officers of the army, (other than those at the " See Acts of March 3, 1791, s. 5 ; March 5, 1792, a. 7 ; May 30, 1796, s. 3, 12, 13 ; March 3, 1797, s. 2 ; May 28, 1798, a. 6 ; July 11, 1798, s. 2 ; July 16, 1798, s. 3, 4 ; March 16, 1802, s. 3, 4 ; February 28, 1803, S. 2. And see also earlier instances in 3 Jour. Cong., 273 ; 4 Id., 165. It may be noted here that the word " line " was sometimes employed in the early stat- utes in another and more specific sense, to Indicate a separate and distinct arm or por- tion o( the forces. Thus — " the line of major generals," (3 Jour. Cong., 202 ;) — " the line of infantry in the army of th4 United States," (Id., 560 ;) — " the line of artillerists and engineers," (Act of July 16, 1798, s. 9;) — "the lines of artillerists, light artillery, dragoons, riflemen and infantry, respectively," (Act of June 26, 1812, s. 5) . « See anU, Chapter VIII, p. 87. " Stocqueler, (Mil. Encyc.,) defines " Staff," (i. e. what is known with us as the " Gen- eral Staff,") as — " the body of ofBcers Intrusted with the general duties of the army in aid of a Commander-in-chief." And see DieiiST, 430. 758 MILITABT LAW AND PRECEDENTS. head of the staff corps,) now (January 1, 1865,) consisting of three Major Generals, and six Brigadier Generals." These officers, commanding as they do both staff and line, and charged as they are with duties and responsibilities Incident to a supervision of both staff and line service, are themselves clear^ no more line than staff officers," and are therefore not included in the descrip- tion " of the line of the Army " employed in the Article. Command, how- 1179 ever, being of the very essence of their rank and office, a construction of the Article which would exclude them from command, under the circumstances therein specified, would Involve an absurdity. No such construc- tion, however, is required, for the reason that this is evidently a class of officers not contemplated by the Article at all, but quite outside of and beyond Its application. It thus follows that their right of command, upon occasions of the cooperating of bodies of troops, is in no manner affected by the Article, but is to be determined, in the absence of any special assignment, (f. e. "unless otherwise specially directed by the President,") by the established military rule of superior rank and seniority. In other words, as remarked by the Secre- tary of War, in the Order above cited,"* the Article was designed to meet only cases where, upon the uniting of different corps, there is present "no common mperior" of the line officers commanding the several detachments. If Indeed, he adds, "there be a Major General or Brigadier General present,- the case contemplated by the Article does not exist : no question can arise as to the right of command, because the general officer, not belonging to any particular corps, takes the command by virtue of the general rule which assigns the com- mand to the officer highest In rank." ASSIMILATED CASES — MARINE COBFS OB MILITIA. By the terms of the Article, line officers of the Marine Corps, when " detached for service with the Army," as indicated in Art. 78, and line officers of Militia, when mobil- ized and serving with it under a call by the President, are assimilated to officers of the army proper, so far as respects the right of command. But here it is to be observed that the provision as to militia officers Is to be taken as subject to the provision of Art. 124, — that when such officers are "employed in conjunction with the regular or volunteer forces of the United States," they shall " take rank next after all officers of the like grade in said forces," notwithstanding that their commissions may be older than those of the officers referred to. Thus a captain of regulars or volunteers would be en- titled to the command in preference to a captain of militia with whom he was joined in service, though the commission of the latter bore an earlier date: a captain of militia, however, would of course take precedence of and 1180 command a lieutenant of regulars or volunteers under the same circum- stances. The two Articles— the 122d and the 124th— are, as they stand, somewhat contradictory ; but, being parts of the same statute, it is necessary to give that force to the provisions of each which they would have if they con- stituted but one section In which the second appeared In the form of a proviso to the first. One HtJNDEED and Twentt-thied AaTictE. OBIGIN. This statute, which first appears as an Article of war in the ex- isting revised code of 1874, Is a concise form of a provision of sec. 2 of the Act "By a recent Joint Resolution of Feb. 5, 1895, the giade of Lieutenant General waa temporarily revived In the army. •^ In a few of the early statutes— (see Acts of March 5, 1792, a. 7 ; March 3, 1795, 8. 10)— fixing the pay of the army, the officers are classed under the two heads of " Gen- eral Staft " and " Eeglmental ; " the general officers being named under the former. This classification, however, subsisted for but a brief period. "• 6. O. 51 of 1851. MILITARY LAW AND PRECEDENTS. 759 of March 2, 1867, c. 159 ; which section, omitting the last clause, (which pro- vides that the Act shall not apply to the militia,) enacted as follows: — "That in all matters relating to pa/y, aUowam,ces, rank, duties, privileges, and rights of officers and soldiers of the army of the United States, the same rules and regulations shall apply without distinction for such time as they may he or have been in the service, aUhe to those who belong permanently to that service and to those who, as volunteers, may be or have been commissioned or trms- tered into the miHtary service under the laws of the United States for a lim- ited period." That portion of this section which refers to the "pay and allowances of officers and soldiers " is incorporated In Sec. 1292, Rev. Sts." EFFECT AND SFIBIT. This Article, recognizing the principle that offi- cers and soldiers of volunteers In the TJ. S. service are a constituent part of the Army which Congress Is authorized by the Constitution to raise and sup- port," and that, except as to their term of service, no legal distinction exists between them and the officers and soldiers commonly designated as " regulars," places specifically the officers of both contingents upon precisely the same foot- ing as to precedence, command, and all other rights and duties attached or pertaining to rank or office. The term " rules and regulations " is viewed as employed In the statute in a general sense, and as Intended to embrace all 1181 laws, army regulations and orders by which the rights and privileges of the members of the military establishment are defined and fixed. A tribute to the Volunteers. The statute of 1867, as now represented by this Article and by Sec. 1292, Eev. Sts., Is really a tribute to the services of the volunteer forces during the late war. Prior to this legislation, a discrimination, as to rank and precedence, in favor of regular officers over officers commissioned by State authority, which had been initiated by the Resolution of Congress of Nov. 4, 1775," and Art. 2 of Sec. XVII of the code of 1776 had been continued in Art 98 of the code of 1806, which remained In force pending the war. But during this exigency, from the first lev4e en masse to the end of the rebellion In 1866, the volunteer element of the national army had become so vastly augmented as not only greatly to exceed all others, but finally, so far as the enlisted men were concerned, to comprise practically the efficient fighting force." The public services of this class of troops had been In proportion to their numbers. With- out them the rebellion could never have been suppressed or the sovereignty of the United States re-established. At the same time the militia proper, though valuable as far as they went, and especially at the outset of the war, had been shown to be a far less considerable and available element of our military strength. "In 15 Opins., 332-3, the Attorney General, in referring to the original provision of 1867 as having " undergone very material modification in the revision of the Statutes," observes that " part of it appears in Sec. 1292, R. S.," and " part of it also In the 123d Article." "Ante, Chapter VIII, p. 87. "This Is in full as foUowsi: — "Resolved, That the officers on the continental estab- lishment shall, vfhen acting In conjunction with officers of equal rank on the provincial establishment, take command of the latter and also of the militia ; and the officers of the troops on the provincial establishment shall, when acting in conjunction with the officers of the militia, take command and precedence of the latter of equal rank, notwithstanding prior dates of commissions." "Gen. R. B. Ayres, who commanded a large portion of the regolar force In the late war, testified on the Warren Court of Inquiry, with reference to the state of his command at the date of the battle of Five Forks, fought at the end of the war, on April 1, 1865, as follows : — " Q. Had you any of the regulars of your division here? A. No ; the regulars had been burled. I had regulars — what were known as the regular division, before I went into the battle of Gettysburg. I left one-half of them there, and buried the rest In the WUdemesB. There were no regulars left" 760 MILITABT LAW AND PRECEDENTS. Hence the justice, at the termination of hostilities, of placing upon the statnte book an enactment testifying to the worth and Importance of the volunteer forces by putting an end to the previous discriminations against them, and 1182 assimilating them in every respect, while remaining in the Army, to the most favored class of the military,"" and, further, by providing that at any future period of war or public danger, when their employment should be authorized by Congress, they should enter and remain in the Army on the same footing and with the same rights as the permanent establishment. APPLICATION OF THE ABTICLE. It is manifest from its terms, and has indeed been specifically so held by the Judge Advocate General" and the Attorney General," that the Article is operative only at a period when regular and volunteer officers are serving together in the army as " distinctive classes of commissioned officers." The Article has therefore no present application; and now that all claims of officers of the army to pay, rank, &c., by virtue of their volunteer service, are practically settled, the principal significance of the statute is that which attaches to Its history. One HuNDBEn and Twenty-fotjeth Abticle. ORIGIN AND EFFECT. The origin of this provision is to be found in the Resolution of Congress of November 4, 1775, cited under the 123d Article, and in Art. 2, Sec. XVII of 1776, reenacted in Art. 98 of 1806. Its effect is to subordi- nate militia officers, as to precedence, relative rank, and relative right of com- mand, to officers both of regulars and volunteers, on all occasions of their serving jointly with the latter. As contained in the present Article, this provision is but a reiteration of the law which, existing from the initiation of the Government, has classed the militia as the inferior element of the available military strength of the nation." DETERMINATION OF RELATIVE RANK UNDER THE FOREGOING ARTICLES. Questions of relative rank arising under the three 1183 preceding Articles can — it may be remarked — ^be determined by military superiors, courts-martial, courts of inquiry, &c., only by a reference to the Army Register, or — where the rank is not stated or does not fully appear therein — to the date of the commission or appointment under which the officer is at the time serving, Claims for higher relative rank, or for priority in rank, not assigned to them by the Register, have not unfrequently been raised by officers, (especially of the staff corps,) and in some instances with good reason and justice. Such claims have in certain cases been adjusted by the Secretary of War, (after a reference sometimes to Boards of Officers for report and opinion;) but, commonly, involving, as their settlement must In general do, questions as to vested rights of others than the claimants, the latter have been referred to Congress for the relief sought. That such claims cannot be adjudi- cated by military courts or commanders, is quite clear. For this reason, and because the same are usually determined not by fixed principles but by the facts and circumstances of each particular instance, this class of questions will not here be discussed. " And see Art. 124, where regular and volunteer officers are assimilated In their rela- tions to militia officers. "Digest, 636. , "15 Oplns., 333. » As already Indicated, the Act of March 2, 1867, c. 159, s. 2, In assimilating volunteers to regulars, as to their rights and privileges, takes care by an express proviso to exclude the militia from any sucb relation. MILITAEY LAW AND PRECEDENTS. 761 XXX. THE ONE HUNDRED AND TWENTY-FIFTH ONE HUNDRPn XJ™'''''™' ^""'^ ^'''^ ^™°^^^ ^^ twentySSveSJh [Disposition of Effects of Deceased Officers and Soldiers.] J'^I; ^^: ^" ""'^ °^ ^''^ ''^""^ "^ "'^^ ''^^^^' ''^^ "^"^""^ 0^ hi^ regiment, or the officer domg the major's duty, or the second officer in command at any post or garrison, as the case may he, shall immediately secure all his effects then m camp or quarters, amd shall make, and transmit to the office of the Department of War. an inventory thereof. "Abt. 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, make an inventory thereof, which he shall transmit to the office of the Department of War "Aet. 127. Officers charged with the care of the effects of deceased officers or soldiers shall account for and deliver the same, or the proceeds thereof 1184 to the legal representatives of such deceased officers or soldiers. And no officer so charged shall be permitted to quit the regiment or post until he has deposited in the hands of the commanding officer all the effects of such deceased officers or soldiers not so accounted for and delivered." These Articles will be considered together. ORIGINAL AND OTHEK PROVISIONS. The substance of these Articles is traced by Samuel " to the ordinances of the Tudors and Stuarts." He notes the fact that at an early period courts-martial were invested with a peculiar probate jurisdiction in the matter of the administration of the estates of miU- tary persons,""— a jurisdiction of which a vestige is perceived in the require- ment of our own original Articles on the subject, that the inventory of a de- ceased officer's effects should be made "before the next regimental court- martial." In the existing British law, the specific provisions from which ours were taken have some time disappeared from the military code, having been super- seded by a separate Act of Parliament, vie. the 26th and 27th Vict., c. 57, of July 21, 1863, known as the " Regimental Debts Act," in aid of which separate Regulations were issued by the Crown on April 22, 1881."" In our law, the matter of the disposition of the effects of deceased military persons formed the subject of Arts. 68 and 69 of 1775, Arts. 1 and 2 of Sec. XV of 1776, and Arts. 94 and 95 of 1806. The Articles under consideration are supplemented by regulations contained in Arts. XIII and XXII of the Army Regulations. APPLICATION or THE ARTICLES. These Articles, doubtless enacted with a view mainly to instances of officers or soldiers dying either in active service in war, or at remote posts or strictly military stations, were apparently intended to apply to cases of officers of regiments and soldiers of organized companies. They are, however, directory, only, and, by liberal constnic- 1185 tion, are operative in cases of any other officers serving, at their decease, in the field or with a "post or garrison" command. So where soldiers who die when similarly serving are not members of a company, it will be within the spirit of Art. 126 for the commanding officer, whether or not a company commander, to proceed as therein specified. "•Pages 656, 657. And see Clode, 1 M. F., 213. " See Art. 59 of the Code of James II, in Appendix. Similar provisions were also con- tained in the Articles of the Earl of Essex, of 1642, and those of Charles II, of 1666. "O'Brien, (p. 157,) repeats Samuel. " The Act and Begulatlons are to be found in the Manual, pp. 633-652, 762 MILITARY LAW AND PEECEDENTS. It need not affect the substantial application of the Articles that the officer 01" soldier deceases when temporarily absent from his regiment, company, &c. Such cases appear to be contemplated by pars. 82 and 151 of the Army Regu- lations. The cases to which the Articles are least adapted to apply are such as those of officers or soldiers of staff corps, or aids of generals, serving at Washington, at Division or Department headquarters, or at stations which are not military posts, and officers or soldiers on the retired list. In such and similar Instances, the estate, real and personal, of the deceased, while, if necessary, it may prop- erly be placed in temporary charge of an officer of the command, will, regu- larly, presently be disposed of according to the laws of the State, Territory, or District, in which the party deceased or resided, or in which the property may be situate or held. THE DUTIES ENJOINED. These consist in the securing of the effects, the making and transmitting of an Inventory, the taking care of the property, and the accounting for and delivery of the same to the proper legal representa- tive. A further duty is devolved upon the officer in charge of the effects, to turn them over, in the event of his absenting himself from the command, to the commanding officer. Securing the effects. The term " secure " properly means to collect an(^ take into safe possession. The officer designated for the duty will thus take charge forthwith of such articles of property as were in the personal possession of the officer or soldier at his decease, as also of such as, being in the possession of others, are voluntarily surrendered, or may be reached by means of an order requiring their delivery or if necessary by the use of military force. He may also, as is remarked by O'Brien," receive money voluntarily paid in satls- 1186 faction or partial satisfaction of debts due the deceased. But the officer is merely performing a military duty ; he is in no sense an administrator. He has therefore no authority to institute an action at law for the recovery of a debt due the estate or property vsathheld therefrom :" should he assume such a responsibility, he might render himself personally liable for the amount in- volved, in whole or in part, as an " executor de son tort " " — a result which the Articles clearly could not have contemplated. The effects indeed which are required to be secured are such as are " then in camp or quarters." As to the meaning of' these words, as employed in the corresponding British Articles, Hough " cites an opinion, given in 1819, by the law officers of the Crown, to the effect that the term refers only to movables or money actually found in quarters, " and not to effects, debts, or money In the hands of third persons." The officer will thus fully perform his strict duty under the Articles if he simply " secure " the immediate tangible personal effects of the deceased." Making and transmitting the inventory. The inventory is of course a de- tailed list of the specific effects of the deceased — clothing, furniture, valuable papers, jewelry, arms, animals and all other articles of personal property left by him in camp or quarters at his death. It should be subscribed by the officer making it, in his official capacity ; and, in compliance with the direction of Art. 126, the inventory of the effects of an enlisted man should be made and executed " Page 187. " See Samuel, 659 ; O'Brien, 157. " An executor de son tort, (or of his own wrong,) Is one who, by intermeddling without legal authority with the estate, subjects himself to the liability of a regular legal repre- sentative. " Page 556. " As to the proceedings on the death of an officer charged with public property or money, see par. 85, Army Regulations. MIUTABY LAW AND PRECEDENTS. 763 « In the presence of two other officers," who also will properly affix their names to the paper as witnesses. Directions as to the making up and' forwarding of inventories are contained in pars. 83 and 151 of the Army Regulations. Taking care of the property. " Care " means properly the safe custody and preservation of the articles as secured. The officer, not being an adminis- 1187 trator, is not authorized to pay, out of the efCects, any debts of the de- ceased, or even the expenses, (if such are incurred,) of his funeral:" if he does so, he subjects himself to a personal liability for the pecuniary amount thus diverted." The question of the authority to sell property in any case will be referred to under the next head. The period during which the care of the specific effects is in general to be exercised is limited by the Begulations" to " two months " in the case of an officer ; in the case of an enlisted man it is evidently contemplated that It will be brief." Accounting. Art. 127 enjoins that "officers charged with the care of the effects of deceased officers or soldiers shall account for and deliver the same, or the proceeds thereof, to the legal representatives of such deceased." The legal representative of a deceased officer or soldier is the executor, if any, nominated by him in his will," or — where there is no will, or no such nomina- tion — the administrator appointed by the proper judge of probate, surrogate, or other authorized official. The representative must of course have been duly qualified, and the officer will not ordinarily be justified in surrendering the property to a person assuming to be the legal representative of the deceased, except upon his exhibiting formal letters testamentary granted to him by com- petent authority. The words "or the proceeds thereof," which do not appear in the earlier forms of the Article, are deemed to have reference primarily to the proceeds of the sales, directed or authorized by pars. 84 and 152 of the Regulations to be resorted to after a certain interval, provided that legal representatives 1188 do not meanwhile appear. Otherwise, i. e. pending such interval, a sale should not be made except in an extreme instance. Where indeed, on account of some military movement or other emergency, the property, or any part of it, cannot be removed or longer cared for, or where it is perishable in its nature and cannot be kept without serious damage, the Article may be re- garded as authorizing its sale and 'conversion into money in the interest of those entitled. The officer in charge, however, should not in general resort to a sale, other than as indicated in the Regulations, without the approval of the proper commander. In duly turning over the specific effects or their proceeds to the administrator or executor, the military agent is discharged of his responsibility. He will projmrly of course take formal receipts In full for the articles or moneys delivered." '" As to the transportation of remains, burial, and payment of expenses of burial, see 6. O. 29 of 1891, amending pars. 86, 155, A. E. " " It would be at the private responsibility of the officer, if he further intermeddled with the estate of the deceased than he is of necessity authorized by the Articles, In the particulars ordained." Samuel, 659. In Memo., Dept. of the Columbia, March 23, 1873, Gen. Canhy observes that the officer in charge, being " a quasi administrator, may prop- erly make such expenditures as may be necessary to prevent waste or loss until the effects are taken charge of by the family, or a legal administrator is appointed." But, as we have seen, the officer is in fact not an administrator nor assimilated to one, and he could not In general therefore make such expenditures except at his own risk. "Par. 84. ™See par. 152. " As to the effect of testacy, see pott, " See par. 154, A. B. 764 MILITARY LAW AND PRECEDENTS. THE EFFECT OF TESTACY. It may be observed in conclusion that the mere fact that the deceased officer or soldier has left a will, is not, (as has already been Indicated,) to be regarded as dispensing with the proceedings prescribed by the Articles. Even if the vyill be only a nuncupative one," 1189 a legal representative must in general be appointed and qualified before the estate can be disposed of or distributed. If indeed the deceased has bequeathed his property, (being of material value,) to a comrade or friends in the same command, and such command Is so situated that the legatee or some other person present may, with but slight delay, obtain from proper authority the right to administer, it may perhaps be superfluous to resort to the precautions pointed out in the Articles. But even In such a case It will be rare that the local law will allow so speedy an Issue of letters testamentary as to do away with the necessity of securing the effects in the manner Indicated by the military code. XXXI. THE ONE HUNDRED AND TWENTY-EIGHTH ARTICLE. [Reading and Observance of the Articles of War.] "Abt. 128. The foregoing articles shall be read and puhlished, once in every six months, to every garrison, regiment, troop, or cotnpany in the service of the United States, and shall be duly observed and obeyed by all officers and soldiers in said service." PREVIOUS FORMS. Art. 101 of 1806 was substantially Identical with the present form of this provision. A previous Article — ^No. 1 of Sec. XVIII of 1776 — -was to a similar effect, except that the reading was required to be done "once In every two months." A like requirement was contained in the corre- sponding British Article of 1765. It was required in the Code of Gustavus Adolphus that the articles " be read every month publicly before every regi- ment, to the end that no man shall pretend ignorance." " A " nuncupative " will, (from the Latin nuncupare, to name or pronounce orally, or without writing,) is an oral declaration of a bequest of his personal property, made in extremis, in the presence of witnesses or a witness, by an officer or soldier in actual military service, or by a mariner at sea. [In some States it is specially authorized to be made by other persons on occasions of mortal illness.] Nuncupative wills, which are said to have been first permitted by Julius Caesar to his Roman soldiers, were, at an early period, adopted from the civil by the common law, and have been generally recog- nized and sanctioned by modern statute. The term — " in actual military service," com- monly employed in the statutes on the subject, has been construed to mean on some duty associated with positive danger, as at a battle, or during a hostile movement or expedition in time of war. The fact appearing that the declaration was made upon an occasion of this character, and also that the party, being conscious and in sound mind, made it as his will, or with the animus testandi, and in expectation of death, — the formalities usually required for the authentication of written wills are dispensed with in the proof of the nuncupative will. The same is therefore established simply by the testimony of the person or persons present who heard the words of direction and can faithfully repeat them or their substance. There need have been but a single witness, and he need not have been specially requested to act as such by the testator. But, as It Is observed by Blackstone, the act of nuncupation " must not be proved at too long a distance from the testator's death, lest his words should escape the memory of the witnesses." For particulars of the history and law of nuncupative wills, see Eedfleld on the Law of Wills, c. 6, s. 2 ; 1 Jarman on Wills, 130-1 ; 2 Black. Com., 500-1 ; Swinburne on Wills, part 1, § 14. Prendergast, 527-231 ; Clode, 1 M. F., 212 ; Hub- bard V. Hubbard, 4 Seld., 196 ; Ex parte Thompson, 4 Bradf., 154 ; Prince v. Hazeltqn, 20 Johns., 501 ; Dockum v. Robinson, 6 Fost., 372 ; Gould v. Safford's Estate, 39 Vt., 498. It may be added that the policy of the law which sustains nuncupative wills will also often sustain written wills, executed by officers or soldiers and seamen under the circum- stances above indicated, but without the formalities prescribed by statute — as, for example, wills not attested by the requisite number of witnesses. [See the above authorities.] MILITABY LAW AND PBECEDENTS. 765 1190 EFFECT. This Article, which is a complement of the provision of Art. 2, requiring that the Articles " shall be read to every enlisted man at the time of, or within six days after, his enlistment," " enjoins a further readini at fixed intervals as a regular ceremonial of the service. It is clear that where the reading is not thus reiterated, the ordinary soldier can hardly be expected to remain familiar with all the requirements of the code.™ In some instances during the late war, where the reading had been neglected in a command, it was ordered that the Articles, or at least the principal ones, be read oftener than here prescribed, viz. once a week," or — in -one case °° — twice a week. Sen- tences of soldiers tried by court-martial have not unfrequently been mitigated for the reason that the accused had not been sufficiently made acquainted with the Articles ; " and the failure properly to read them on the part of commanders has been denounced as a military offence." Certainly if the reading is not per- formed according to the first part of the Article, the observance of and obedience to the code required by the concluding clause can scarcely, especially in a com- mand of which the components have been materially changed within the period indicated, be fully ensured. It may be added that where there are enlisted men in a command who are but imperfectly acquainted with the English language, a complete compliance with the injunction of this Article will require that the Articles be not only read to them but, where necessary, specifically explained. 1191 XXXII. CONCLUDING PROVISION— SEC. 1343, REV. STS. [Trial and Punishment of Spies.] " Sec. 1343. All persons who, in time of war, or ofreiellion against the supreme authority of the United States, shall he found lurking or acting as spies, in or about any of the fortifications, posts, quarters, or encampments 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, suffer death." EARLIEB FOEMS. Our military codes prior to that of 1806 contained no provision for the punishment of spies, nor was any contained in the British code from which our earliest Articles were derived. The first legislation In this country on the subject was the Resolution of the Continental Congress, of Aug. 21, 1776, as follows : — " Resolved, That all persons, not members of, nor owing allegiance to, any of the United States of America, * * * who shall be found lurking as spies in or about the fortifications or encampments, of the armies of the United States, or of any of them, shall suffer death, according to the law and usage of nations, by sentence of a court-martial, or such other punishment as such court-martial shall direct." " This was the law in force during the Revolu- »"And note the injunction of Art. 1, that " every officer shall, before he enters upon the duties of his office, subscribe these Rules and Articles." s^G. O. 20, Dept. of the Mo., 1861. " G. O. 12, Army of the Potomac, 1861. Do. 41, Dept. of the Ohio, 1866. " G. O. 26, Dept. of the South, 1864. In this Order it was added — " one reading to he on Sunday, and, where practicable, by the chaplain." M G. O. 31, Dept. of the East, 1868 ; G. C. M. O. 73, Id., 1872 ; Do. 25, Dept. of Texas, 1874; Do. 2, Dept. of Arizona, 1888. And see G. O. 23, Army of Occupation, W. Va., 1861 ; Do. 49, Dept. of the Susquehanna, 1864. "G. 0. 14, Dept. of the Ohio, 186.5. See case of Lt. Col. Broughton, (Simmons § 621,) charged with falsely certifying on the monthly returns of his regltaent, " that he had read the articles of war to the men under his command." " 1 Jour. Cong., 450. It was further " Ordered, That the above Resolution be printed at the end of the Bules and Articles of War." 766 MILITAET LAW AND PEBCEDBNTS. ttonary war, and at the time of the trials of Major Andr6, Lieut. Palmer, and others hereinafter mentioned. The next specific enactment," that of 1806, formed the concluding provision of the code of Articles of war of April 10 of that year, being in fact sec. 2 of the same Act of Congress. It provided : — " That in time of icgf all persons not citi- zens of or owing allegiance to the United States of America, who shall be found lurking as spies in or about the fortifications or encampments of the armies of the United States, or of any of them, shall suffer death according to the law and usage of nations, by sentence of a general court-martial." 1192 This statute, except in so far as to confine the trial of spies to general courts and to make the death penalty obligatory in all cases of convic- tion, did not materially modify the original form. Citizens — as noticed in the case of Smith v, Shaw in 1814"° — remained still unamenable for the crime of the spy. The law continued without chauge till the period of the late rebellion, when the Article of 1806, being Inadequate to the conditions of the exigency, was amended by the Act of Feb. 13, 1862, c. 25, s. 4, so as to read as follows : — " That in time of war or rebellion against the supreme authority of the United States, all persons who shall be found lurking as spies, or acting as such, in or about the fortifications, encampments, posts, quarters, or headquarters of the armies of the United State, or any of them, within any part of the United States, which has been or may be declared to be in a state of insurrection by proclamation of the President of the United States, shall suffer death by sentence of a general court-martial." By this provision, the jurisdiction for the trial of the specific offence was ex- tended for the first time to citizens of the United States ; the general term " all persons " being now evidently left unqualified for the purpose mainly of embrac- ing the class which would naturally furnish the greatest number of offenders, viz, officers and soldiers of the confederate army and civilians in sympathy therewith. The jurisdiction indeed was confined to offenses committed in parts of the United States declared to be in insurrection. " This restriction, however, was soon done away with, and the jurisdiction made general — i. e. applicable to offences committed anywhere in the United States, or in another country during a foreign war — by the Act of March 3, 1863, c. 75, s. 38. This enact- ment, (which made the crime cognizable also by military commission,) was expressed in the form and terms retained in the existing law — Sec. 1343, 1193 Eev. Sts., above cited. While the provision of 1863 did not expressly refer to that of 1862, as amended or repealed, it clearly entirely super- seded it. BEPINITION OF SPY — NATtTRE AND PROOF OF THE OFFENCE. A spy is a person who, without authority and secretly, or under a false pre- text, contrives to enter within the lines of an army for the purpose of obtain- * Meanwhile a Kesolutlon of Feb. 27, 1778, had declared that any " Inhabitant of these States," who, by giving intelligence, &c., should aid the enemy In the killing or capturing of loyal citizens, should " suffer death by the judgment of a court-martial, as a traitor, assassin, or spy." 2 Jour. Cong., 459. The designation — " spy," however is Inaccurately employed in this connection. ">12 Johns., 265. And see Elijah Clarke's Case, (1813,) Maltby, 35; Louaillier's Case, Guyarr^, Hist, of La., vol. IV, p. 605 ; Ex parte MilUgan, 4 Wallace, 44 ; G. 0. 39, Dept. of the Mo., 1863. ^ See case, In G. O. 39, Dept. of the Mo., 1863, of an alleged spy, whose offense was committed In Missouri prior to the date of the statute nest to be mentioned, and In which it was properly held that the court-martial ordered for the trial had no Jurisdiction of the offender. MILITARY LAW AND PKECEDENTS. 767 Ing material Information and communicating it to the enemy ; or one who, being by authority within the lines, attempts secretly to accomplish such purpose." The information is commonly such as relates to the numbers or resources of the enemy, the state of his defences, the positions of his forces, military or naval,'" their proposed movements or operations, and the like. The oUndestme character of his proceedings and the deception thus practised constitute the gist or rather aggravation of the ofeence of the spy." The> statute refers to him as " lurking ;" and Halleck describes him as " insinuating himself among the enemy." The concealment is in general contrived by his disguising him- self by a change of dress," by assuming the enemy's uniform," by coloring the hair," removing the beard or wearing a false one, assuming a false name," &c. ; as also by false representations, by personating another individual," or by any other false pretence or form of fraud. During the recent war the majority of the persons tried and convicted as spies were officers or soldiers 1194 of the enemy's army, who, In penetrating our lines, had abandoned their proper uniform for the dress of a civilian i^" and it was held that such an officer or soldier, discovered thus disguised, was in general to be treated, not as a prisoner of war, but as being prima facie a spy.' This presumption, however, might— it was ruled"— be rebutted by evidence that the party had come within the lines for a comparatively innocent purpose — as to visit hig family ; qr, having been detained within the lines by being separated from his regiment, &c., on a retreat, had changed his dress merely to facilitate a return to the other side.' In such a case indeed the clearest proof would properly be required before accepting the defence. But to be charged with the offence of the spy, it is not essential that the accused be a member of the army or resident of the country of the enemy: he may be a citizen or even a soldier of the nation or people against whom he offends, and, at the time of his offence, legally within their lines.* So he may either be an emissary of the enemy ^ or one acting of his own accord. "' Project of Brussels Conference, Art. 19 ; Bluntschll § 629 ; Halleck, Int., Law., 460 ; Lieber, Instructions, G. O. 100 of 1863, § 88, Manual of Mil. Law, 270 ; G. O. 13, Dept. of the Mo., 1861 ; Do. 39, Id., 1863 ; Do. 23, Dept. of Kans., 1864. •• Note the case of Samuel Stacy, arrested In July, 1813, by Commodore Isaac Chauncey of the Navy, for spying upon our fleet at Sackett's Harbor, and glTlng Information to the enemy. In re Stacy, 10 Johns , 328. " Authorities cited In last note ; also Digest, 708 ; G. O. 174 of 1862 ; Do. 74, Dept. of the Ohio, 1863. " In a case in G. O. 92, Dept. of the Ohio, 1864, a female spy, when arrested, was disguised as a man. " Cases of " Col. Williams " and " Lieut. Dunlop " of the Confederate army. VII Rebellion Record, 6, 287. " Case of S. B. Davis alias WiUoughby Cummings. See Digest, 709. •»See cases In G. C. M. O. 215 of 1864; 6. O. 24, Dept. of the East, 1865, (case of Kennedy;) Do. 92, Dept. of the Ohio, 1864; also Andres case, Printed Trial, Philad., 1780; 2 Chandler Crlm. Trials, 157. * Case of Williams and DunloP. ante, who personated a Colonel and Major of our army sent to Inspect outposts. 1" See cases in G. O. 267, 269, of 1863 ; Do. 5, 41, of 1864 ; G. C. M. O. 93, 152, 248, of 1864, G. O. 57, Middle Dept., 1863; Do. 3, Dept. of the Ohio, 1864; Do. 14, Dept. of the East, 1865, (case of. Beall;) Digest, 709. So, Major Andr4 was disguised in a suit of clothes belonging to Joshua Hett Smith. 2 Chandler, C. T., 1851" 1 See Lieber's Instructions § 83 ; Digest, 708 ; G. O. 30, Dept. of the Mo., 1863 ; Do. 21, Middle Dept., 1863; Do. 23, Dept. of Va. & No. Ca., 1863; Do. 74, Dept. of the Ohio, 1863 ; Do. 10, Dept. of the Tenn., 1863 ; Do. 23, Dept. of Kans., 1864. 'Digest, 706. And see G. C. M. O. 110 of 1864. ' See case in G. O. 59, Dept. of the Susquehanna, 1864. * See case in G. O. 26, Dept. of Va. & No. Ca., 1864, of a soldier, of the federal army convicted as a spy. ^Thacher, Mil. Jour., 195, refers to "three emissaries from the enemy," tried and hanged as spies in New Jersey in 1780. 768 MILITAEY LAW AND PRECEDENTS. Beside the coining within the hostile lines without authority, being in disguise,' making false representations, &c., a most significant circumstance going to. fix upon the suspected person the animus of the spy is the concealment of important papers or written information,' or the destruction or attempted destruction 1195 by him, upon being detected, of letters, dispatches, or other writings in his possession, containing information for the enemy." So, of the present- ing of forged or false orders purporting to be issued by the commander of the army to which the spy pretends to belong.' Another suspicious circumstance is an attempt to bribe the arresting party to allow him to proceed." But to prove him to be a spy, it is not necessary that the accused should be shown to have communicated, or even to have obtained, the desired information, or any Information whatever." The fact that he was " lurking " or " acting " with intent to obtain material information, to be communicated by himself or another to the enemy, is all that is required to complete the ofEence." Further, it is not necessary that the spy should be within the lines without authority." One who, being legally admitted under a flag of truce, abuses his privilege by secretly collecting facts for the use of the enemy, renders himself liable to the punishment of the spy." Such was the situation in the case of Andrg, who, moreover, held a passport from Arnold. But this could not protect him from being treated as a spy, since, having been given by one who was in criminal complicity with him, it was null and void as a safe-conduct.*" 1196 MERE OBSERVATION OF THE ENEMY NOT THIS OFFENCE. It need scarcely be added that the mere observing of the enemy, with a view to gain intelligence of his movements, does not constitute the oltence in question, for this may be done, and in active service is constantly done, as a legitimate act of war. As remarked in the Manual — "An officer in uniform, however nearly he approaches to the enemy, or however closely he observes his motions, is not a spy, and though taken, while thus observing, ' within the zone of operations of tlie enemy's army,' must be treated as a prisoner of war." " "In G. O. 10, Dept. of the Tenn., 1863, General Grant orders that guerillas or southern soldiers, " caught within our lines in Federal uniform, or In citizen's dress, will be treated as spies." ' Thus Andr^ carried official returns of the forces and state of the defences at West Point, concealed in his boots. In May, 1863, a " Miss Hozier " of Suffolk, Va., was ar- rested while attempting to pass our lines and reach Richmond. Concealed " in the handle of her parasol " were diagrams and papers describing the fortifications near Suffolk, and giving the strength of their garrisons. VI Rebellion Record, 77. ' Case in Digest, 709 § 3. A well-remembered Instance is that of Daniel Taylor, who, upon his apprehension, after the capture of Forts Montgomery and Clinton, in October, 1777, swallowed a silver bullet which contained a dispatch from Sir Henry Clinton to Burgoyne. • Williams and Dunlop, (see ante,) presented forged orders purporting to be signed by Gen. Rosecrans and Adjt. Gen. Townsend. '" This was a feature in the case of Andr£. " Lieber's Instructions S 88. " See the definitions above cited ; also case in G. O. 92, Dept. of the Ohio, 1864. " See G. O. 346 of 1863. "Lieber's Instructions § 114. " See Halleck, 408. A false passport given for the purpose of concealing the identity of the party was a feature in the case of Kennedy. G. O. 24, Dept. of the East, 1865. " Page 270. So Halleck, (p. 406,)—" Tie ternr spy is frequently applied to persons sent to reconnoitre an enemy's position, his forces, defences, &c., but not in disguise or under false pretences. Such, however, are not spies in the sense in which that term is used in military and international law." And see Project of Brussels Conference, Art. 22, A species of quasi " monomania " for discovering spies in persons who are not such has sometimes been observed in modern armies. Bluutschli i 629 ; Do. French version by Lardy- id. MILITABY lAW AND PRECEDENTS. 769 Observing the enemy from a balloon is no more criminal than any other form of reconnoissance." OFFENDERS WHO ARE NOT SPIES. The nature of the crime of the spy may be further Illustrated by indicating certain classes who, though guilty of a violation of the laws of war, and punishable therefor, are not chargeable as spies. Thus one who passes the lines without authority as a mere letter car- rier, is not a spy;"* nor is one who merely violates the rule of non-intercourse by. trading with the enemy, or who simply gives intelligence to the enemy in violation of Art. 46. And so one who comes secretly within the lines with a view to the destruction of property, killing of persons, robbery, and the 1197 like, is not as such a spy." Further, a person who without authority passes through the lines as a bearer of dispatches from one post or force of the enemy to another,"" is as such not to be treated as a spy but to be held as a prisoner of war," JURISDICTION. A spy, under capture, is not treated as a prisoner of war but as an outlaw, and is to be tried and punished as such. Under the law of nations and of war, his offence is an exclusively military one, cognizable only by military tribunals." In our law, as we have seen, an express statute has, since August, 1776, made this crime triable by court-martial, and since March, 1863, jurisdiction of the same has been given also to the military commission, a species of tribunal to be considered in Fast II of this treatise. "Project of Brussels Conference as cited in last note; also Manual, Inst. Int. Law, Part II, 24; and Hall, (Int. I/aw,) 464. Note the Interesting case, cited by Bluntschli {632 iiSj of the Englishman, Worth, captured after leaving Paris in a balloon, in Octo- ber, 1870, and brought before a German court-martial and acquitted. " See cases In G. O. 39 of 1864, of persons erroneously charged as spies, who were simply arrested in our lines with letters from persons in Virginia, &c., to persons in Baltimore and elsewhere. Persons arrested carrying letters to enenries, however, would not be liable to be charged as spies, If they were letter-carriers merely, "In the leading cases of Beall and Kennedy, though the accused were charged and convicted, inter alia, as spies, their offences were rather those of violators of the laws of war as "prowlers," (lileber's Instructions § 84,) or guerillas ; .the crimes of Beall con- sisting mostly in seizing and destroying steamers and their cargoes on Lake Erie, and attempting to throw passenger trains off the track in the State of New York, in Septem- ber and December, 1864 ; and the principal crime of Kennedy being his taking part in the attempt to burn the City of New York by setting Are to Barnum's Museum and ten hotels on the night of Nov. 25th, 1864. (G. O. 14, 24, Dept. of the East, 1865 ; Printed Trials, New York, 1865.) " See Lieber's Instruction § 99. It was held in the late war that carrying communi- cations between the confederate government in Richmond and its agents in Canada, did not entitle the party to be treated as a legitimate bearer of dispatches. Digbst, 709. » In the Manual, Inst. Int. Law I 24, it is declared — " Persons belonging to a bel- ligerent armed force are not to be considered spies on entering, without the cover of a disguise, within the area of the actual operations of the enemy." And so of " messengers who openly carry official dispatches." Or, as It is expressed in the Project of the Brus- sels Conference, (Art. 22,) — " Military men and also non-military persons, carrying out their mission openly, charged with the transmission of dispatches either to their own army or to that of the enemy, shall not be considered as spies if captured." See cases of persons charged as spies, but held not shown to be such and therefore entitled to be treated as prisoners of war— in G. O. 174 of 1862 ; Do. 228, 243, 346, of 1863 ; Do. 7, Army of the Potomac, 1864. Daniel Strong, executed as a spy at Peekskill, In 1777, was more properly chargeable with the distinct offence of enlisting men within our lines in violation of the laws of war. On his apprehension, " enlisting orders were found sewed in his clothes." Thacher, Mil. Jour., 74. So the case of Daniel Taylor, (ante,) was not properly a case of a spy but of a bearer of dispatches in violation of the laws of war. » Smith V. Shaw, 12 Johns., 267 ; In re Martin, 45 Barb., 142 ; Do. 31 How. Pr., 228. 440593 0-42-49 770 MILITARY LAW AND PRECEDENTS. It has always been legal, however, ana wobM still be so In time of war 1198 notwithstanding the statute, to proceed summaHVy without trial against spies ; and in some of our earlier cases— that of Andr6, for example — the investigation was had, not by a court-martial, but by a court of Inquiry or board ordered for the purpose, upon whose report, if to the effect that the accused was found to be a spy, the death penalty was presently executed. Modern codes, however, call for a trial of the offender. Thus in the Manual of the Institute of International Law, of 1880, one of the most complete of the projets of the laws of war, it is said (§ 25)— "To guard against the abuses to which accusations of acting as a spy give rise in time of war, It must clearly be understood that—" No person accused of ieing a spy can be punished without trial." ^ „ - Special principles. A military court, in passing upon a case of an alleged spy, is to be governed not only by the ordinary rules of evidence but by the principles established by the usages of war as recognized in the law of nations. Of the latter there are to be notlced.two Jurisdictional principles peculiarly appli- cable to cases of spies,, to wit : — 1. A spy, to be triable and punishable as such, must be taken in flagrante delicto, or rather before he succeeds in getting through the lines and returning to the territory or army of his own nation or people. If he thus makes good his return without being arrested, the Jurisdiction for his offence does not attach but lapses, and if, subsequently to such return, he is taken prisoner in battle or otherwise captured, he is not liable to trial or punishment for the original offence.* 2. Further, a spy, to be punished as such, must be brought to trial and 1199 convicted during the existence, t. e. before the end of, the war." Thus, in the case of Robert Martin, above cited, it was held that as the aUeged offender had not been arrested as a spy till after the surrender of the Con- federate armies and the termination of hostilities," he was not subject to trial by a military tribunal; and he was accordingly discharged on habeas corpus from the custody of the military authorities. But, as will be noticed In a subsequent part of this treatise," this second principle is not peculiar to the case of the spy alone, but applies to other cases of persons offending in time of war against the laws of war. PtTNISHMENT. By the law of nations the crime of the spy is punishable with death,^ and by our statute this penalty Is made mandatory upon conviction. Such penalty may be executed either by shooting or hanging. The sentence " to " So, in the case of Thomas Shanks, 6. O. Army Headquarters, June 3, 1878. » As to the form of investigation in Andre's case, see Chapter XXIV, " Courts oi' In- QUIHY." "Project of Brussels Conference, Art. 21; Manual, Inst. Int. Law S 26; Lleber's In- structions i 104; In re Martin, ante; Digest, 710; G. O. 24, Dept. of the Bast, 1865, (Kennedy's case.) But he will be liable upon such re-oapture, to be subjected to a closer surrelUance. Bluntschli § 633. In Kennedy's case the point Is properly taken that tor an alleged confederate spy to have escaped, without arrest, into Canada, (where there were agents of his government,) was not such a return as to have discharged him from liability to trial add punishment for his offence. ■• In re Martin, 45 Barb., 142 ; Do. 31, How. Pr., 228 ; Wells, Jur. of Courts, 677. " This was the view of the court at the time. As a matter of fact, the war, at the date of Martin's arrest, (December, 1865,) had not yet ended — according to the subBequent rulings of the Supreme Court, heretofore cited. See under Fiftt-Eishth Asticlb, ante, p. 669. " Part II — " Jurisdiction of the Military Commission." » Vattel, Book III, p. 179 ; Manual, 270 ; Halleck, 406, 407 ; Lleber sec. 88 ; Smith «. Shaw, ante; In re Martin, antej O. O. 13, Dept. of the Mo., 1861 ; Do. 23, Dept. of KanB., 1864. MILITARY LAW AND PRECEDENTS. 771 be shot " was In a few Instances Imposed during the late war ; " but, In the great majority of cases, the form of death by hanging, as the more ignominious and severe," was adjudged. In some instances, women, (who, by reason of the natural subtlety of their sex, were especially qualified for the rdle of the spy,) were sentenced to be hung as spies, though in their case this punishment was rarely if ever enforced." In a considerable proportion of the other cases 1200 the capital punishment adjudged was executed, and commonly on the next day or within a brief period after the approval of the proceedings." It may be observed, however, that the extreme penalty is not attached to the crime of the spy because of any peculiar depravity attaching to the act. The employment of spies is not unfrequently resorted to by military commanders, and Is sanctioned by the usages of civilized warfare ; " and the spy himself may often be an heroic character. A military or other person cannot be required, by an order, to assume the office of spy ; he must vohmteer for the purpose ; " and where so volunteering, not on account of special rewards offered or ex- pected, but from a courageous spirit and a patriotic motive, he generously ex- poses himself to imrathent danger for the public good and is worthy of high honor." Where Indeed a member of the army or citizen of the country assumes to act as a spy against his own government in the interest of the enemy, he Is chargeable with perfidy and treachery, and fully merits the punishment of hanging ; " but — generally sfieaking — the death penalty Is awarded this crime because, on account of the secrecy and fraud by means of which it is consum- mated, it may expose an tfi-ijiy: without warning, to the gravest piril ; and, as Vattel " observes, " puisgue I'ok m' a Quires d'aiUre moyen de se garahtir du mal qu'ils peuvent faire." » O. O. 174 of 1862 ; Do. 346 of 1863 ; Do. 39, Dept. of the &().; 1863 ; Do. 4, Dept. of Ky., 1865. « See Halleck, 407 ; G. 0. 107, Dept. of the Mo., 1863. «= See cases In G. O. 208, Dept. of the Mo., 1864 ; Do. 92, Dept. of the Ohio, 1864, in which the death sentence was " disappiOTed." Other cases of females tried as spies are contained to G. O. 43, 93, 121, Middle Dept., 1864 ; Do. 102, Dept. of Va. & No. Ca., 1864 ; Do. 14, Dept. of the Mo. 1865. "As in the case of Andr§ and that of Palmer (see post). And compare case to Q. O. 8, Mid. Mil. Dept., 1865, also case In Do. 92, Dept. of the East, 1864, where It Is an- nounced by Gen. Dix that a certain class of alleged spies will, upon conviction, " be executed without the delay of a single day." In a case in G. O. 58, Dept. of Va. & No: fcL; 1864, It was ordered that the sentence of hanging be executed as near as practicafiie to' the place of the arrest, " for the purpose of the example." » Vattel, Book III, p. 179 ; Halleck, 406. "Halieek, 406, 409; Manual, 270. "Note the circumstances of the case of Capt. Nathan Hale. Halleck, 407. " in the case to G. O. 26, Dept. of Va. & No. Ca., 1864, of a U. S. soldier convicted as a st>yi the accused was sentenced to be hung, and the sentence was approved and executed. £iieut. Palmer, whose sentence was so summarily executed by (Jen. lE'utnam to 1777, was hH American who had taken a commisBlon to the service of the bnemj. " Book III, p. 179. 1201 AMENDMENTS TO THE CODE. While no general revision of our Code of Articles Is necessary, or, it is believed, desirable, yet, as indicated in the course of this Chapter, the same would, in the opinion of the author, be materially simplified and improved by a few amendments, such as the following : 1. By repealing or dropping as obsolete, superfluous, or otherwise undesirable to be retained— Arts. 1, 25, 29, 30, 52, 53, 54, 55, 76, 87 and 100, and perhaps also Arts. 64 and 94. 2. By consolidating Arts. 5 and 14, and by omitting from Arts. 6 and 14 so much as prescribes the penalty of disability to hold office, &c. 3. By so modifying Art. 45 as to make it read — " Whosoever relieves the enemy with arms, ammunition, supplies, money, or other thing," &c. 4. By omitting from Art. 60 the last clause, making officers and soldiers amenable to military trial after they have become civilians. 5. By re-pIaclng Art. 62, (which specifically includes offences "not mentioned In the foregoing Articles,") in its former position, viz. after the present Art 69, i. e. after all the other Articles which provide for the punishment of desig- nated offences, and renumbering accordingly. 6. By adding to Art. 74 the words—" who shall prosecute in the name of the United States," and dropping Art. 90 altogether. 7. By amending Art. 86, so as to enlarge the power of courts-martial to punish for contempt, especially in cases of witnesses refusing to testify. 8. By so modifying Art. 113, that it shall be in harmony with Arts. 104 and 109 and with the practice as indicated in Par. 1041, A. K. 9. By inserting in Sec. 1361, Rev. Sts., after the words " sentence of court- martial, the words — and not yet duly discharged from the military service. 1202 10. By doing away with the requirement of the Army Regulations that evidence of previous convictions shall be laid before the Court, and re- quiring that such evidence shall be submitted to the Reviewing Commander. [See p. 388.] 11. By amending the existing law so as to allow of the simplifying of the present code of maximum punishments, and the restricting of such code to cases of desertion and a few other of the graver crimes only. [See p. 395.] 772 Part n.— THE lAW OF WAR. 1203 DEFINITION AND DIVISION OF THE SUBJECT. In Part I has been considered Military Law Peopek, or that law, almost wholly enacted or written, by which the Army is governed at all times, in peace as well as in war. As to a few particulars only such as are referred to under Arts. 45, 46, 52, and the statute relating to the offence of the spy, for example — ^has the subject of the Law of War, now to be examined, been heretofore touched upon. By the term Law or Wae is intended that branch of International Law which prescribes the rights and obligations of belligerents, or — more broadly — those principles and usages which, in time of war, define the status and relations not only of enemies — ^whether or not in arms — ^but also of persons under mili- tary government or martial law and persons simply resident or being upon the theatre of war, and which authorizes their trial and punishment when offenders. Unlike Military Law Proper, the Law of War in this country is not a formal written code, but consists mainly of general rules derived from Inter- national Law, supplemented by acts and orders of the military power and a few legislative provisions. In general it is quite independent of the ordinary law. " On the actual theatre of military operations," as is remarked by a learned judge," " the ordinary laws of the land are superseded by the laws of war. The jurisdiction of the civil magistrate is there suspended, and military authority and force are substituted." Finding indeed its original au- 1204 thority in the war powers of Congress and the Executive, and thus con- stitutional in its source, the Law of War may, in its exercise, substan- tially supersede for the time even the Constitution itself — as will be herein- after indicated. The Laws of War, as a distinct canon of the Law of Nations, have of late years, beside their discussion in special treatises, been, collectively or in part, formulated in a series of authoritative publications to which frequent refer- ence will be made. Of these the principal are Lieber's " Instructions for the Government of the Armies of the United States in the field," (1863;') the Geneva Convention (of 1864) "for the amelioration of the condition of the Wounded in arms in the field ; " the Project of the Brussels Conference of 1874 ; and the " Manual of the Laws of War on Land," prepared by the Institute of International Law. (1880.) Of these the first was a most comprehensive •Field, J., in Beckwith v. Bean, 98 U. S., 293. 'Thus in Varner v. Arnold, 83 No. Ca., 210, it Is said by the court, referring to the Constitution pending the late civil war — " Its voice was hushed and Its power suspended, amid the din of arms." And see New Orleans v. The Steamship Co., 20 Wallace, 393, cited under head of " Military Government — Magnitude of the power," post. And com- pare 1 Bishop, C. L. § 57 ; Whiting's War Powers, 49 ; Binney, " The Privilege of the Writ of Habeas Corpus." ' Published in G. O. 100 of the War Department, of April 24, 1863. Lorimer, Institutes of the Ijaw of Nations, vol. 2, p. 303, refers to these Instructions as having " served as a basis for most of the subsequent compilations." 773 774 MILITAKY LAW AND PBECEDBNtS. system, but the two last had the great advantage of coming after the experiences of the Austro-Prussian and Franco-Prussian wars.* The present subject will be considered with reibreace principally to the exer- cise of military authority and jurisdiction under the laws of war, as Illus- trated by the practice of modern wars, and especially by that of our late civil war, in which, owing to the magnitude of the contest and the considerations of policy and humanity involved, belligerent rights were conceded to the enemy much as in the case of a foreign war.' 1205 The subject wiU be divided as follows: I. The Law of War as affecting the rights of our own people. II. The Law of War as affecting intercourse between enemies in general III. The Law of War as specially applicable to enemies In arms. IV. The status of Military Government, and the laws of war thereto pertaining. V. The status of Martial Law, and the laws of war applicable thereto. VI. Trial and punishment of offences under the law of war — the Military Commission. VII. Military authority and jurisdiction under the Reconstruction Acts of 1867. I. THE LAW OF WAR AS AFFECTING THE RIGHTS OF OUR OWN PEOPLE. THE TAKING OB DESTBUCTION OS PEBSONAL PBOPEBTT. Whether and to what extent our armies. In advancing, retreating, or operating within our own territory, in time of war, may lawfully take or destroy private property of our own citizens is a question of necessity. Where there exists an urgent necessity or an Immediate danger, the chief commander, (for such action cannot lawfully be initiated by an inferior,') may be warranted in appropriating, for the use of his army, supplies, material, buildings, animals, vehicles, &c., required for its subsistence, clothing, medical treatment, shelter, transportation, &c., or for its defence against the enemy, or In seizing or destroying such or other property to tirevent Its falling into the hands of the enemy or being availed of by him for attack or defence. The circumstances, however, must be urgent; the exigency immediate, not contingent or remote. Otherwise the taking, &c., is not a legitimate act of war. Is not justified by the laws of war, and the 1206 commander giving the order and those acting under him are trespassers, and it is they, and not the United States, who are liable in damages to the injured party. The law has thus been settled in repeated adjudications, especially in suits growing out of the late war, in the majority of which, however, the taking, &c., was held warranted by the circumstances of the exigency.' ' With tbese may be mentioned tbe Declaration of St. Petersburg of 1868, as to tbe use especially of explosive projectiles in war ; also Les I>>ls de la Guerre — Appel aux Bellig^rants et & la Fresse, 6and, 28 Mai, 1877. Tbese codes or projets have been set fortb in sundry of tbe modern treatises on International Law. They are most fully published by Lorimer, vol. 2, Appendix, 303-428. ' See Tbe Ouachita Cotton, 6 Wallace, 521, and other cases cited under " Licenses to Trade," " Prisoners of War," &c., poat. " It belongs exclusively to the political depart- ments of the lawful government to determine, in cases of civil war, what rights shall be accorded to the belligerents, or what acts of the rebellious government sliall be recog- nized and to what extent." Latham v. Clarke, 25 Ark., 594. " See Terrill v. Ranktn, 2 Bush., 453 ; Hogue i>. Pemn., 3 Id., 663 ; Branner v. Felkner, 1 Heisk., 228 ; Worthy v. Kinamon, 44 6a., 297 ; Huff v. Odom, 40 Id., 395. 'See D. S. v. Pacific R. R., 120 U. S., 227, 239; U. S. v. Russell, 13 Wallace, 623; Holmes v. Sheridan, 1 Dillon, 851, (a case of the taking of beef cattle from a contractor;) Farmer v. Lewis, 1 Bush, 66 ; DUls v. Hatcher, 6 Id., 606 ; Branner v. Felkner, 1 Heisk., MIUTARY LAW AND PRECEDENTS. 775 In cases of property taken from our own people, by the military authorities, for the use of the troops, and used by them, where the necessity for the taking has been clearly shown, the courts of the United States, in view of the constitu- tional provision that private property shall not be taken for public use without due compensation, have given judgment in favor of the owner against the United States for the proper value of the things appropriated. In such cases Indeed there is an Implied contract to pay the reasonable worth of the sup- plies. Where, however, property of citizens has been destroyed or damaged, In an emergency arising in the course of legitimate military operations against an enemy, the owner, as it has repeatedly been adjudged, has no claim upon the government, (or upon the official who exercised authority in the case;) — such losses being classed as among the inevitable accidents and misfortunes of war for the happening of which no government or person can be held re- 1207 sponsible.' It has thus been ruled with reference to dwellings and their contents, other buildings, bridges, crops, &c. In some instances indeed Congress has specially indemnified the citizen. But where private property has been taken or destroyed in the absence of a justifying emergency, so that there can be no right of action against the United States, — in such case the commander, by whose order the seizure, &c., was made, is held to be a trespasser and liable in damages to the owner. The leading case on this subject in our law is that of Harmony v. Mitchell," In which judgment was given against Lieut. Col. D. D. Mitchell, commanding a Missouri regiment of Colonel Doniphan's command, on account of the appropriation, at Chihuahua In 1847, during the war with Mexico, of horses, mules, wagons and goods be- longing to the plalntlfE, a trader, at a time when the same, though important for facilitating the operations of the army, were not necessary for its use, and were not in danger of falling into the hands of the enemy, then more than two hundred miles distant and not advancing. 228; Yost v. Stout, 4 Cold., 205; Taylor v. R. R. Co., 6 Id., 848; Bryan v. Walker, 64 No, Ca., 141 ; Koonce v. Davis, 72 Id., 218 ; Wellman v. Wickerman, 44 Mo., 484 ; Bowles V. Lewis, 48 Id., 32 ; Williamson v. Russell, 49 Id., 185 — (cases of the taking of property mostly for tbe use of the army;) Drehman v. Stifel, 41 Mo., 184, (a case of the taking and occupying of a brewery as a means of defence of the city of St. Louis ;) Smith i;. Brazelton, 1 Heisk., 44; Parham v. The Justices, 9 Ga., 341 — (cases of using land, timber, &c., for purposes of a camp or fortification ;) Stafford v. Mercer, 42 Ga., 566 ; Ford V. Surget, 46 Miss., 130 — (cases of destroying private cotton to prevent its falling into the hands of the enemy.) And see Hawkins v. Nelson, 40 Ala., 553 ; Terrill v. Rankin, 2 Bush, 453 ; Sellards v. Zomesi 5 Id., 90 ; Taylor v. Jenkins, 24 Ark., 342 ; Thomasson v. Glisson, 4 Heisk., 615 ; Clark v. Mitchell, 64 Mo., 564 ; McLaughlin «). Green, 50 Miss., 453. ' U. S. V. Pacific R. R. Co., 120 TJ. S., 227, and cases cited ; Mitchell v. Harmony, post; Beasley v. V. S., 21 Ct. CI., 225 ; Vattel, book III, c. 15, § 232 ; Bluntschli § 682. • 1 Blatchford, 549. The judgment of $90,806.44 damages, awarded upon the trial In the TJ. S. Circuit Court, was affirmed in the Supreme Court, (Mitchell i;. Harmony, 13 Howard, 115 ;) the principle of the ruling being expressed by Taney, C. J., as follows: — " There are without doubt occasions in which private property may lawfully be taken possession of, or destroyed to prevent it from falling Into the hands of the public enemy ; and also where a military officer, chargfed with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to tbe owner ; but the officer is not a trespasser. But we are clearly of opinion that in all these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not, admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. - Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified." 776 MILITARY LAW AND PRECEDENTS. The law, as laid down in this case, Is illustrated by the later instance, occurring in 1857, of the impressing Into the service of the United States by Colonel A. S. Johnson, in command of the Utah expedition, of the teams and property of certain freighters, — in which judgments were rendered In favor of these parties against the United States for the value of the pr<^erty taken. The military orders made and executed in this instance evidently 1208 " were," observes Attorney General Bates," " the wise and proper precau- tions of an officer to protect his own force and prevent his enemy from being strengthened ; " and he holds that these orders and acts of Ool. Johnson were "justified by military necessity," thus conttasting the case with that of Harmony v. Mitchell, as adjudged." A material difference between the cases of Mitchell and Johnson was that the claims of the freighters in the latter were, by legislation of Congress, referred to the Court of Claims for adjudication — ^which left little more to that Court than to assess the value of the property taken. It may be added, as to Mitchell's case, that it was clearly a hard one, and, by special Act of March 11, 1852, he was relieved of the judgment against him, which was assumed and paid by the United States. ABREST AND BESTBAINT OP PEBSONS. The Laws of War authorize the arrest, trial and punishment of such of our own people as may become chargeable with relieving or communicating with the enemy, carrying on illicit trade or intercourse, or other violation of those Laws. The liability and dis- position of such offenders has already been in part considered under the 45th and 46th Articles of War, and will be further discussed in treating of the jurisdiction and powers of the Military Commission. The restraints which may be exercised over the citizen will also enter into the consideration of the subject of Martial Law. II. THE LAW OF WAR AS AFFECTING INTERCOURSE BETWEEN ENEMIES IN GENERAL. BTTIiE OF NON-INTEBCOTTBSE. The principle here to be noticed is sim- ply that of the absolute non-intercourse of enemies in war. As frequently reiter- ated in the rulings of the Supreme Court, not merely the opposed military forces but all the inhabitants of the belligerent nations or districts become, upon the declaration or initiation " of a foreign war, or of a civil war, (such as was 1209 the late war of the rebellion, ) the enemies both of the adverse government and of each other," and all intercourse between them is terminated and " 10 Opins. At. Gen., 23. "See Irwin -v. D. S., 2^ Ct. CI., 149; U. S. v. Irwin, 127 D. S., 125; 10 Opins. At. Gen., 21. "As to what constitutes such declaration or initiation, see ante; " Fifty-Eighth Article," Part I, p. 868. " Vattel, 321 ; Manning, 166 ; Dana's Wheaton § 345 ; 1 Kent, Com., 55 ; Hallecic, 357 ; Jeclser v. Montgomery, 18 Howard, 112 ; White v. Burnley, 20 Id., 2:9 ; Prize Cases, 2 Blacli, 666 ; Mrs. Alexander's Cotton, 2 Wallace, 274 ; The Venice, Id., 418 ; Coppell v. Hall, 7 Id., 542 ; Texas v. White, Id., 700 ; Lamar v. Browne, 92 U. S., 194 ; Ford v. Surget, 97 Id., 594 ; Dow v. Johnson, 100 Id., 164. " In the state of war nation is Itnown to nation only by their armed exterior ; each threatening the other with conquest or annihila- tion. The Individuals who compose the belligerent States exist, as to each other, in a state of utter occlusion. If they meet. It is only In combat. War strips man of his social nature." The Rapid, 8 Cranch, 160. (Johnson, J.) This view, however. Is strongly combated by Bluntschll (S 531). "Die Prlvatcn," he writes, " als solche Bind bei dlesem Strelte nicht unmittelbar bethelUgt, sie sind nicht Kreigs- und nicht Process-parteien, und eben desshalb nicht Feinde Im elgentllchen und vollen Sinn des Worts." MILITARY LAW AND PRECEDENTS. 777 Interdicted." Hence the general rule that, pending the war, all domestic, social, and business relations are forcibly severed; all interchange, however personal and intrinsically harmless, is forbidden ; no new contracts or engagements can be entered Into; existing partnerships and joint undertakings are dissolved, and existing contracts and pecuniary obligations are suspended," and " the courts of each belligerent are closed to the citizens of the other." " 1210 ENFOBCEMENT AND VIOLATION OF THE BULE. The drawing of strict army lines, the patrolling, with troops or armed vessels, of the territory, rivers, &c., intervening between the belligerents, and the establishment . of military posts upon main routes of travel and of blockades of important ports, while measures defensive and ofCensive as against the hostile forces, are also efficient means for the enforcement of this rule of non-intercourse. Infractions of this rule, by selling to, buying from or contracting with enemies, furnishing them with supplies, corresponding, mail carrying, passing the Itoes without authority, &c., are violations of the laws of war, more or less grave in proportion as they render material aid or information to the enemy or attempt to do so, and, as will hereafter be illustrated, are among the most frequent of the offences triable and punishable by military commission. EXCEPTIONS TO THE GENEBAL BTJLE — ^LICENSES TO TBADE. By the custom of war, however, certain exceptions have come, from necessity or considerations of policy or humanity, to be admitted to the general rule of non-intercourse. Among the more familiar of these exceptions are the use of flags of truce, the entering into armistices, cartels, or other conventions, and the exchange of prisoners of war. These will be noticed under the next Title, as relating to the carrying on of war and the treatment of captives. A more distinctive exception is the licensing of trading between belligerents. Early in our late civil war, which, because of its great proportions, was assimi- lated to a foreign war, and in which, as has been remarked, belligerent rights were conceded by the United States to the Confederate forces," an Act of Con- gress of July 13, 1861, c. 3, s. 5, in supplementing the law of war by specifically interdicting commercial Intercourse with the insurrectionary States, yet author- ized the President in his discretion to license such intercourse in particular in- stances When deemed conducive to the public interests. Such licenses being exceptional, it was held by the Supreme Court that they were to be strictly 1211 construed ; " also that no authority other than the President could grant a " " Interdiction of trade and~ intercourse, direct or Indirect, Is absolute and complete by tbe mere force and effect of war itself." Prize Cases, 2 Blacli, 688. And see the other authorities cited in last note ; also Woolsey § 117 ; Schooner v. Patriot, 1 Brock, 421 ; The Julia and Cargo, 1 Gallison, 603 ; The Sea Lion, 5 Wallace, 630 ; The Ouachita Cotton, 6 Wallace, 521 ; Hanger v. Abbott, Id., 53.5 ; McKee v. V. S., 8 Id., 163 ; U. S. v. Lane, Id., 195 ; U. S. V. Grossmayer, 9 Id., 72 ; Montgomery v. U. S., 15 Id., 395 ; Hamilton v. Dillln, 21 Id., 73 ; Mitchell v. U. S., Id., 350 ; Desmare v. V. S., 93, V. S., 612 ; Brown v. Hiatt, 1 Dillon, 372 and 15 Wallace, 184. " Boare v. Allen, 2 Dallas, 102 ; Foxeraft v. Nagle, Id., 132 ; Manning, 176 ; and cases cited in the two preceding notes. But " war does not confiscate debts or property for the benefit of debtors, but only suspends the right of action." Caldwell v. Harding, 1 Lowell, 329. As to the unlawfulness of the act of drawing bills by or upon enemies during the late war, see Britton v. Butler, 9 Blatchford, 457 ; Williams v. Mobile Sav. Bk., 2 Woods, 501 ; Woods v. Wilder, 43 N. Y., 164 ; Lacy v. Sugarman, 12 Heisk., 354. That exceptions to the general rule stated in the text may be admitted in eases of prisoners of war drawing bills for subsistence furnished them by enemies, (or for their ransom,) see Antoine v. Morehead, 6 Taunton, 237 ; Halleck, 359 ; Digest, edit, of 1868, p. 292. " Brown ■». Hiatt, 15 Wallace 184. "Dow V. Johnson, 100 U. S.', 158; Stevens v. GrlflSth, 111 U. S., 51; Freeland v. WUliams, 131 U. S., 416 ; D. S. v. Pacific R. E., 120 V. S., 233. , . " The Reform, 3 Wallace, 632 ; McClelland v. D. S., 21 Id., 98 ; Cutner v. V. S., 17 Id., 617 ; Millar v. V. S. 8 Ct. CI., 487 ; Cone v. V. S., Id., 421. 778 MILITARY LAW AND PBBOEDBNTS. license, so that licenses to trade with enemies assumed to be given by mili- tary commanders were " n\illltles." " By later legislation of July 2, 1864, the Secretary of the Treasury was empowered, with the approval of the Presi- dent, to purchase, "for the United States," the products of Insurrectionary States, which. It was provided, should be sold and the proceeds paid Into the Treasury. in. THE LAW OP WAR AS SPECIALLY APPLICABLE TO ENEMIES IN ARMS. BIQHTS AND OBLIGATIONS OP WARFAIIE IN GENERAL. The conduct of war between civilized belligerents Is required by modern usage to be governed by certain general principles — such as the following : I. That war is waged against the State as a belligerent only, and not against the Individual citizens or subjects." Except where unavoidable, in the course of legitimate operations, private Individuals and non-combatants are not to be Involved In Injury to life, person, or property. II. That the operations of war are to be carried on only by the legitimate military forces of the State. III. That only legitimate weapons and means of warfare are to be employed. IV. That all truces and conventions are to be observed strictly and in good faith. V. That prisoners of war are to be treated with humanity and exchanged without unreasonable delay. VI. That each belligerent shall duly punish all persons within his lines who may be guilty of violations of the laws of war. I. WAR PBOPEEi. — 1. Immunity of private individuals and non- 1212 combatants. The State Is represented in active war by its contend- ing army, and the laws of war justify the killing or disabling of members of the one army by those of the other in battle or hostile operations. In such operations would be Included, with us, Indian hostilities. Thus, in May, 1891, under the ruling of the U. S. District Court for South Dakota, the Indian chief " Plenty Borises " was acquitted by a jury of the alleged murder of an officer of our army, on the ground that the killing was legitimate as being inci- dental to a state of war then pending. But it is forbidden by the usage of civilized nations, and is a crime against the modern law of war, to take the lives of, or commit violence against, non-combatants and private individuals not in arms, including women " and children " and the sick, as also persons taken >» The Ouachita Cotton, 6 Wallace, 621 ; Coppell v. Hall, 7 Id., 542 ; McEee v. V. S., 8 Id., 163. ^ " Operations of war must be directed exclusively against the forces and the means of making war of the hostile State, and not against its subjects, so long as the latter do not themselves take any active part in the war." (Brussels Conference, Original Project, Gen. Prlns. I II.) Only "die Krlegfiihrenden Staten sind Feinde im elgenllchen Sinn." BiuntscMl § 531. And see Same, ante, p. 776, note. "Ich fUbre Krleg mit den franzosichen Soldaten und nicht mit den franzosichen Biirgern." — 'Proclamation of the German Emperor on entering France in 1870. And see Woolsey, (eth ed.,) 220-1. '*A grave instajiee of this crime, consisting in the outraging of women, was that charged to have been committed by the British forces, at the capture of Hampton, Va., In July, 1813. See Report of Com. of the Ho. of Eeps., of July 31, 1813, Am. State Papers, Mil. AfEairs, vol. I, pp. 375-381. ''"In Art. 5, (Sec. V,) of the Articles of Charles I, (taken from Art. 97 of Gustavns Adolphua,) it is prescribed that — " No man shall presume to • • • tyrranize over any churchmen, schollers, or poore people, women, maides, or children, upon palne of death, or other such punishment as In a strict Councell of Warre shall be awarded." MII.ITAKY LAW AND PRECEDENTS. 779 prisoners or surrendering in good faith."" Another class who are to be exempt from violence, or seizure as prisoners, are the surgeons, assistants and em- ployees charged with the care and transport of the wounded on the field and the attendance upon them in field ambulance or hospital. Persons of this class " enjoy the rights of neutrality, provided they take no active part in the 1213 operations of war."" Of this description are the persons who are em- ployed under the rules of the Geneva Convention and wear its distinctive badge."' Inhabitants of the country, who in good faith bring aid to the wounded in the field or assist in their care, are included in this protection." Camp- followers, though they may be made prisoners, are to be treated as non- combatants, so long as they abstain entirely from offensive acts. Sick or wounded officers or soldiers taken in the field or in hospital, are prisoners of war, and entitled to receive the same treatment as members of the capturing army similarly disabled." The observance of the rule protecting from violence the unarmed population is especially to be enforced by commanders in occupying or passing through towns or villages of the enemy's country. All officers or soldiers offending against the rule of immunity of non-combatants or private persons in war forfeit their right to be treated as belligerents, and, together with civilians similarly offending,"" become liable to the severest penal- ties as violators of the laws of war. 2. Disposition of property. By the strict law of war, all effects of the en- emy, whether taken in battle or seized in his territory or elsewhere during the war, and whether belonging to his government or to individual subjects, become the absolute property of the capturing belligerent, who may use or dispose of the same at his discretion. Public property. This right of title and appropriation, as will be seen in considering the question of the government of occupied country of the enemy, does not in general apply to his lands or real property, but it covers all the other effects of the State — funds, money-securities, munitions, supplies, means 1214 of transport," &c. All such may be seized and utilized, without reserve, for the prosecution and purposes of the pending hostilities and status. Such property may also be, at will, destroyed; and this right extends to the fac- tories, mills, foundries, warehouses, depots, ofiices, or other buildings in which » Dana's Wheaton § 343 ; Halleck, 426, 429 ; Lleber, Inst. I 22, 37, 44. " It Is for- bidden to mutilate or kill an enemy who has surrendered at discretion, or is disabled." Manual, Laws of War, Part II, § 9. And see, to a similar effect. Project, Brussels Con- ference, Art. 13 ; Bluntschli § 585. A marked Instance of a conviction of the alleged unlawful taking of the life of a disabled enemy after he had practically surrendered was that, published In G. C. M. O. 505 of 1865, of the killing of Brig. Gen. R. L. McCook, in Alabama, In 1862. But the capital sentence in this case was subsequently In effect remitted by an order directing that the offender be held as a prisoner df war. See G. C. M. O. 204 of 1866: Compare State v. Gut, 13 Min., 341. The " Fort Pillow Massacre," or the putting to death, on the capture of Fort Pillow, In Tennessee, In April, 1864, by Forrest's command, of several hundred of the garrison, white and black, aftfer they had surrendered, was a crime — the extremest of that period — against the laws of civilized warfare. "Original Project, Brussels Conference, Ch. VII S 38. Hall, p. 338, refers to them as " neutralised." "s " Croix rouge sur fond blanc." Geneva Convention, Art. VII. ^ " Les habitants du pays qui porteront secours aux blessfe seront respectis et de- meureront libres." Geneva Convention, Art. V. " Modern codes forbid declarations " that quarter will not be given," in war. Manual, Laws of War, i 9 ; Project, Brussels Conference, Art. 13. It is also " forbidden," in the Manual i 19, " to strip and mutilate the dead lying on the field of battle." ■ Case of Gurley, in G. C. M. 0. 505 of 1865. » White V. Bed Chief, 1 Woods, 40. 780 MHJTAEY LAW AND PRECEDENTS. muuitions of the enemy may be manufactured, stored, &c. ;-^all or any such may be destroyed to deprive the enemy of their benefit, or cripple him In the prosecution of hostilities, or where their demolition may be required for pur- poses of defence." But from any such disposition are to be exempted all public institutions of a civil character, such as capitols, state-houses, buildings of the departments of the government, court-houses, churches, colleges, schools, libraries, hospitals and asylums, as well as museums and collections of art and science and historical monuments. All such edifices, and in general their contents, should be spared from destruction or desecration by an army on the march, or upon the capture or attack of a town.*'' The destruction by burning of the Capitol and President's House, at Washington, by the British forces in 1814, was a proceeding such as the modern law of war would condemn as wanton and without justification." 1215 Private property — Its seizure. As to this spedes of property, the strict war right of seizure has been very materially qualified by modern usage. Private property, (whether of individuals or private corporations,) is now In general regarded as properly exempt from seizure except where suitable for military use or of a hostile character." Thus supplies or material available as military stores, munitions, or means of transport, which are required for his army, or would be serviceable to the enemy, may always be appropriated by a belligerent, when in private as well as when in public possession. In our late civil war the capture of private property of enemies (valuable or useful for public purposes) was authorized " without regard to the status of the owner," " and it was declared to be the duty of the military, as of the naval forces at sea, to take and hold such property on behalf of the government.'" In deference, *■ Daring the late civil war a considerable number of salt-toorks were destroyed In the enemy's country by the federal forces. See Rebellion Record, vol. VI, pp. 10, 11, 12, 24, 41 ; vol. VII, pp. 11, 33, 311 ; vol. VIII, pp. 49, 419. " Vattel, 368 ; 1 Kent, 93 ; Halleck, 456 ; Dana's Wheaton § 346. Compare Executive Order of July 22, 1862. Note also Arts. 97 and 98 of the Code of Gustavus Adolphus, (and Art. 5, Sec. V, of Charles I, derived therefrom,) making punishable the firing or despoiling of churches, hospitals, schools, colleges and mills. And see Christian Co. Ct. V. Rankin, 2 Duvall, 502, a case in which two confederate so*ldlers were held liable for damages for assisting, though under the orders of a superior. In the destruction by burn- ing of the court-house of Christian County, Ky. "All destruction of or intentional damage " to such Institutions Is " forbidden unless It be imperatively demanded by the necessities of war." Manual, Laws of War, Part II, 53. "All necessary steps should be taken to spare as far as possible buildings devoted to religion, arts, sciences and charity, hospitals and places where sick and wounded are collected, on condition that they are not used at the same time for military purposes." Project, Brussels Conference, Art. 17. The plundering, by the British at New York, in 1776, of the City Hall Library, and of the Yale College Library in 1779 by Tryon's com- mand, were acts of vandalism which would scarcely be possible at this day. " Halleck, 456 ; Woolsey § 131 ; Dana's Wheaton § 351. And see opinion of the Court of Inquiry in the case of Brig. Gen. W. H. Winder, commander of the American forces, of February, 1815. The act was emphatically denounced at the time In the British House of Commons by Sir James Mackintosh. Hansard, Pari. Deb., vol. XXX, 526. » See Dana's Wheaton ; 346 ; 1 Kent, Com., 91 Woolsey S 129 ; Halleck, 456 ; D. S. v. Klein, 13 Wallace, 137; Dow v. Johnson, 100 TJ. S., 167; Gates v. Goodloe, 101 Id.,' 612. " Lamar v. Browne, 92 U. S., 194. " What shall be the subject of capture, as against the enemy, is always within the control of every belligerent." Id., 187. "» Lamar v. Browne, ante, 187, 194, 196. In an " Executive Order," dated " War Department, Washington, July 22, 1862," It was ordered, among other things, as fol- lows : — " That military commanders within the States of Virginia, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas and Arkansas, In an orderly manner, seize and use any property, real or personal, which may be necessary or con- venient for their several commands for supplies, or for other military purposes ; and that while property may be destroyed for proper military objects, none shall be destroyed in wantonness or malice." And see G. O. 154, Army of the Potomac, 1802, containing directions for carrying eut this Order. MILITARY LAW AND PRECEDENTS. 781 however, to " the humane maxims of the modem law of nations, which exempts private property of non-combatant enemies from capture as booty of war," " Congress, (which Is empowered by the Constitution to " make rules concerning captures on land and water,") by special legislation, during the war, provided for the conversion of all captured private property, (except such as had been " used," or " was intended to be used, for waging or carrying on war 1216 against the United States, such as arms, ordnance, ships, steamboats, or other water craft, and the furniture, forage, military supplies, or muni- tions of war,") — which was not required for public use, into money, and the deposit of the proceeds in the Treasury, subject to the claims of the original owners and their recovery of the same, on proof of loyalty to be made within a certain prescribed period." The subject of the capture of cotton, which was the article chiefly disposed of under this legislation, will be more appro- priately considered In treating, under the next Title, of enemy property in territory permanently occupied. But all the captures recognized as legitimate in our law and practice have been captures for, and by the authority of, the United States. No taking for private use or gain has been allowed," but such taking has been regarded as a grave military ofCence in violation of the 42d or other Article of war. The spoil or booty sometimes permitted to European armies, of property seized on the battle-field or at the storming of a fortified place," would not be recognized as legal in our law," but property thus captured would be considered as within the spirit if not the letter of the 9th Article, which provides that stores taken from the enemy shall accrue to the United States." It Is to be added that private property subject to seizure should be taken under the orders of a competent commander or specially authorized public agent. Inferior officers or soldiers seizing of their own will such property act without authority and are trespassers, liable as such in damages to the owners." 1217 The subject of the exacting of money or other private property of enemies, by way of contribution to the support of the government or army, or of indemnity to individuals, will be more appropriately considered under the next Title. Private Property. — ^Its destruction. The wanton destruction of private property is even less favored than its Indiscriminate seizure. Thus the Project of the Brussels Conference, declares that the laws of war, in disallowing " to belligerents an unlimited power as to the choice of means of injuring the enemy," forbid all destruction of private property " which is not imperatively required by the necessity of war." " Such destruction may indeed be justified where resorted to in furtherance of the legitimate operations of war. Thus, "U. S. V. Klein, ante; Lamar v. Browne, ante, 194. "Act of March 12, 1863, known as the " Captured and Abandoned Property Act." And see the latter provision of the Act of March 3, 1871, t. 116, s. 2, for the reimbursement of loyal citizens for " stores, supplies, &c., taken or furnished during the rebellion for the use of the army of the United States, In States proclaimed in insurrection." ''U. S. V. Klein, ante; Lamar v. Browne, ante; Decatur v. V. S., Devereux, 110; Bran- ner v. Felkner, 1 Heislt., 228 ; Moran v. Smell, 5 West Va., 26 ; Halleck, 462-4. "See Vattel, (Chitty's edition,) 366; Dana's Wheaton § 346; 1 Kent, Com., 92; Halleck, 457, 462. But this Is not now favored. Thus it is declared by the Brussels Conference, (Project, Art. 18,) "A town taken by storm should not be given up to the victorious troops to plunder." So; In the Manual of the Institute (§ 32,) — "It is forbidden to pillage even in the case of towns taken by assault." *» See Witherspoon v. Farmers' Bank, 2 Duvall, 497. « " Ninth Articlb/' Part 1, ch. XXV. " Lewis V. McGulre, 3 Bush, 202 ; Branner v. Felkner, 1 Heisk., 228. "Art. 13. And see Manual of the Laws of War § 32. 782 MILITAET LAW AND PRECEDENTS. such property may be destroyed where otherwise It would fall into the hands of the enemy by whom it would be utillzable for the maintenance of his army or other military purpose ; " or where it is serving as a shelter or defence to the enemy ; or where its use is required In the construction of military works ; or where it interrupts the fire of the guns of a fort or battery. But the extent of the destruction must be limited by the requirements of the exigency. Thus while the burning of isolated private dwellings or buildings may, in rare and exceptional cases, be excused by an emergency of war, the firing of a town or village, unless accidentally caused by its being Involved in an engagement or other legitimate hostile operation," is an inexcusable act in violation of the laws of war, not justifiable even by way of retaliation. Such were the burnings at Charlestown, Mass., at New London, Fairfield, Norwalk, Danbury and Ston- Ington, Conn., and at Kingston, New York, by the British, in the Revolutionary war. The burning or partial burning of the town of Chambersburg, Pa., 1218 on July 30, 1864, during the late civil war, was also an instance of such an act." The rule inhibiting the destruction of private property applies indeed with peculiar force where open towns and villages in the enemy's country become the scene of an engagement or of active operations. It is laid down by modem codes that such places are not to be attacked at all unless defended ; and that if the Same are bombarded, fair warning should first be given by the attacking commander." If some buildings must be burned, blown up, or pulled down, special care should be taken that those which may be occupied as hospitals or in which the wounded are cared for, should not be involved. The Geneva Con- vention, (Art. V,) provides — " Tout hless4 recueilU et soigni 'dans une maisdh y servira du sauvegarde." II. THE FOKCBS BY WHICH WAK, IS TO BE WAGED. It Is the gen- eral rule that the operations of war on land can legally be carried on only through the recognized armies or soldiery of the State as duly enlisted or employed In Its service. Such, with us, are the forces which are designated in our Constitution as army or land forces and militia ; the former Including regulars, volunteers and drafted men, as also marines When associated with the land forces ; " the latter being State troops called into the service of " It Is on this eround that the raidt ot the civil war were Justified ; as, for example, that of Gen. Sheridan's army, in the Shenandoah Valley, in 1864. See Draper's History of the War, vol. 3, p. 411 ; Manning, Commentaries on the Law of Nations, p. 139. "As In the cases of the burning of public property by the orders of Gen. Hardee, on the evacuation of Charleston, and by the orders of Gen. Ewell, on the evacuation of Bichmond, In the late war, to prevent such property falling Into the hands of the national forces ; when the incidental destruction of the large amount of private property which was involved, was claimed to have been inevitable. " See full account in Moore's Kebellion Record, vol. II, pp. 537-B44. As to the burn- ing of Columbia, So. Ca., on February 17, ISeB', It is the conclusion of the author, upon the testimony, that this, though perhaps initiated in the burning of the cotton, by the orders of Gen. Hampton, cannot fairly be fixed upon any responsible commander of either the Federal or the Confederate army, but was probably the work of irresponsible persons, by whom — for purposes of plunder or mischief — it was caused to spread and become general. On this question the student may be referred to the printed " Testimony," In the State Department, of the " British and American Mixed Commission," vol. 14, Claims 103, 292, &c. ; Howard's Report on British-American Claims, pp. 49, 433-512 ; Gen. Sherman's Report on the Campaign of the Carolinas, of April 4, 1865 ; Letter from Gen. Hampton to Hon. Reverdy Johnson, V. S. Senate, of April 21, 1866, published in the " Southern Historical Papers," vol. 7, pp. 156-158 ; Paper by Col. Jas. Wood Davidson, in same vol., p. 185 ; also Papers in vol. 9, p. 202, vol. 10, p. 109, and vol. 12, p. 238, of the " Southern Historical Society." " Project of Brussels Conference. Arts. 16, 16 ; Manual of Laws of War i 32, 38. " See Sec. 1621, Eev. Sts. ; the Seventy-Eighth Article of War : Ch. VIII, ante. MILITARY LAW AND PRECEDENTS. 783 1219 the United States." We have in our armies no civil branch auCh as is found in the more elaborate military establishments of foreign coun- tries ;" all our officers being alike commissioned and our soldiers alike enlisted in the military service as such. HtBEaTTLAKS — " Guerillas." Irregular armed bodies or persons not form- ing part of the organized forces of a belligerent, or operating under the orders of its established commanders, are not In general recognized as legitimate troops or entitled, when taken, to be treated as prisoners of war, but may upon capture be summarily punished even with death. Such parties have made their appearance on the skirts of armies in all wars. The cowboys and skinners of our Eevolution, the guerilleros of the Mexican war," the Russian bashi-bazouks, the Italian condottiere, and the French francs-tireurs in the Franco-German war," have been classified in this category. The government of a belligerent, however, has sometimes sanctioned the employment of such troops and claimed for them the rights of prisoners, as being contingents of their armies. Thus the Confederate "partisan rangers," though their actual service was apparently sometimes scarcely within the pale of legitimate warfare," were asserted by their government to be a 1220 " part of the regular provisional army of the Confederate States." " Where indeed the opposing belligerent is unwilling to accept a certain force of its enemy as entitled to the rights of regular troops, it is open to it to announce that it will not so recognize them. But a species of armed enemies whose employment In a military capacity was not and gould not be justified were the so-called " guerillas " of our late civil war." These were persons acting Independently, and generally in bands, » Ch. VIII, ante—" The Militia, &c." » " The armed force of a State comprehends — 1. The Army properly so-called, Including militia ; 2. National Guards, Landsturm, and all corps which satisfy the following re- quirements — (a) That of being under the direction of a responsible leader; (b) That of wearing a uniform or a distinctive mark, which latter must be fixed, and capable of being recognized at a distance ; (c) That of bearing arms openly." Manual, Laws of War g 1, 2. And see to a similar effect. Project, Brussels Conference, Art. 9. These provisions also recognize, as forming " part of the armed forces of the State," the population of a territory not yet occupied by the enemy, who, on his approach, spontaneously take up arms to resist the Invading army, " even though, owing to want of time, they have not organized themselves militarily." » See G. O. 372, Hdqrs. of Army, 1847. After the battle of Cerro Gordo, guerilla war- fare became in fact a systematic mode of prosecuting hostilities sanctioned by the Mexican government. Compare Halleck, 438. " According to the German view, which apparently did not then recognize the levie en masse. See Hall, 402, 447, 450 ; Creasy, 476-478, 489 ; Edwards, " With the Germans in France," 204-208, 278 ; also Bluntschli § 570, 570 Ms. " In an order of June 17, 1862, MaJ. Gen. Hlndman, Comdg. Trans-Miss. Dist, calls upon " citizens not subject to conscription " to organize into ".independent com- panies of mounted men or Infantry, as they prefer, arming or equipping themselves." Pay and allowances are promised, and they are " to be governed by the same regula- tions as other troops." Their purpose is stated to be — " to cut off Federal pickets, scouts, foraging parties and trains, and to kill pilots and others on gunboats and trans- ports." V Keb. Kec, 540. In the same year, Col. J. D. Imboden, In publicly announc- ing that he is raising a regiment of " partisan rangers," declares — " My purpose is to wage the most active warfare against our brutal invaders and their domestic allies; to hang about their camp and shoot down every sentinel, picket, courier, and wagon driver we can find." Reb. Rec.', Comp. vol., 757. »• Letter of Geo. W. Randolph, Secretary of State, Confederate States, to Hon. John B. Clarke, C. S. Senate, July 16, 1862. And see Act of Confederate Congress of Feb. 17, 1864. » Called " guerilla-marauders " in the act of July 2, 1884, c. 215, and the 105th Article of war. They were also styled, in different localities, " bushwhackers," " jay- hawkers," "regulators," &c. Prof. Lieber, (Inst. | 82, 84,) refers to them as "high- 784 MILITARY LAW AND PRECEDENTS, within districts of the enemy's country or on its borders, who engaged in the killing, disabling and robbing of peaceable citizens or soldiers, iu plunder and pillage, and even In the sacking of towns, from motives mostly of personal profit or revenge." Not being within the protection of the laws of war, they were treated as criminals and outlaws, not entitled upon capture to be held as prisoners of war, but liable to be shot, imprisoned, or banished, either sum- marily where their guilt was clear or upon trial and conviction by mill- 1221 tary commission. Numerous instances of trials, for " Violation of the laws of war," of offenders of this description, are published in the Gen- eral Orders of the years 1862 to 1866." A modern belligerent would certainly be justified in refusing to recognize as legitimate forces any contingent in its enemy's army of uncivilized com- batants who would not be likely to respect the laws of war — such as were the Indians employed In our early history." A complete code would further, In the author's opinion, discountenance the employmfet by one belligerent of any considerable body of mercenaries, sub- jects of a foreign government with which the other belligerent was at peace. III. WEAPONS AND MEANS OF WARFARE — Projectiles, &c., not approved. The weapons in legitimate use In war change with the progress of inventive science. The list of legitimate weapons has been Increased in modern times, as by the mitrailleuse or machine gun, the repeating rifle, the tor- 1222 pedo and sundry new explosives. An illegitimate weapon of war would be one which, in disabling or causing death, inflicted a needless, unusual and unreasonable amount of torture or injury and the deliberate use of such a weapon would properly be treated as a violation of the laws of war. In the Declaration of St. Petersburg of 1868, it was agreed by the powers concerned " to renounce, in case of war among themselves, the employment, by their mili- tary or naval forces, of any projectile of less weight than 400 grammes, which way robbers or pirates " and " armed prowlers." In his " Guerilla Parties," Miscella- neous Writings, vol. 2, p. 277, he more fully defines this class, distinguishing them from partisans, &c. "As In the cases of Olatbe, Ks., (V Eeb. Rec, 73;) Shawnee, Ks., (VI Do., 4;) Shawneetown, Ks., (VII Do., 3;) Lawrence, Ks., (Do., 43;) Charleston, Mo., (VIII Do., 1;) Mayfleld, Ky., (Do., 51.) And see V Do., 46, 50, 67, 78; VI Do., 75; XI Do., 469. " Some of the more marked of the numerous cases of Guerillas, sentenced to death for homicides or other violence in the late war, are found in 6. 0. 135, 267, 382 — of 1863 ; Do. 23, 41, (six cases,) 52, 62, 71 ; G. C. M. O. 87, 93, 98, 110, (eight cases,) 153, 198, (Jessie A. Broadway,) 202, 208, 209, 210, 211, 215, 216, 218, 219, (Jourdan Moseley,) 246, 250, 276, 302 — of 1864 ; Do. 51 of 1866 ; G. O. 93, Dept. of the Ohio, 1864, (seven cases ;) Do. 32, Northern Dept., 1865 ; Do. 51, Dept. of the Mo., 1864, (John D. Mulkey;) Do. 12, Dept. of Tenn., 1865, (Champ Furguson;) Do. 7, Id., 1866; Do. 22, Dept. of the Tenn., 1865; G. C. M. O. 3, Dept. of Ky., 1865,' (Jerome Clark alias Sue Mundy ;) Do. 4, Id., Do. 24, Id., (Tobe Long alias Columbus M. Biassee;) Do. 26, 27, Id. ; Do. 108, Id., (Henry C. Magruder ;) Do. 11, Id., i866, (Samuel O. Berry.) Among the principal cases of persons of this class capitally sentenced for the seizure, burning, or destruction, of steamboats, buildings, railroad trains and bridges, telegraph lines, &c., were those of Eobt. Louden, (G. O. 41 of 1864,) Wm. Murphy, (G. C. M. 0. 107 of 1866,) John Y. Beall, (G. O. 14, Dept. of the East; 1865,) Kobt. C. Kennedy, (Do. 24, Id.,) T. B. Hogg, (Do. 52, Dept. of the Pacific, 1865 ;) also cases in G. O.. 12, 16, 19, Dept. of the Mississippi, 1862. In this connection may also be noted the following Orders In which guerilla warfare is especially denounced by Department Commanders : G. O. 13, Dept. of the Mo., 1861 ; Do. 30, Id., 1863 ; Do. 13, Dept. of Kans., 1862 ; Do. 23, Id., 1864 ; Do. 19, Dept. of the Cumberland, 1862 ; Do. 56, Dept. of W. Va., 1865 ; Circ, Id., Dec. 9, 1864 ; G. O. 7, Dept. of the South, 1866; Do. 17, Id., 1867; G. C. M. 0. 90, War Dept., 1866; Do. 28, Dept. of Ky., 1865. '^ Compare — as to the employment in 1870, by Napoleon III, of the Turcoa — ^Bluntachll i 559 ; Edwards, p. 295. MILITABY lAW AND PRECEDENTS. 785 • 1? explosive, or is charged with fulminating or inflammable substances." By the Manual of the Institute of International Law, it is " forbidden to use arms, projectiles, or substances, calculated to inflict superfluous suffering or to aggra- vate wounds, particularly projectiles " such as are discarded by the Declaration of St. Petersburg."" In the Brussels Conference it was proposed to condemn specifically the use of " projectiles filled with powdered glass." " General Grant, in his Memoirs," censures the use by the enemy, at Vicksburg In 1863, of " eieplosive musket balls " as producing " increased suffering without any corre- sponding advantage to those using them." The " copper tialls " employed by the Mexicans opposed to Gen. Taylor's army, which are described as "very poisonous in their effect, especially in that hot climate," " were subject to the same condemnation. Woolsey " writes — "A copper bullet poisoning its wound, a detachable lance head, a barbed bayonet, would all be Illegal." tJse of poison. Any resort to poison as a means of taking life or Inflicting ■injury upon an enemy must be without sanction. Thus the Institute ** Inhibits the use of " poison in any form," and the Brussels Conference " " the use of poison or poisoned weapons." The infecting of wells or springs of drinking water, or of provisions likely to fall into the enemy's way, and which 1223 were in fact partaken of by his troops as intended, would constitute a marked violation of the laws of war. A poisoning by the enemy of arti- cles of food abandoned by them in evacuating a military post in A,rkansas in 1862, as a result of which lives were destroyed, is commented upon by Maj. G«n. Halleck in a General Order, as a grave instance of unlawful warfare." Other treacherous or insidious means. So a resort to the employment of assassins," or other violent or harmful and secret method which cannot be guarded against by ordinary vigilance, is interdicted by civilized usage." Thus it would be unlawful to display deceptively the national colors of the enemy, or a flag of truce, or the brassard of the Geneva Convention, or other embleifa by which the real character and operations of troops or hostile persons would be concealed, to the enemy's detriment." So it has been held not to be lawful to deceive designedly an enemy by being disguised in the uniform of his army ; " and soldiers captured, when for a deceitful purpose so disguised, within the lines of the opposing forces, are not entitled to be treated as prisoners of war, but may be shot without trial," or if tried be sentenced to death in the ™part II, 9. »> Sec. I, ch. Ill, § 12. And see Bluntschll § 558. •' VoU I, p. 538. •2 Jenkins, History of the Mexican War, p. 240. «Int. Law, p. 213. « Part II § 8. And see Bluntscbli S 557. "Art. 13. ™ " Forty-two officers and men of one of our regiments were poisoned by eating these provisions. One brave officer and several men have died, and others have suffered ter- ribly from this barbarous act— an act condemned by every civilized nation, ancient and modern." G. O. 49, Dept. of the Mo., 1862. '^ Woolsey, 239 ; Halleck, 400 ; Dana's note to Wheaton § 343 ; Project, Brussels Con- ference, Art. 13 ; Manual, Laws of War § 8. " Vattel, 361 ; Woolsey § 12T ; Dana's Wheaton § 343 ; Halleck, 399 ; Lieber, Inst. ! 70. •" Lieber, Inst, g 65 ; Manual, Laws of War § 8 ; Project, Brussels Conference, ch. III. § 13. And see G. O. 16, Dept. of the Cumberland, 1863. ™ Project, Brussels Conference, Art. 13 ; Manual, Laws of War § 8. Contra, see Philli- more, Commentaries on International Law, vol. 3, p. 155. Bluntschll (§ 565) would sanction this ruse if employed tefore a battle. " Lieber, Inst, i 63, 101 ; Project, Brussels Conference, Art. 13 ; G. O. 16. Dept. of the Cumberland, 1863 ; Do. 10, Dept. of the Tenn., 1863. In the latter Order, General 440S93 O - 42 - 50 786 MILITARY LAW AND PRECEDENTS. 1224 same manner as spies." The offence of the spy, heretofore considered," Is itself a marked instance of a prohibited act of this class. Secretly entering the lines. A similar though less aggravated offence against the laws of war is that of officers, soldiers, or agents, of one belligerent who come secretly within the lines of the other, or within the territory held by his forces, for any unauthorized purpose other than that of the spy, as, for example, for the purpose of recruiting for their army, obtaining horses or supplies for the same, holding unlawful communication, &c., — a class of offences of which instances were not unfrequent in the border States during our late civil war." Buses de guerre. The rule under consideration does not of course inhibit expedients not involving treachery. Thus it is permitted to surprise and prevail over an enemy by feints of attack, pretended retreats or other move- ments, false demonstrations, fictitious dispatches allowed to be Intercepted, and the like. " Stratagems," It is declared by the Brussels Conference," " and the employment of means necessary to procure intelligence respecting the enemy or the country, are considered as lawful means." Ope of such means would be the open Inspection of an enemy's camps, &c., from a balloon." IV. TBirCES AND CONVENTIONS. " MUltary Conventions," prescribes the Institute," " made between belligerents during war, such as armistices and capitulations, must be scrupulously observed and respected." Or, as It Is ex- pressed In the Appel of 1877 — " Les parlementairea sont inviolate." A gross Instance of a breach of the laws of war would be the taking advantage of a temporary truce between the armies to seize or kill individuals of the enemy or make an attack upon his forces. Of this class was the offence of the Modoc Indians, who during a truce and conference between their tribe and our 1225 army in the course of hostilities in Northern California, In April, 1873, took the lives of Brig. Gen. Canby and Rev. E. Thomas, a " peace commis- sioner." In regard to this crime. It was observed by the then Attorney Gen- eral, — "AH the laws and customs of civilized warfare may not be applicable to an armed conflict with the Indian tribes upon ,our Western frontiers, but the circumstances attending the assassination of Canby and' Thomas are such as to make their murder as much a violation of the laws of savage as of civilized warfare, and the Indians concerned in it fully understood the baseness and treachery of their act." " Capitulation. This is an agreement for the surrender of an army, or of a fortified place, of which the terms are settled by the belligerent commanders. In the Project of the Brussels Conference " it is prescribed that " these condi- tions should not be contrary to military honor." That is to say, conditions in- volving unnecessary disgrace or Ignominy should not be Insisted upon. Private Grant, referring to confederate soldiers thus disguised In our uniforms, announces that they " win not be treated as organized bodies of the enemy, but will be closely confined and held for the action of the War Department." " See cases In G. C. M. O. 110, 250, of 1864. " Ch. XXV. " See cases of recruiting by enemies within our lines In violation of the laws of war, In G. O. 114, 397, of 1863 ; G. C. M. O. 155, 249, of 1864 ; Do. 4 of 1886 ; G. 0. 18, 34, 48, 44, 45, Middle Dept., 1864 ; Do. 25, Dept. of the Mo., 1864 ; Do. 153, 200, Dept. of the Ohio, 1863. "Art. 14. " Compare the case of Worth, referred to in Part I, p. 769, note. " Manual, Laws of War, S S. " 14 Oplns. At. Gen., 249. These Indians were all sentenced to be hung : the ten- fences were executed In the cases of Captain Jack, the chief, and three others, and In the two other cases commuted to Imprisonment for life. G. C. M, 0. 82 and 84, of 1873, "Art. 46, MILITARY liAW AND PRECEDENTS. 787 effects should not be required to be surrendered, and officers are g^ierally allowed to retain their swords. In the capitulation between Grens. Grant and Lee, of April, 1865, In providing for the surrender of military property, It is added — " This will not embrace the side arms of the officers, nor their private horses nor baggage." " A capitulation Is of course subject to be disapproved and annulled by the Government of either compiander. Thus the Sherman- Johnston capitulation of Ai>ril, 1865," was r^udiated by the Government at Washington because of its assuming to deal with poKtical issues. Armistice. This Is an agreement, "general or local" — i.e. applicable 1226 to the whole army, or only to a particular body of troops or district — for the suspension of -military operations In war. Its duration Is usually fixed ; and official notice of its period and other terms is properly given without delay to all those whom it may concern. During its pendency, neither party — in the absence of a special condition authorizing it — may engage In any military work, operation, or movement, at least upon the Immediate theater of war ; or, under its cover, execute a retreat." If violated by one of the parties, the other IS'eQtltled to terminate It, and Its violation by private individuals subjects them to .punishment under the laws of war and to a liability to indemnify an aggrieved party for losses sustained." Qjhe offence of violation of an armistice may consist in an act .in contra- vention of the terms of the agreement, or in an act wholly -inconsistent with the status of suspension. In the Mexican war, (1847,) a violation of the laws of war was, as claimed by Gen. Scott, committed by Santa Anna, in his strengthening the defences of the city of Mexico, during an armistice and In disregard of one of its expressed conditions." Plagrs of truce, and their abuse. Convention or communication between ene- mies is usually initiated by flag of truce. The law of nations extends an Inviolability to an authorized person presenting himself with the white flag, and this Inviolability covers the other persons. by whom he may properly be accompanied — as a flag-carrier, trumpeter or drummer, and guide or inter- preter." While the persons admitted with a flag of truce should, so far as practicable, be restricted to such only as are necessary for the purposes of the flag, it was not unusual in our civil war for considerable numbers of other persons — as prisoners of war, refugees, and individuals specially privileged to pass the lines — to be forwarded and received under this protection. The inviolability of the flag extends also to persons who may bear or accom- pany it without authority from a proper military superior, provided the 1227 irregularity of the presentation is waived by their being admitted within the lines — as in the case of deserters or persons escaping from the enemy." "See reference liy Bluntschli (| 699), to the capitulations in the Franco-German War, 1870-71. Specially faTorable terms were granted to the garrison r>t Belfort, on account of their brave and protracted defence. "See G. O. 52, Dept. of the South, 1885, publishing Special Field Orders, Mil. Dlv. of the Miss. ; Draper, Hist. Am. Civil War, vol. 3, p. 608. »»BIuntBchll S 691. " Project, Brussels Conference, Art. 52. " Scott's Autobiography, p. 504. And see Grant's Memoirs, vol. I, p. 148. '^ See Project, Brussels Conference, Art. 43, Manual, Laws of War, § 27, 28. " "At Corinth, Miss.," (May, 1862,) " four hundred Germans from a Louisiana regi- ment, who bad been sent out from the rebel camp on outpost duty, came into the National lines In a body with white flags on their guns, and gave themselves up as deserters." Rebellion Record, vol. V, p. 1. Similarly, in January, 1863, three hundred " consQTlpt rebel soldiers " came Into the federal lines at Murfreesboro, Tenn., and 788 MILITARY LAW AND PRECEDENTS. Admission by flag of truce is not a right; the bearer of a flag, though duly delegated, is not entitled to be permitted to enter the lines; nor Is the com- mander to whom the flag Is sent " obliged to receive its bearer under all circum- stances." " He may indeed. If he deems It expedient, give previous notice to the enemy that he will not receive any flags, or none within a certain designated period."' So he may warn ofC a particular flag when exhibited; but, without such warning, to fire upon the flag, or offer violence to the bearer, is a violation of the laws T)f war than which none has been more summarily visited upon the offender, or has induced more serious consequences. Thus, in Navarino Bay, in October, 1827, the firing by a Turkish ship upon an Elnglish boat bearing a flag of truce, and killing of an officer, brought on — war not having yet been de- clared — the battle of Navarino, which resulted In the extinction by the allies of the Turkish fleet, and the independence of Greece. The flag being admitted, the commander may resort to such precautions as may be necessary to prevent the party from taking undue advantage of their privilege.™ A representative of the opposing army thus received is indeed bound to act with strict good faith, and if by any illicit proceeding he abuses the 1228 confidence of the enemy, his inviolability is forfeited. A bearer of a flag of truce who employs the same for an Illegitimate purpose, as for the purpose of observing the enemy's position, numbers, &c. ; or who, having been halted with his flag outside the lines, obtains access within them by means of false repre- sentations ; or, when admitted within the lines, avails himself of the opportunity to make secret communications, or to take notes. Is liable to be detained and held for trial and punishment under the laws of war." Trials for this class of offences have been indeed of rare occurrence In our wars." V. FBISONEBS OF WAB. Modern sentiment and usage have induced In the practice of war few changes so marked as that which affects the status of prisoners of war. The time has long passed when " no quarter " was the rule on the battlefield, or when a prisoner could be put to death by virtue simply of his capture. It Is now recognized that — " Captivity Is neither a punishment nor an act of vengeance," but " merely a temporary detention which is devoid of all penal character." " Or, as Lleber states it," — "A prisoner of war is. no convict ; his imprisonment is a simple war measure." As it is concisely expressed " voluntarily surrendered themselves, declaring their attachment to the Union and requesting the privilege of talking the oath of allegiance." Id., vol. VI, p. 41. In August, 1S64, General Grant reports from City Point, Va., that the enemy are " now losing from desertions (and other causes) at least one regiment per day." In the Annual Report of the Secretary of War for 1865, (page 1252,) It la stated that, between January and May, 1865, there were received, at Chattanooga, 2,596 deserters from the confederate army, and at Nashville 2,751. These deserters usually gained admission by some form of flag of truce as above indicated. "Manual, Laws of War § 29. ■■ Project, Brussels Conference, Art. 44. " Project, Brussels Conference, Art. 44 ; Manual, Laws of War 8 30. *> As to the use and abuse of flags of truce, see Halleek, 674 ; Lieber, Inst. § 111-114 ; G. O. 16, Dept. of the Cumberland, 1862 ; Do. 42, Dept. of the Gulf, 1863 ; also a recent G. O., No. 43 of 1893, prepared in the "Judge Advocate General's Office, publishing In- structions to be observed in the Dispatch and Reception of Flags of Truce. " See a case In G. O. 5, Dept. of W. Va., 1864, in which an officer of the confederate army was charged with violating a flag of truce by exhibiting such a flag on the south side of the Potomac at Harper's Ferry, in February, 1862, and thus inducing the flag of truce boat to be sent across the river in charge of a D. S. military employee, whom he thereupon caused to be flred upon and liilled. The accused was convicted and sentenced to be hung. The proceedings, however, were disapproved by the reviewing authority on ihe ground that the personal guilt of the accused was not sufficiently established, and he was ordered to " be reported to the Commissary General of Prisoners as a prisoner of war." " Manual, Laws of War, Part II — " Of Prisoners of War." " Miscellaneous Writings, vol. 2, p. 293, MILITARY LAW AND PEECEDENTS. 789 In the Appel of 1877 — " Le hut de leiir capitiviti we doit pas 6tre de les punir. mats de les garder." In regard to the custody and disposition of such prisoners the following principles and rules may be said to be established. 1229 1. Persons entitled to rights of prisoners of war." The class of per- sons entitled upon capture to the privileges of prisoners of war comprises members of the enemy's armies, embracing both combatants and non-combatants, and the wounded and sicli taken on the field and in hospital. It should comprise also civil persons engaged In military duty or in immediate connection with an army, such as clerks, telegraphists, aeronauts, teamsters, laborers, messengers, guides, scouts, and men employed on transports and military railways — the class Indeed of civilians in the employment and service of the government such as are specified In our 63d Article of War as " Persons serving with the armies In the field." Camp-followers, Including members of soldiers' families, sutlers, contractors, newspaper correspondents, and others allowed with the army but not in the public employment, should, when taken, be treated similarly as prisoners of war, but should be held only so long as may be necessary. In the words of the Institute," — " Persons who follow an army, without forming part of it, can only be detained for so long a time as may be required by military necessity." Of the non-combatants of an army, those composing the staff of the hospitals and ambulances — viz. medical officers, hospital stewards and attendants, employed in the care and transport of the wounded and sick, with chaplains or priests, are considered, under the Geneva Convention, as en- titled to the benefit of neutrality, while in the exercise of their functions." For so long, therefore, they are not to be disposed of as are the mass of prisoners of war, but are to be left for the time to the performance of these duties. In our late civil war neither medical officers nor chaplains were held as prisoners of war, but on capture were forthwith " unconditionally " discharged." 1230 2. Their treatment." A prisoner of war, as it is expressed by •*The according by the United States to the forces of the Insurrectionary States, during the late civil war, the right, (with other belligerent rights,) of being held and treated as prisoners of war, upon capture, has already been referred to. See on this subject — Williams v. Bruffy, 96 U. S., 77 ; Ford v. Surget, 97 Id., 594 ; Dow v. Johnson, 100 TJ. S., 164; Brown v. Hlatt, 1 DlUoit, 372; Phillips v. Hatch, Id., 571; U. S. v. Wright, 5 Phllad., 599. "Manual S 22. See Lorimer, vol. 2, 65, as to "Correspondents of the Press." "Arts. II, III; Manual, Laws of War § 13, 14. " G. O. 60, 90, of 1862 ; Do. 190 of 1864. " On this subject note the significant Art. XXIV of the Treaty between the United States and Prussia, of 1785, containing regulations in regard to the treatment of prisoners of war, which, Bluntschli, Introduction, p. 38, observes, have since become " allgemeines Recht." This Article provides that — " to prevent the destruction of prisoners of war by sending " them into distant and inclement countries, or by crowding them into close and noxious " places, the two contracting parties solemnly pledge themselves to each other, and to the " world, that they will not adopt any such practice ; that neither will send the prisoners " whom they may take from the other into the East-Indies, or any other parts of Asia or " Africa, but that they shall be placed in some parts of their dominions In Burope or " America, in wholesome situations ; that they shall not be confined in dungeons, prison- " ships, nor prisons, nor be put into irons, nor bound, nor otherwise restrained in the use " of their limbs ; that the officers shall be enlarged on their paroles within convenient " districts, and have comfortable quarters, and the common men be disposed In canton- " ments open and extensive enough for air and exercise, and lodged in barracks as roomy " and good as are provided by the party in whose power they are for their own troops ; " that the officers shall also be dally furnished by the party in whose power they are with " as many rations, and of the same articles and quality, as are allowed by them, either in " kind or by commutation, to officers of equal rank in their own army ; and all others shall " be dally furnished by them with such ration as they allow to a common soldier in their " own service ; the value whereof shall be paid by the other party on a mutual adjustment " of accounts for the subsistence of prisoners at the close of the war ; • • • that each 790 MILITAKY LAW AND PRECEDENTS. Lleber," " is the prisoner of the government, not of the captor." Or — as the Institute gives it ™ — " Prisoners of war are at the disposal of the enemy government, not of the individuals or corps which have captured them." They are therefore to be treated with humanity and with the consideration befitting their public relation.' Even when retaliatory measures may be resorted 1231 to in regard to them, no disproportionate severity should be practised. As prescribed in our Army Regulations * — " Bach shall be treated with the regard due to his rank." The Government Is charged with their maintenance, which includes food, clothing if necessary, and proper lodging and medical at- tendance.' The belligerents may well unite in an agreement covering the par- ticulars of the maintenance of their prisoners. In the absence of such an agree- ment, they are in general to be placed, according to the Brussels Projet,' on the same footing as regards food and clothing as the troops of the Government who made them prisoners. The Manual of the Institute prescribes more specifically that, " in default of agreement between the belligerents on this point, prisoners are given such clothing and rations as the troops of the capturing State receive in time of peace." ' Lieber " says, generEUly, — " Prisoners of war shall be fed upon plain and wholesome food whenever practicable." In our late civil war It was ordered, by the Secretary of War, that prisoners of war " receive for subsist- ence one ration each without regard to rank,' and " — ^It is added — " the wounded are to be treated with the same care as the wounded of the Army. Other allow- ances to them will depend on conventions with the enemy. • * * The Com- missary General of Prisoners," (an officer created and appointed for the purposes of the maintenance, care, custody, paroling, &c., of prisoners of war,') " will establish regulations for Issuing clothing to prisoners." 1232 If the captor is without the means of subsisting his prisoners, he should release them on parole. In the early part of our late war, prison- ers were sometimes paroled under such circumstances. Thus in June, 1862, sixteen hundred U. S. soldiers, taken by the enemy at the battle of Pittsburg "party shall be allowed to keep a commissary of prisoners, of j^helr own appointment, " with every separate cantonment of prisoners in possession of the other, which commissary " shall see the prisoners as often as be pleases, shall be allowed to receive and distribute " whatever comforts may be sent to them by their friends, and clball be free to make his " reports in open letters to those who employ him ; but if any officer shall break his parole, " or any other prisoner shall escape from the UmltB of his confinement after they shall " have been designated to him, such indlvldnal officer or other prisoner shall forfeit so " much of the benefit of this article as provides for his enlargement on parole or canton- " ment." "• Instructions i 74. "» Manual | 61. And see Project, Brussels Conf«ence, Art. 23. "As to the treatment In general of prisoners of war, see Vattel, 353 ; Manning, ch. Vin ; Woolsey % 128 ; Halleck, 430, 437 ; Ueber, Inst. { 66, 72-80 ; G. O. 190 of 1864 ; Do. 23, Dept. of Kans., 1864 ; Clrc, Office, Com. Gen. of Prisoners, April 20, 1864 ; Pars. 129T, 1298, 1302, 1305, 1309, A. R. of 1881. • Par. 1297, A. R. of 1881. • Note In this connection the yearly appropriation by Congress — the last is that of Tebni- ary 12, 1895 — ^for " maintenance and support of the Apache Indian prisoners of war." 'Art. 27. • Part II i 69. •Inst § 76. 1 The daily army ration at this time consisted of the following — " One pound and a quar- ter Ot beef, or three-quarters of a pound of pork, eighteen ounces of bread or flour, and at the rate of ten pounds of coffee, fifteen pounds of sugar, two quarts ot salt, four quarts ot vinegar, four ounces of pepper, four pounds of soap, and one pound and a halt ot candles, to every hundred rations." Sec. 1146, Rev. Sts. ■ Tbls office was no sinecure ; the number of prisoners captured and held during the war by tiM federal forces being 227,570 — a number since only exceeded by that ot the prlaonen taken by the Germans In the Franco-German war, which amounted, according to BlantMbH, (1601), to 11,160 officers and 338,886 soiaieta. MILITARY LAW AND PEECBDBNTS. 791 Landing, were received at Nashville, Tenn., having been paroled by the Con- federate authorities " in consequence of their being unable te feed them." ' A belligerent should be permitted to maintain, or assist in maintaining his sol- diers held as prisoners by the enemy, when the latter cannot adequately subsist them. In 1865, by the order of the Secretary of War, " large quantities of pro- visions and clothing " were sent, through our Agent of Exchange at Fort Monroe, to Richmond, to be distributed to the federal soldiers there held as prisoners of war." The camp or station at which prisoners are held till exchanged or paroled should be a healthful site, and reasonable opportunities for exercise and recrea- tion should be afforded therewith." It Is declared by the Institute" that prisoners of war " can be confined In a building only when such confinement la indispensable for their safe detention." In our civil war, it was ordered that — " sick and wounded prisoners of war will be collected at hospitals designated under the instructions of the Surgeon General for their exclusive use, so far as practicable." " We have seen that the status of war Justifies no violence against a prisoner of war as such, and subjects him to no penal consequence of the mere fact that he is an enemy. For a commander to disembarrass his army of the presence and charge of prisoners of war by taking their lives would be a barbarity which 1233 would be denounced by all civilized nations." Where a captive entitled to be treated as a prisoner of war is put to death, or where unlawful, unrea- sonably harsh, or cruel, treatment of prisoners Is practised or permitted by one belligerent, the other may, as far as legally permissible, retaliate; " and any In- dividual officer resorting to or taking part in such act or treatment is guilty of a grave violation of the laws of war, for which, upon capture, he may be made criminally answerable." Two leading examples of such jurisdiction in our late • V Keb. Rec, 23. "Animal Report of Secretary of War for 186S, p. 1075. *> See Lieber, Inst. | 75 ; Project, Brussels Conference, Art. 24 ; also Bluntschll i 601, condemning certain treatment of prisoners in our civil war. It may be remarked tbat tbe most authoritative condemnation of the treatment to which the prisoner; of war at Andersonville were subjected in 1864, was that pronounped by the confederate sur- geons — ^DrS. J. C. Bates,. 6. G. Roy, A. Thornburg, F. G. Castlen, B. J. Head, G. S. Hop- kins, and G. L. B. Rice. (Trial of Capt. Henry Wlrz.) " Manual, Part 11 S 66. » Par. 1302, A. R., 1881. " In 1 Jour. Cong., 404, the Continental Congress denounces the killing of our soldiers, when surrendered as prisoners of war, by Indians in the service of the British, near Montreal, in May, 1776, as a " gross and inhuman violation of the laws of nature and nations." A similar crime in the Instance of the massacre of American prisoners of war, taken at the River Raisin, Ky., in January, 1813, by the British forces under Col. Proctor, is especially denounced In the Report of the Committee of the Ho. of Reps., dated Jiily 31, 1813, published in American State Papers, Military Affairs, vol I, p. 839. And see Brackenridge, Hist. War of 181L', pp. 91-93. On the other hand, Marion's men, of the American army in the Revolutionary war, are charged, (in common with their opponents,) with taking the lives of prisoners of war captured by them, " even contrary to agreements of surrender." Slmm's Life of Marion, 165, (cited by Prof. Lieber in his " Guerilla Parties.") It would hardly be supposed that such barbarities could be repeated in our day, and they certainly could not be in any civilized warfare. But see the reports of tbe atro- cious treatment of prisoners of war and of non-combatants by the Turks, as also, in some localities, by the Russian " Irregulars," (as Cossacks and hasht-bazouks,) during the war of 1877-8 — as published by Mackenzie, " Nineteenth Century," p. 409 ; Oilier, " History of the Russo-Turklsh War," vol I, p. 34, 35, 419 ; Norman, (Times Correspondent,) "Ar- menia and the Campaign of 1877," p. 190, 407 ; " The War Correspondence of the Dally News," vol. 2, p. 85-87, 165-166, 191-195, 521-530. « See post — " Enforcement of the Laws of War." "Lieber, Inst § 69. 792 MILITARY LAW AND PRECEDENTS. war were the cases of Captain Henry Wirz " of the confederate army, and his employee James W. Duncan," who, on being themselves taken prisoner at 1234 the end of the war, were brought to trial by military commission, respec- tively at Washington in the fall of 1865 and at Savannah in March, 1866, for cruel treatment and unlawful killing of prisoners of war under their charge at Andersonville, Georgia, and, on conviction, were sentenced, the one to be hung, and the other to imprisonment at hard labor for fifteen years. Prisoners of war are not to be deprived, upon capture or while held as pris- oners, of the private property in tlieir possession, except such as is intended for or adapted to military use — as arms, ammunition, or horses.** Other per- sonal effects are considered, and remain, their own property." To deprive them, for example, of their proper clothing, or of such necessary articles as their watches, would be illicit and punishable. But large sums of money, "found and captured in their train," cannot, observes Lieber," be claimed by them " as private property." 3. Employment. Prisoners of war cannot be required to furnish any in- formation in regard to their own government, country, or army. Nor can they be compelled to take any part whatever in the military operations of their captor, or to perform labor or service of a military character." They may however be employed to a reasonable extent, or for a proper compensation, upon other public work : according to Lieber,'' " they may be required to work for the benefit of the captor's government, according to their rank and condi- tion." A more modern declaration on this subject by the Institute" is 1235 as follows — " They may be employed upon public works which have no direct relation to the operations carried on iu the theatre of war, pro- vided that labour be not exhausting in kind or degree, and provided that the employment given to them is neither degrading with reference to their military rank if they belong to the army, nor to their official or social position if they do not so belong." Such prisoners may also be permitted to perform work for private employers, the accruing wages to be held or expended for their benefit." 4. DiBcipline. Prisoners of war must conform to the laws, regulations and orders in force in the enemy's army, or country, and applicable to them, must requite consideration with good faith, not concealing their true names, rank, " G. C. M. O. 607 of 1865 ; Ex. Doc, No. 23, Ho. of Eeps., 40th Cong., 2d Sess. " G. C. M. O. 153 o( 1866. In a third case, that of Major John H. Gee of the same army, tried at Raleigh, No. Ca., In 1866, by military commission, for violation of the laws of war in failing to taice proper care of the federal prisoners of war in his charge at Salisbury, No. Ca., in 1864, and In causing the death of several of the same, the accused was acquitted. Upon the subject of the treatment of federal soldiers when made prisoners during the late war, see, further, the ofBcial House Report, No. 5, 40th Cong., 3d Sess., (1869.) »" " Prisoners of war will be disat-med and sent to the rear." (Par. 1296, A. R., 1881.) " Prisoners' horses will be talcen for the Army." (Par. 1297, Id.) "° Project, Brussels Conference, Art. 23 ; Manual, Laws of War | 64. "Inst, i 72. " Project, Brussels Conference, Art. 26 ; Manual, Laws of War, §• 70. In the annual Report of the Secretary of War for 1865, p. 1079, it Is stated that some eight hundred colored troops of the federal army, taken prisoner by the enemy, were put at work as laborers upon the fortifications of Mobile, In 1864 — an unwarranted disposition justify- ing retaliation. «Inst. S 76. "Manual, Part II 8 71. And see Project, Brussels Conference, Art. 25. Hall, (p. 344,) writes that the expenses of their maintenance " may be recouped by their employ- ment on work suited to their grade and social posltlton, provided that such work has no direct relation to the war." » Project, Art 25 ; Manual i 72. MILITARY LAW AND PRECEDENTS. 793 &c.," and for Insubordinate or contumacious conduct must expect disciplinary measures. A prisoner, however, should not be required to undergo confinement unless " Indispensable for his safe detention ; " " or unless he be made the subject of a legitimate retaliation, as hereafter to be noticed. Escape by a prisoner of war is not an otfence for which as such he is liable to punishment ; " but as his safe-keeping is a first duty on the part of the captor, an attempt to escape may be prevented even by firing upon the prisoner after he has been summoned to halt, and in an extreme case the taking of life may be justified. But If recaptured, he Is not to be punished as for an ofEence, but " solely in a disciplinary manner," or he may be subjected " to a stricter surveillance." If he succeed in effecting his escape, and is subsequently retaken as a prisoner of war, he cannot be punished for the escape, unless Indeed he was at the time under a parole not to escape, "in which case he may be deprived of his rights as prisoner of war." °° 1236 For any material violation Indeed of the laws of war committed before his capture, a prisoner of war is amenable to trial and punishment after capture." 5. Exchange and Parole. The exchange of prisoners of war is usually effected by means of a formal written agreement entered into by the opposing belligerents termed a Cartel of exchange. This is a convention of a solemn character, imposing an obligation " for the fulfillment of which the national faith Is pledged." " In it are set forth the conditions upon which exchanges will be made and the times and places of the delivery of prisoners, &c.°' Cartels usually provide — 1st, that prisoners of the same grade shall be exchanged officer for officer and man for man ; 2d, that ofiicers of the higher ranks may be exchanged for a certain number of individuals of a lower rank, according to a stated scale of equivalents.'" Thus in the cartel of exchange entered into between the United States and the Confederate States in July, 1862," it was stipulated that a General Commanding or an Admiral should be exchanged for an officer of equal rank, " or for .sixty privates or common seamen ; " and so on through the lesser grades, a Captain, for example, being declared exchangeable for an equivalent of six privates, a Lieutenant for four, and a non-commissioned officer foje two. It was further stipulated that " If citizens held by either party, on charges, are exchanged, it shall only be for citizens," adding — " captured sutlers, " It was ordered, during the late war. In regard to prisoners of war, that — " any one who Intentionally misstates bis rank forfeits the benefit of his parole and Is liable to punishment." G. O. 49 of 1863. « Manual, Laws of War § 60 ; Project, Brussels Conference, Art 24. The Confeder- ate general and raider, John Morgan, was, upo.n capture, NoTcmber 1st, 1863, confined, with officers of his command. In the penitentiary at Columbus, Ohio. He escaped with six of his officers,. Nov. 27th. VIII Eeb. Rec, 1, 16. " " It is the duty of a prisoner to escape If able to do so." G. O. 207 of 1863. And see Bluntschll § 602. » Manual, Laws of War, % 68; Project, Brussels Conference, Art. 28; Bluntschll § 609, 611, Lleber's Inst., 77, 78. ■° "A prisoner ot war remains answerable for his crimes against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities." Lleber, Inst. § 59. And see Do., Mlscel. Writings, vol. 2, p. 294, 297. »» U. S. V. Wright, 5 Phllad., 599. M See par. 1316, A. E. of 1881. " It is remarked by Manning, Commentaries on the Law of Nations, p. 163-4, that all cartels " coincide in the principle of exchanging according to grade, with the single excep- tion that, in 1793, the French Convention decreed that they would only exchange prisoners on the condition of exchanging man for man without any distinction as to grade." « Published in G. O. 142 of Sept. 25, 1862. 794 MILITABY LAW AND PRECEDENTS. teamsters, and all ciylllans In the actual service of either party, to be exchanged for persons in similar positions." The modern law of war contemplates that the exchange and discharge 1237 of prisoners of war shall ensue reasonably promptly upon capture." A cartel may provide for an immediate or absolute discharge, or a dis- charge on parole. The parole in Its simplest form is a pledge to the effect that the prisoner will not bear arms against the government or armies of his captor during the pending war unless sooner duly exchanged. He may In general, In the absence of specific stipulation to the contrary, legally perform "Internal service such as recruiting or drilling recruits," " garrisoning posts not on the theatre of war, and — as it is declared in a General Order Issued during the last war with Great Britain — " guarding stores and provisions of war in the interior," and " paying the troops and malting purchases on account of the United States."" It is preferable that the cartel should Indicate specifically what service may or not be performed by the prisoner under parole. Thus in the ofilclal cartel of 1862, above cited, it was prescribed as follows — "Art 4. AU prisoners of war to be discharged on parole in ten days after their capture. * • ♦ Those paroled shall not be permitted to take up arms again, nor to serve a^ military police or constabulary force In any fort, garrison, or field work held by either of the respective parties, nor as guards of prisons, depots or stores, nor to discharge any duty usually performed by soldiers, until ex- changed under the provisions of this cartel." And It Is recapitulated — "The parole forbids the performance of field, garrison, police or guard, or constabu- lary duty." Under this cartel it was held by the Attorney General that the United States government would not be authorized to employ paroled prisoners In repelling an invasion or suppressing an outbreak of hostile Indians." In the capitulation agreed upon between Gens. Grant and Lee, of April 0, 1865, It was stipulated that each officer should give a parole under oath, for himself, (and also for the men under his command, when a commanding officer,) that he (and they) would not thereafter serve In the armies of the Confederate States or In any military capacity whatever against the United States of 1238 America, or render aid to the enemies of the latter, until exchanged ; and that prisoners, on being paroled, should be at liberty to return to their homes. It was held by the Attorney General that this meant homes in the insurrectionary States, and that paroled prisoners could not legally return to homes in any loyal States, or publicly appear in their uniform therein, pending the war." No military person other than a commissioned officer can regularly give a parole: where the paroles of enlisted men are to be given they should be rendered by their commanding officer, for them." Paroles should be specific: Indiscriminate or wholesale paroling, as of troops on the battle field, or of a detachment in mass, is unauthorized." Paroles must also be voluntary; they cannot be compelled : on the other hand, a prisoner cannot claim, as a right, to be admitted to parole." And the engagement of a parole is always subject to ■ See pogt— Art. 4 of the Cartel of 1862. ■• Lleber, Inst. ! 130. See Hall, International Law, 346. " G. O., Feb. 14, 1814. And see Do. 13, Dept. of the Mo., 1861. " 10 Opins., 357. A paroled prisoner cannot exercise a belligerent right, and therefore cannot assume to make a capture of property, though the same be per ae legally a subject of capture. Beck v. Ingram, 1 Bush, 356. " 11 Oplns., 204. The cessation of war and return of peace duly announced releases a paroled prisoner from his parole and from the military jurisdiction — see 12 Id., 120, 382 ; Lleber, " Status of Rebel Prisoners of War," Miscellaneous Writings, vol. 2, p. 298. " G. O. 49 of 1863. *^ Lleber, Inst. S 128 ; G. O. 49 of 1863. *' Project, Brussels Conference, Art. 82 ; Manual, Laws of War | 77. O. O. 49 of 186S. MILITARY LAW AND PRECEDENTS. 795 the approval of the government, which, If It has not already committed Itself by agreement on the subject, may refuse to ratify and withdraw the privilege accorded." Thus the paroles allowed to be given by Burgoyne and the British and German officers of his command, which permitted them to return to their countries in Europe, were at one time disapproved by Congress and required to be recalled." Paroles tendered or taken without authority are of no validity and not en- titled to be respected, and the permitting of or subscribing to such paroles Is a punishable offence. In the G. O. of 1863," already cited, containing " Rules in regard to paroles established by the common law and usages of war," it is said — "■The pledging of any unauthorized military parole is a military offence 1239 punishable under the common law of war." In a later Order of the same year," it is further declared, by the Secretary of War, that paroles allowed by " others than commanders of opposing armies " are " in violation of General Orders and the stipulations of the cartel, and are null and void. They are not regarded by the enemy, and will not be respected In the armies of the United States. Any officer or soldier who gives such parole will be returned to duty without exchange and moreover will be punished for dis- obedience of orders." Where a parole has been duly pledged, its terms must of course be scrupu- lously observed by the prisoner," and his government, on Its part, must " neither require nor accept from him any service Inconsistent with the pledge." It is laid down by Lleber" that a breach of parole "is punished" (meaning doubt- less punishable) " with death when the person breaking the parole Is captured again." Later codes express the law In a milder form. They prescribe that prisoners liberated on parole and afterwards retaken carrying arms In the same war against the parellng belligerent " may be deprived of the rights of prisoners of war, unless " — It Is added — " they have been Included among prisoners exchanged unconditionally under a cartel of exchange negotiated sub- quently to their liberation." " The offence of breach of parole, which was a comparatively rare one during our civil war," was so frequent during the 1240 war with Mexico that offenders were publicly threatened with hanging by General- Scott, and the signing of the parole was required to be accom- panied by the taking of a religious oath." " A parole is given by an officer " only with the stipulated or implied consent of his own goTernment. If the engagement which he makes is not approved by his government, he is bound to return and surrender himself as a prisoner of war." Q. 0. 49 of 1863. " Secret Journals of" Congress, vol. 1, p. 216. "No. 49. "No. 207. " In U. S. V. Wright, 5 Philad., 699, it was held that his parole was binding upon a prisoner of war though a minor j that the fact of his minority did not entitle him to be discharged from military custody before his exchange. And see Lockington's Case, Brightly, 276. "Inst. § 124. *" Manual, Laws of War § 78. And see Project, Brussels Conference, Art. 33. I" See cases In 6. C. M. O. 110 of 1864 ; O. O. 36, Dept. of the Gulf, 1862, (case of six prisoners sentenced to death, and shot accordingly, for violating their- parole by render- ing service to the enemy;) Do. 6, Middle Mil. Dept., 1865; Do. 71, Dept. of La., 1865; V Keb. Eec, 57. In S. O. 231, Dept. of the Gulf, 1862, the parole of a prisoner of war Is " revoked " on account of his having conducted a hostile newspaper. Among the prisoners taken at Chattanooga were found a large number who had been paroled on the capture of Vicksburg. Upon inquiry, addressed by Gen. Grant to the War Department, whether he should proceed against them by ordering them shot according to the usages of war, this course was not approved on the ground that it would be " manifestly unjust to execute soldiers who had been required by their government to break their parole." Till Eeb. Kec, 16. '^ Ex. Doc. No. 56, 1st Ses. H. R., 30th Cong. ; Halleck, 438. Several Mexican officers were tried and sentenced to death for this ofCence. See 14 Opins, At. Oen., 261. - 796 MILITARY LAW AND PRECEDENTS. Interning by a neutral. In connection with the subject of Prisoners of War may well be noticed the usage as to the " mteming " of troops who have avoided being made prisoners by an enemy, by taking refuge within the terri- tory of a neutral power. " It Is universally admitted," declares the Institute of International Law," " that a neutral State cannot lend assistance to bel- ligerents, and especially cannot allow them to make use of its territory without compromising Its neutrality. Humanity, on the other hand, demands that a neutral State shall not be obliged to repel persons who beg refuge from death or captivity." Hence, when bodies of troops or individuals of the armies of a belligerent are driven or escape within the boundaries of a neutral neighbor — as In the case of Bourbakl's army entering Switzerland, and the contingents that crossed into Belgium after the battles on the Meuse, in the late Franco- Prussian war — such neutral does not and cannot make them prisoners, but interns them, t. e. takes charge of and holds them, with their arms and other materiel of war at some appointed station within its limits. At this station, which Is usually one as distant as practicable from the theatre of the war, the neutral, in the absence of any special convention regulating the matter, main- tains the interned troops, and, if necessary, clothes them, and renders them such medical or other aid as humanity may require — for all which it is repaid by their government at the conclusion of the hostilities. OfiBcers of an interned force may, in the discretion of the interning State, be paroled on the condition of their not leaving the neutral domain without special authorization. From the restraint of Internment are excepted sick and wounded persons of a bel- ligerent army, desired to be moved across neutral territory. Of these the transport Is permitted provided they are accompanied only by persons of the hospital staff, and that no materiel of war, (except such as is required for their actual use,) is conveyed with them." 1241 We have had as yet no Instances of the Interning by a neutral of our troops in any of our wars, or of the Interning by our own government of troops of warring neighbors. VI. ENFOB.CEMENT OF THE LAWS OF WAB. In the event of vio- lations of any of the laws of war above set forth, the offenders, as a matter both of justice and policy, should be brought to punishment if they can be reached. As it is expressed in the Manual of the Institute," — " when Infractions of the foregoing rules take place, the guilty persons should be punished, after trial, by the belligerent within whose power they are." Offenders of this class have, with us, been brought to trial by Militaet Commission, and punished with death or imprisonment. Where the offender cannot be reached, or where, being a member of the army or subject of the government of the enemy, the latter refuses or neglects to bring him to trial, the only remedy of the belligerent against which, or against a citizen or citizens of which, the infraction of law has been Injuriously com- mitted, is by retaliation or reprisal. Betaliation. Thus the unwarranted treatment of prisoners of war by an enemy may be retaliated by similar treatment of the prisoners taken from him or by the specially holding of them for such treatment." As where. In our Revo- lutionary War, In 1776, when the British proposed to treat Maj. Gen. Charles Lee, on his being taken prisoner, as a deserter from their army. Congress caused a Lieut. Col. of that army, and five Hessian field officers, prisoners of war in our B Manual, Part II, (IV.) »» Project, Brussels Conference, Arts. 53-56 ; Manual, Laws of War, { 79-83. "Part III — Penal Sanction. ** "All prisoners of war are liable to the infliction of retaliatory measures." Ueber, Inst, i 59. MIUTAKY LAW AND PRECEDENTS. 797 bands, to be placed in close confinement, to awajt the action taken in the case of Gen. Lee. So, In 1782, Captain Asgill of the British army was selected by lot, as a subject for retaliation for the unlawful killing of Captain Huddy of our army when a prisoner of war in the hands of the enemy. In 1813, forty-six English prisoners of war in our hands were placed in close confinement to abide tlie result in the case of the same number of Americans similarly confined by the British, a portion of whom had been sent to England for trial as alleged British subjects and deserters from the British army. In our recent Civil War, 1242 instances of similar retaliation or threatened retaliation were not unfre- quent." In July, 1863, for example, a striking order was made by Presi- dent Lincoln as follows — " It is therefore," (after reciting the facts inducing this action,) " ordered that for every soldier of the United States killed in viola- tion of the laws of war, a rebel soldier shall be executed ; and for every one enslaved by the enemy or sold into slavery," (referring to colored troops of our army,) " a rebel soldier shall be placed at hard labor on the public works, and continued at such labor until the other shall be released and receive the treat- ment due to a prisoner of war." A form of indirect retaliation has sometimes been practiced by the seizing of subjects of the enemy as hostages, and holding them iu confinement till in- demnity is furnished for wrong done, or till ofEend^s are surrendered for trial, Ac." Thus, in November, 1863, in view of the frequency of raids by the enemy's cavalry upon districts occupied in part by Unionists, and where there were no federal troops, there was issued by Maj. Gen. Grant, then commanding the Division of the Mississippi, an order in which occurs the following — " For every act of violence to the person of an unarmed Union citizen a secessionist will be arrested and held as a hostage for the delivery of the offender." "" By an order of Gen. Sullivan, commanding at Harper's Ferry, of January, 1864, it was directed that, ui)on the conscripting into the confederate army of any inhabitant of Berkeley, Jefferson, Clarke, or Loudoun County, Virginia, "the nearest and most prominent secessionist should be arrested and imprisoned, and held until the return of such conscript." ^ 1243 Retaliation may also be resorted to for other illegitimate acts, such as the seizure and imprisonment of peaceable citizens, or the appropriation or destruction of their property." It is a right, however, which will not justify » See instances in III Reb. Kec, 74 ; V Id., 52 ; VI Id., 24 ; VII Id., 24, 25 ; VIII Id., 22. In June, 1864, five general officers and lorty-flTe field officers of the U. S. army, prisoners of war in the hands of the enemy, were brought to Charleston, So. Ca., then under bombardment by the U. S. forces, and quartered in the part of th» city most ex- posed to the fire of their artUlery. Maj. Gen. Foster, comdg. the besieging army, pro- tested against the measure as one " unknown to honorable warfare." See the corre- spondence in XI Reb. Rec, 591-2. " G. O. 252, War Dept., 1863. " See Halleck, 673. •• G. O. 4, Mil. Dlv. Miss., 1863. And see an instance of similar action by Gen Mitchell, comdg. at Nashville, February, 1863, (VI Reb. Rec, 47 ;) also by Gov. Bramlette of Kentucky, January, 1864, (VIII Id., 328.) ■°An early instance, (May, 1861,) is noted in the Rebellion Record, (vol. I, p. 79,) of the stopping of a train on the Orange and Alexandria Railroad, and holding the pas- sengers as " hostages for the fair treatment of loyal citizens " who might fall into the enemy's hands. n See cases in V Reb. Rec, 23, 26, 56, 62 ; VII Id., 50, 481 ; VIII Id., 39. A peculiar instance which may here be cited is that which appears from S. O. 54, of Gen. Rousseau, comdg. in Alabama, of Aug. 8, 1862. On account of the killing of loyal citizens by lawless persons firing into railway trains, it is here ordered — " that the preachers and leading men of the churches, (not exceeding twelve in number,) in and about Huntsville, who have been acting secessionists, be arrested and kept in custody, and that one of them be detailed each day and placed on board the train on the road running by way of Athens and taken to Elk River and back, and that a like detail be 798 MILITARY LAW AND PBECEDENTS. a resort to means or measures repudiated by civilized ■warfare." Thus 1244 cruelty, Inhumanity, or gross and unjustifiable lnj^ry, practised or done by one belligerent, will not warrant a similar proceeding, by way of retaliation, on the part of the other. Beprisal. This further method, above specified, consists in the taking pos- session of property of the enemy or of his subjects, to be held as indemnity for injury Inflicted in Relation of the laws of war, or as security till a pecuniary indemnity be duly rendered." The modern codes and writers upon international law agree that reprisals, especially where Involving the seizure of private prop- erty, are not to be resorted to except in extreme and exceptional cases and can only be justified by necessity." In the Manual of the Institute " it Is observed — "In the grave cases in which reprisals become an imperative necessity, their nature and scope must never exceed the measure of the infraction of the laws of war committed by the enemy. They can only be made with the authorization of the Commander-in-chief. They must in all cases be consistent with the rules of humanity and morality." We have had little occasion to resort to reprisals as such in our wars. Some indeed of the contributions or assessments enforced during the late war, as instanced under the next Title," were rather of the nature of reprisal than of contribution proper. IV. THE STATUS OF MILITARY GOVERNMENT AND THE LAWS OF WAR THERETO PERTAINING. We have considered the laws and usages of war which govern the warfare of armies when engd^ed in active operations against an enemy in the field. We now come to thosfe i^rhich pertain to the powers and duties of a belligerent as a governor, when, with the exercise of military authority, may be coupled a func- tion of civil administration. made and taken to Stevenson arid back." An even stricter order of the German military authorities, in 1870, required that railway trains on the Cbemln de fer de I'Est should be accompanied by " well-known and respected " Inhabitants of the towns en route, who should be " placed upon the engine," and held as " hostages " to ensure the trains from attack or interruption, by francs-tlreurs, &c. This order has been severely criticized, (see, for example, Bluntschll S 600;) biit was certainly not without some Justification. " See Halleck, 444-5 ; G. O. 20, Dept. of Va., 1861 ; Do. 49, Dept. of the Mo., 1862. It may here be noted that, in the opinion of the author, the soundest, under the law of war, of the grounds advanced for the trial and sentence of the so-called " Emperor " Maximilian of Mexico, was his decree of Oct. 3, 1865, to the effect that all Juarists, <. e. supporters of'the existing republican government, taken with arms in their hands should be treated as bandits. (See D'Hericault, " Maxlmilien et Le Mexique," pp. 310, 335-6.) His own treatment, therefore, by the government of Juarez, when, after the departure lof the French army, it came into power, was but a form of retaliation. It may be added that, upon the capture of Maximilian with his generals Miramon and Mejia, the IT. S. Government made some attempt to induce their being treated as prisoners of war. Its dispatch on the subject, (Mr. Seward, Sec. of State, to L. D. Campbell, Minister, April 6, 1867,) was, however, never actually presented. In connection with the subject of retaliation, the student may be deferred to Q. O. 54, 69, 60, 111, A. & I. 6. O., Richmond, 1862, in which the Government of the Confederate States authorized and directed retaliatory proceedings on account of action taken by cer- tain federal commanders in the late war ; also Joint Resolution of the Confederate States Congress, " on the subject of retaliation," of May 1, 1863, incited mainly by the Procla- mations of the President of the United States, In reference to the emancipation of the slaves, of Sept. 22, 1862, and Jan. 1, 1863. •» Other forms of reprisal, at international law, are enumerated by Bluntschll | 600. "Project, Brussels Conference, General Principles, V; Id., Sec. IV; Woolsey i 118; Hall, 352. « Part III § 86. And see Project, Brussels Conference, Sec. IV i 69-71. •• Mli/ITABZ GoviBNUKNX — " BxactloD of Contributions," post. MILITARY LAW AND PRECEDENTS. 799 1245 MILITARY aOVEBNUIENT DEEIITES — SISTINOTXISHED EBOU MAKTIAL LAW. By mUitarv government Is meant that dominion exercised In war by a belligerent power over territory of the enemy Invaded and occupied by him and over the Inhabitants thereof. By most writers, prior to the appearance of the dissenting opinion of Chase, C. J., In Ex parte MllUgan," this species of government was designated In general terms as " martial law," and thus was confused with or not properly distinguished from the martial law proper " exerted at home under circumstances of emergency, and yet to be con- sidered. In the ease referred to, the Chief Justice describes Military Govern- ment as a form of " military jurisdiction to be exercised by the military com- mander under the direction of the President, In time of foreign war without the boundaries of the United States, or In time of rebellion and civil war wlfliln states and districts occupied by rebels treated as belligerents." Martial Law, on the other hand, he defines as an authority called into action, when the public danger requires it, in a locality or district, not of an enemy's country, but of the United States, and " maintaining adhesion to the general government." Military government— as the term is here employed — is thus a government ex- ercised over the belligerent or other Inhabitants of an enemy's country in war foreign or civil; martial law over our own immediate fellow citizens, who, though perhaps disaffected or in sympathy with the public enemy, are not them- selves belligerents or, legally, enemies. The occasion of military government is war ; " the occasion of martial law Is simply public exigency which, though more commonly growing out of pending war, may yet present itself in time of peace. The field of military government is enemy's country ; the field of martial law our own country or such portion of it as is Involved in the exigency. Military government is further distinguished from martial law in that, 1246 unlike the latter as commonly instituted, it calls for no formal proclama- tion or declaration of its inauguration, but exists simply as a consequence of the hostile occupation." A proclamation or public notice to the inhabitants, informing them of the extent of the occupation and of the powers proposed to be exercised, is a customary measure," but one not essential to the initiation of the status or Jurisdiction. AUTHOBITT FOB MILITABY GOVEBNMENT — ITS OEXEBAL EE- EECT. The authority for military government is the fact of occupation. Not a mere temporary occupation of enemy's country on the march, but a settled and established one. Mere invasion, the mere presence of the hostile army in the country, is not sufficient. There must be a full possession, a firm holding, a government de facto." " i Wallace, 141. Subsequently Indeed to the date of this opinion, the name " martial law " was sometimes, I think Inaccurately, applied to the status of military government in the insurrectionary States. See TJ. S. v. Diekelman, 92 U. S., 520. " Upon this point, see also Martial Law, post. " That military government may legally be continued In iello nondum cessante equally as in ftagrante tello, see Tfexas v. White, 7 Wallace, 400 ; Dow v. Johnson, 100 U. S., 168. And see also the subject of the military government under the Reconstruction Laws, post. " Jeffries v. State, 39 Ala., 655 ; G. O. 2, Dept. of the Miss., 1862. "Manual, Laws of War, ! 42. n " The government of the conqueror being de facto, and not de jure, it must always rest upon the fact of possession. * * • Not only must the possession be actually acquired, but it must be maintained." Halleck, 780. And see Id., 798 ; The Venice, 2 Wallace, 277. "A territory is considered to be occupied -nrhen, as the result of its Invasion by an enemy's force, the State to which it belongs has ceased to exercise its ordinary authority within it, and the invading State Is alohe in a position to main- tain order." Manual, Laws of War, g 41. But it is not necessary that the country should be actually conquered. Thus, wtlbln a week after their entrance Into France, In August, 1870, the Germans had Inaugurated 800 MILITAKY LAW AND PRECEDENTS. Military government, thus founded, is an exercise of sovereignty, and as such dominates the country which Is its theatre in all the branches of. administra- tion." Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the Inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist. Civil functionaries who are retained will be protected In the exer- cises of their duties.'* The local laws and ordinances may be left in force, and in general should be, subject however to their being in whole or in part 1247 suspended and others substituted in their stead — ^in the discretion of the governing authority." How such discretion shall be exercised will in general depend mainly upon the previous political relations of the belligerent powers, upon the present temper of thie Inhabitants and their officials, and upon the ability of the latter to preserve order and maintain justice. It may indeed happen that because of the incapacity of the local authorities to afEord pro- tection to the peaceable portion of the community, a strict military government may become a necessity." It is indeed a chief duty of the commander of the army of occupation to maintain order and the public safety, as far as practicable without oppression of the population," and as if the district were a part of the domain of his own nation. On the other hand, the people of the country, having passed under the authority of the occupying belligerent, are bound to render obedience to any new laws or edicts which he may impose. And in this com- pliance they will be protected by their own courts upon a subsequent resump- tion of authority by their government." Instances In our history of military government are presented in our Revo- lutionary war during the occupancy by the British- of Boston, New York 1248 and Philadelphia ; at Castine, Maine, when taken and held by the British in 1814-15 ; " and in the provinces of Mexico in the course of the con- quest of the same by our forces in 1846-7.* It was however during the late civil war, which, by reason of its exceptional proportions, was assimilated to a civil administration for the goTernment of Alsace and Lorraine, wbicb could not be said to be as yet conquered. (Edwards, " The Germans in France," p. 45.) Strasburg, for example, was not surrendered till September 27th. " "A victorious State takes the place of the sovereign of the vanquished." Manning, Commentaries on the Law of Nations, p. 135. " Project, Brussels Conference, Art. 4 ; Manual, Laws of War, § 45. " U. S. 17. Rice, 4 Wheaton, 246 ; Fleming v. Page, 9 Howard, 614 ; Cross v. Harrison, 16 Id., 164 ; Leltensdorfer v. Webb, 20 Id., 177 ; Ex parte MiUigan, 4 Wallace, 141 ; Texas v. White, 7 Id., 400 ; Coleman ». Tcnn., 97 TJ. S., 517 ; Kimbal v. Taylor, 2 Woods, 38 ; Rutledge v. Fogg, 3 Cold., 554 ; Hefferman v. Porter, 6 Id., 391 ; Murrell v. Jones, 40 Miss., 566 ; Jeffries v. State, 39 Ala., 655 ; State v. Hall, 6 Baxter, 3 ; Halleck, 776, 781, 798, 815 ; Project, Brussels Conference, Art. 3 ; Manual, Laws of war § 44. In Ketchum v. Buckley 99, U. S., 190, the Supreme Court, (citing Williams v. BrufTy, 96 U. S., 176,) say — referring to the local administration in the insurrectionary States — " It is now settled law in this court that, during the late civil war, the same general form of government, the same general law for the administration of Justice and the protec- tion of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterwards. As far as the acts of States did not impair or tend to impair the supremacy of the national authority, or the Just rights of the citizens, under the Constitution, they are in general to be treated as valid and binding." "As in the instance of our occupation of Mexico in 1847. See 6. O. 237, Hdqrs. of the Army, 1847. " A conquered people are not to be " wantonly oppressed." Johnson v. Mcintosh, 8 Wheaton, 589. '1 TJ. S. V. Rice, 4 Wheaton, 254. ™ U. S. ■». Rice, 4 Wheaton, 246 ; Thorington v. Smith, 8 Wallace, 9 ; U. S. v. Hay- ward, 2 Gallison, 501. * Fleming v. Page, 9 Howard, 614 ; Cross v. Harrison, 16 Id., 164 ; Leltensdorfer v. Webb, 20 Id., 177. MIUTAEY LAW AND PRECEDENTS. 801 an International wtir," that Military Government was more generally and variously exercised, and its nature more fully illustrated than at any previous period of our history. ITS TEBH. The status of military government continues from the Incep- tion of the actual occupation till the invader is expelled by force of arms, or himself abandons his conquest, or till, under a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the prevailing belligerent. In the last case, the termination of hostilities does not necessarily put an end to the military government but this may be con- tinued till adequate provision has been made for bringing the country under the civil governmental system of its new sovereign. Such was in substance the ruling of our Supreme Court in regard to the provisional government of New Mexico, acquired by our arms in 1846.*" BY WHOM EXEBCISES. Chief Justice Chase " describes military govern- ment as " exercised by the military commander under the direction of the President, with the express or implied sanction of Congress." Congress having, under its constitutional powers, declared or otherwise initiated the state of war, and made proper provision for its carrying on, the efficient prosecution of hostilities is devolved upon the President as Commander-in-chief. In this capacity, unless Congress shall specially otherwise provide, it will become his right and duty to exercise military government over such portion of the coun- try of the enemy as may pass into the possession of his army by the 1249 right of conquest. In such government the President represents the sovereignty of the nation, but as he cannot administer all the details, he delegates, expressly or impliedly, to the commanders of armies under him the requisite authority for the purpose. Thus authorized, these commanders may legally do whatever the President might himself do if personally present, and in their proceedings and orders are presumed to act by the President's direction or sanction." MAGNITUDE OE THE POWER — ITS LIMITATION. The power of mili- tary government thus vested in the President or his military subordinates is a large and extraordinary one, being subject only to such conditions and restric- tions as the law of war, in defining the particulars to which it may extend, imposes upon the scope of its exercise. As it is expressed by the Supreme Court, the governing authority " may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases save those which are found in the laws and usages of war. * * * In such cases the laws of war take the place of the Constitution and laws of the United Staites as applied in time of peace." "^ The nature and ex- *» Prize Cases, 2 Black, 636 ; New Orleans v. Steamship Co., 20 Wallace, 398 ; Cole- man V. Tenn., 97 U. S., 517 ; Dow v. Jobnson, 100 Id., 164 ; Brown v. Hiatt, 1 Dillon, 372; Phillips v. Hatch, Id., 571. ^ Leitensdorfer v. Webb, 20 Howard, 176. *■ In Ex parte Milligan, 4 Wallace, 141. ^ Cross V. Harrison, 16 Howard, 164 ; Hamilton v. Dillin, 21 Wallace, t3 ; Mochs. Bk. V. Union Bk., 22 Id., 276 ; Gates v. Goodloe, 101 U. S., 617 ; Clark v. Dick. 1 Dillon, 8 ; Porte v. V. S., Devereux, 108 ; Grlflin v. Wilcox, 21 Ind., 386 ; Hefferman v. Porter, 6 Cold., 391. " The general officers of the army in the field are under the actual or implied direction of the President in all their movements." Allen v. V. S., 27 Ct. CI., 90. ™ New Orleans v. Steamship Co., 20 Wallace, 394. "This language, strong as it may seem, asserts a rule of international law, recognized as applicable during a state of war." Daniel v. Hutcheson, 86 Texas, 61. That the power is measured and restricted only by the laws of war, see, also, Sorgeant on the Const., 330; 1 Kent, Com., 306; Flanders, Expos, of Const., 169, 184;fLlttle v. Barreme, 2 Cranch, 170; State v. Fairfield, Com, Pleas, 15 Ohio St., 377. 440593 0-42-51 802 MHJTAEY LAW AND PRECEDENTS. tent of these powers will be illustrated In considering the details of their exercise. FEATUSES OF THE EZEBCISE OF MII.ITABT OOVEBNSEENT — ^AF- POUTTHENT OP EXECUTIVE OFFICIALS. While the conquering bellig- erent may, if he see fit, abstain from changing the machinery of the civil gov- ernment of the enemy's country, he may, on the other hand, find it neces- 1250 sary or expedient, in view of the condition of the country, to appoint for the same competent civilians or military persons as commissioners, gov- ernors, mayors, sheriffs, secretaries of state, collectors of customs, &c., who, upon his nomination and under his orders, will legally supersede the existing officials and so far administer the government. As observed by the Supreme Court in the case last cited " — " The conquering power has a right to displace the pre-existing authority, and to assume, to such extent as It may deem proper, the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers, and clothe them with designated powers, larger or smaller, according to Its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or otherwise." In the leading case of Cross v. Harrison," the Supreme Court affirmed the legality, " under the law of arms and the right of conquest," of the civil gov- ernment established, pursuant to the orders of President Polk, by Gen. Kearney, in 1847, in Upper California, then in the possession of our forces as a conquered Mexican province. This government consisted mainly of military Officers appointed to act as civil officials, to wit : Col. R. B. Mason, 1st Dragoons, as Governor, 1st Lieut. H. W. Halleck, Engineer Corps, as Secretary of State, Capt. J. L. Polsom, A. Q. M., as Collector of Customs, &c. Col. Mason was succeeded by Bvt. Brig. Gen. B. Riley, who continued military governor till December 20, 1849, the date of the ratification and adoption of the first consti- tution of California. In the later case of Leitensdorfer v. Webb," the provisional civil government established by Gen. Kearney, in taking possession of New Mexico in 1846, was held, by the same Court, to have deposed the pre-existing municipal govern- ment, and to have been legally administered during the period of the possession of the country as a conquered province. During the recent war the appointment by the President, of Andrew 1251 Johnson, Edward Stanley and Geo. B. Shepley, as " military governors " of Tennessee, North Carolina and Louisiana, in March, May and June, 1862, respectively ; * and, in 1865, of Messrs. Holden, Sharkey, Johnson, Hamil- ton, Parsons, Perry and Marvin as "provisional governors" of North Caro- lina, Mississippi, Georgia, Texas, Alabama, South Carolina and Florida respec- tively,"— presented further examples of an exercise, by the prevailing bel- ligerent, under the laws of war, of the power to govern hostile states held by M New Orleans v. Steamship Co., ante. And see State v. Hall, 6 Baxter, 3. " 16 Howard, 164. And see Fleming v. Page, 9 Id., 614, as to the authority of the collector appointed by the military commander at Tampico. "■ao Howard, 176. •• See Rutledge v. Fogg, 3 Cold., 554, affirming the constitutionality of the appointment of the military governor of Tennessee. " The authority of the President to establish these provisional governments during the war Is affirmed In Texas v. White, 7 Wallace, 400. And see Handlin v. Wlckllffe, 12 Id., 173 ; Scott V. BlUgerry, 40 Miss., 119 ; McClelland v. Shelby Co., 32 Texas, 17 ; Shorter v Cobb, 39 Ga., 291 ; Shaw v. Carlile, 9 Helsk., 603. The mere fact of the " appointment by the President of a military governor for the State did not of Itself change " the local laws or procedure, as, for example, the " general laws then in force for the settlement of the estates of deceased persons." Ketchum « Buckley, 99 V. S., 190. MILITARY LAW AND PEECEDENTS. 803 Ws armies. In New Orleans, in 1862, the department commander repeatedly appointed civilians, or detailed military officers, to fill municipal offices." APPOINTMENT OF JUDGES AND CREATION OF COtrRTS.'" In the instance referred to In Leitensdorfer v. Webb, above cited, a part of the provi- sional government established In New Mexico by the commander of the invading army, and held legal and operative by the Supreme Court, was "a judicial sys- tem " consisting of a superior or appellate court, and circuit courts, whose jurisdiction was also specifically defined." 1252 In the late civil war there was established at New Orleans by the Presi- dent, by an order of October 20, 1862, a civil court entitled the " Provi- sional Court of Louisiana," with both civil and criminal jurisdiction." The authority of this court to hear and determine a cause in admiralty was sus- tained by the U. S. Supreme Court in The Grapeshot;" and its judgment for the recovery of a mortgage debt of $80,000, and execution Issued for the sale of the mortgaged premises, were by the same court recognized as valid in Burlie V. MUtenberger." As to its jurisdiction of crimes, this appears main- tained in an extended opinion of its judge, Hon. C. A. Peabody, in the cases of U. S. V. Relter and Louis, charged with murder and arson." The Supreme Court, further, In Mechs. & Traders* Bank v. Union Bank," affirmed the legality of a judgment rendered by another war-court — the " Provost Court of New Orleans," (established by the Department Commander in 1862," in an action for the recovery of a loan. of $130,000. Other Provost Courts, with a jurisdiction assimilated in general to that of jus- tices' or police courts, were established from time to time.by military commanders during the war ; as — for example — The " Provost Court of the Department of the Gulf," "" a " Provost Court for the Department of Virginia," ' a " Provost Court for the State of Texas," * a " Provost Court of the Department of Arkansas," * Provost Courts for the Posts of Vlcksburg and Natchez,' " Superior " and 1253 " Circuit " Provost Courts In Sub-Districts of the Department of the " S. O. 167, 210, 243, 491, Dept. of the Gulf, 1862. And see — as to the appointment of a mayor, &c., by these orders — New Orleans v. The Steamship Co., 20 Wallace, ikT. As to the exercise of the power of appointment of civil officials, as most freely resorted to under the military government established by the Reconstruction Laws, see Title Vll, post. "As It is said in State v. Hall, 6 Baxter, 3 — "He" (the "conquering power") "may adopt the tribunals of justice already existing, or abolish them and create others in their stead." " These courts " displaced and superseded 6Very previous institution of the vanquished or deposed political power which was incompakble with them." Leitensdorfer v. Webb, ante. As to the courts established by the British upon their occupation of New York in 1776-7, see Jones, History of New Torkj vbl. 2, p. 120. »* The order further appointed a pei-son named as judge of the court, and empow- ered him to appoint a prosecuting attorney, marshal and clerk for the same; these appointments " to continue during the pleasure of the President, not extending beyond the military occupation of the city of New Orleans, or the restoiatlon of the civil authority in that city and in the State of Louisiana." An interesting account of this Court is to be foiind in Moore's Rebellion Record, vol. X, pp. 341-346. '" 9 Wallace, 129. And see New Orleans v. Steamship Co., ante. " 19 Wallace, 519. And see Burke v. Tregre, 22 La. An., 629. " 13 Am. Law Reg., 534. And see Hefferman v. Porter, 6 Cold., 391. •»22 Wallace, 276. See this case also in 25 La. An., 387. " By G. C, Dept. of the Gulf, of May 1, 1862. >" G. 0. 45, Dept. Of the Gulf, 1863. » G. O. 41, Dept. of Va., 1863. " G. 0. 6, Dept. of the Gulf, 1864. • G. O. 12, Dept. of Ark., t^j. * G. O. 31, Dept. of Miss.|rfWS. 804 MILITARY LAW AND PRECEDENTS. South,' "Post Provost Courts" In the Department of South Carolina,' a Provost Court at Alexandria, Va., whose jurisdiction was confined to cases in which colored persons were interested.' The proceedings in civil cases of a further war-court, established by the t)e- partment Commander in Memphis in 1863, designated a " Civil Comnjission," has been the subject of judicial examination, and its jurisdiction has been sustained by the courts of Tennessee.' To cite a further instance — a " Court of Conciliation," consisting of three "Arbitrators," was established by Maj. Gen. Halleck at Richmond in ]865,' the function of which mainly was to adjudicate actions of debt " where the contracts were made upon the basis of confederate currency," which, It is added, " now has no legal existence." As to this class of courts, it Is to be said in general^that it is not only within tlie power of the commander, but, " for the security of persons and property and for the administration of justice," " it often becomes his duty, to establish the same ; that they are as legally authorized a.? any other courts of the land ; 1254 and that their orders, decrees and records are entitled to the same full faith and credit as those of any other lawfully constituted tribunals." As Illustrating the authority and jurisdiction of the courts established by military power during the occupation of the enemy's country in the late war, the remarks of Chief Justice Chase in his Address to the Bar, at Raleigh, No. Ca., in June. 1867, may well be cited, as follows : — " The national' military authori- ties took the place of all ordinary civil jurisdiction or controlled its exercise. All courts, whether state or national, were subordinated to military supremacy, and acted, when they acted at all, under such limitations and in such cases as the commanding general, under the directions of the President, thought fit to prescribe. Their process might be disregarded and their judgments and de- crees set aside by military orders. * * * The military tribunals, at that time, and under the existing circumstances, were competent to the exercise of all jurisdiction, criminal and civil, which belongs under ordinary circumstances to civil courts." The civil court, as a branch of the civil government under the law of war and conquest, should — it need hardly be repeated — ^properly be established by • G. O. 102, Dept. of the South, 1865 ; S. O. 9, State of So. Ca., 1866. • G. O. 37, Dept. of So. Ca., 1866. 'G. O. 103, Dept. of Washington, 1865. As to Provost Courts under the Reconstruction Laws, see under Title VII, poat. ' Ilefferman v. Porter, 6 Cold., 391 ; State v. Stillman, 7 Id., 341. • By G. O. 5, Div. of the James, May 3, 1865. It is declared in this Order that — " The fees charged will be simply sufficient to pay its expenses. Any surplus will be given to the poor. • * • No fees will be charged to the poor. * • • In its decisions the court will be governed by the principles of equity and justice. All alike, white and colored, will be allowed the benefit of its jurisdiction. All proceedings will be simple and brief, and directed solely to ascertaining and securing exact justice." By G. O. 10, Id., the juris- diction of the court was extended to the counties of Henrico and Chesterfield ; and by G. 0. 114, Id., (Gen. Terry,) to the entire Dept. of Va., " as to suits by loyal owners to recover possession of real or personal property, sold or disposed of by authority of the confisca- tion laws of the confederate government." An instance of a similar special court, called a " commission," consisting of three Mexi- cans as "Arbitrators," to determine an old litigated controversy as to the rights of two citizens to certain land, was established, in the Mexican war, by Gen. Wool, in G. O. 516 of bis Command, of 1847. "The Grapeshot, 9 Wallace, 129. " For further recognition of the authority of these war-courts, see Handlln ■». Wlcklifte, 12 Wallace, 173 ; Lanfear v. Mestier, 18 La. An., 497 ; Taylor v. Graham, Id., 656 ; Scott ». Billgerry, 40 Miss., 119 ; Murrell v. Jones, Id., 565 ; also Cooley, Prlns. Const. Law, 44, 87 ; Whiting, War Powers. 277. "Chase's Decisions, 133. MILITARY LAW AND PKECEDENTS. 805 the commander of the army of occupation. An inferior officer cannot in general be authorized to exercise such right of sovereignty." KESTBICTIONS TTPON COURTS. As incidental to the power last consid- ered, the President or army commander, in establishing new courts, or — espe- cially — where he leaves the existing courts in operation, may iihpiose upon the same such restrictions as to jurisdiction or procedure as he may deem requisite for the protection of loyal citizens, as well as of military persons or employees of the government. Specific instructions to this effect were given to 1255 commanders by the President in an order Issued from the War Depart- ment near the close of the war." Previously, however, orders had been made from time to time in the military departments, with a view to the extend- ing of similar protection against suits, prosecutions, or criminal process, as also against oppressive sales on execution, foreclosures, &c." Proceedings had also been prohibited or suspended as against other special classes of persons ; as, for example, suits, on the part of the original owners, against purchasers of con- fiscated property," and for rent against lessees of captured or abandoned estates." Subsequently to the General Order above cited, to wit, pend- 1256 ing the period of the execution of the Reconstruction Laws, a similar course of action was quite generally pursued by the district commanders, as will hereafter be specified. BEQTJISITIONS. An occupying army will ordinarily find it essential to re- sort in a greater or less degree to the country for the means of its main- tenance. In that case the articles needed should not be simply seized as by an army on the march or in the field, but if practicable formal requisition for the same should be made by the officer commanding upon the civil authorities, '= Snell V. Faussatt, 1 Washington, 271 ; 11 Opins. At. Gen., 86, 149. » G. O. 3 of Jany. 12, 1866. This order is in full as follows : — " To protect loyal persona against improper oivil suits and penalties in late rebellious States. Military Division and Department Commanders, whose commands embrace, or are composed of, any of the late rebellious States, and who have not already done so, will at once issue and enforce orders protecting from prosecution or suits in the State or Munici- pal Courts of such States, all oflBcers and soldiers of the armies of the United States, and all persons thereto attached, or in anywise thereto belonging, subject to military authority, charged with offences for acts done in their military capacity, or pursuant to orders from proper military authority ; and to protect from suit or prosecution all loyal citizens or persons charged with offences done against the rebel forces, directly or indi- rectly, during the existence of the rebellion, and all persons, their agents or employees, charged with the occupancy of abandoned lands or plantations, or the possession or custody of any kind of property whatever, who occupied, used, possessed, or controlled the same, pursuant to the order of the President, or any of the Civil or Military De- partments of the Government, and to protect them from any penalties or damages that may have been or may be pronounced or adjudged in said Courts in any of such cases ; and also protecting colored persons from prosecutions in any of said States charged with offences for which white persons are not prosecuted or punished In the same man- ner and degree." And see the detailed General Order, No. 2, Dept. of Washington, 1866, issued pursuant to the same ; also ruling approving same in State v. Cheek, 25 Ark., 206. "See G. O. 15, 113, Dept. of the Gulf, 1863; Do. 34, Dept. of the Mo., 1864; Do. 113, 124', Dept. of Va., 1865 ; Do. 38, Dept. of Fla., 1865 ; Do. 76, Dept. of La., 1865 ; Do. 3, Dept. ol So. Ca., 1865 ; Do. 7, Id., 1866 ; Do. 21, Dept. of Texas, 1866. In a few cases orders were issued prohibiting arrest or imprisonment for debt in general. G. O. 3, Dept. of Ala., 1865 ; and compare Do. 10, Second Mil. Dist., 1867, cited under Title VII, post. Magistrates, attorneys, or parties initinting or carrying on prohibited proceedings were made liable to arrest and punishment. See G. O. 113, 124, Dept. of Va., 1865. " G. O. 9, Dept. of Washington, 1 866. w G. 0. 31, Dept. of the Gulf, 1864. 806 MILITARY LAW AND PRECEDENTS. or upon the individuals possessing them. Such requisitions should be resorted to only for the supply of necessaries, and should not be excessive in amount. As it is expressed In the Manual of the Institute — " Supplies in kind (requisi- tions) demanded from districts or individuals must correspond to the generally recognized necessities of war, and must be proportioned to the resources of the country."" Due receipts — it is prescribed — should be given for all articles requisitioned where payment is not made at the time, in order that a future claim for payment may be properly evidenced." Requisitions have never been so generally resorted to as by the Germans in the Franco-Prussian war : they were commonly addressed to the mayor of the commune, and covered a great variety of articles, whether required in large or small quantities : receipts were invariably given." EXACTION OF CONTRIBXTTIONS. As a further feature of Military Gov- ernment, the commander of the occupying army, according to the weight of authority, is authorized by the laws and usages of war to exact pecuniary "contributions " from the conquered." In the language of the Brussels 1257 Conference, contributions may be imposed " only upon the order or on the responsibility of the General in chief, or of the superior civil author- ity established in the occupied territory." They may indeed be required by commanders of armies on the march, or in temporary possession of the country, but It is in general by virtue of an established occupation, or of a conquest for the time accomplished, that a formal contribution is called for or expected. Such contributions as have been exacted in nearly all the European wars, and conspicuously in the conquests of the English in India, are generally ex- pressed to be for the purpose of defraying the expenses of the war. A con- tribution may also be levied for the paying of the cost of the military govern- ment itself during the period of occupation. Or it may be justified as a penalty imposed upon the conquered nation for having initiated hostilities in violation of treaty or otherwise without legitimate excuse ; or as a commutation for the plunder to which the population would otherwise be subject, or a compensation for the protection of life and property and the preservation of order under circumstances of difficulty ; or as a mulct for the commission by the troops or people of the invaded country of acts specially injurious to the occupying army or to the persons under its protection." Contributions are generally exacted not from individuals but from the enemy government, or from communities in the mass — as from separate districts, towns, &c., and through the local authorities. Thus upon the conquest of Mexico in 1847, Gen. Scott levied assessments, " for the support of the American military occupation," upon the nineteen States of that Republic, in sums from $5,000 to "Part II, 56. And see Woolsey, (6th ed.,) 220. In a General Order of the Dept. of the Ohio, issued by Gen. Halleck, In 1862, It was directed that such requisitions should " be made as light as possible, and should be so distributed as to jfroduce no distress among the people." " See Project, Brussels Conference, Art. 42 ; Manual, Laws of War § 60 ; Lieber, Inst. S 38 and other authorities cited in last note. » See Edwards, The Germans in France, p. 49-50. " The onJy offlcevs who possessed the right of issuing requisitions were generals and commanders of detached corps." Id., p. 51. " Fleming v. Page, 9 Howard, 614. Cross v. Harrison, 16 Id., 189 ; Hamilton v. Dlllin, 21 Wallace, 73 ; Clark v. Dick, 1 Dillon, 8 ; Lewis •». McGuire, 3 Bush, 202 ; Hal- leck, 458, 460. That an inferior officer cannot, of his own authority, exercise this right, see Lewis v. McGuire. Bluntschll (§ 654) Is the principal authority contra. " The numerous contributions levied by German commanders in France, in 1S70-1. were in the majority of cases fhtes imposed for acts of this description. MILITARY LAW AND PRECEDENTS. 807 $668,332, the latter being the amount levied upon the Capital." Previously, 1258 In March of the same year, at Monterey, Gen. Taylor had made and enforced an assessment upon the inhabitants of Tamaulipas, New Leon and Coahuila, by way of indemnification for the pillage and destruction of his wagon trains." In the case of Fleming v. Page,*' the Supreme Court recognized as legal the establishing by the military commander of a custom house at Tampico, upon its occupation in 1847, and the levying through the same of duties on the foreign commerce of the country as " a mode of exacting contributions from the enemy to support our army," and therefore a legitimate war measure or " weapon of war." So, later, in Cross v. Harrison,*" the same Court recognized as valid the authority of the President to impose, at San Francisco in 1847, through the military commander, " duties on imports and tonnage as military contributions for the support of the government and of the army." In some instances special assessments have been resorted to for particular objects not of a military character, or for the benefit of classes or individuals. General Butler, as department commander, in 1862, levied about $700,000 upon individuals and corporations, (alleged to have aided and abetted the enemy,) for the benefit of the " destitute poor " of New Orleans ; " and it has been held that a subsequent commander, in 1864, was authorized in levying a tax of five dollars per bale on cotton brought into that city, to be applied to hospital, sani- tary and charitable purposes.* By an order of Gen. Halleck, made at St. Louis, (G. O. 24 of 1862) , the class of persons in sympathy with the enemy were assessed " for the benefit of the southwestern fugitives," and the seizing of property, if necessary to enforce payment, was directed. By an order of the Provisional Governor of Tennessee, of Dec. 13, 1862, a similar class of persons in Nashville were assessed for the support of the destitute families of persons who had been conscripted into the confederate armies. In a later order issued by Gen- 1259 eral Grant, dated "In the Field, Chattanooga, Tenn., Nov. 5, 1863,"" stringent directions were given for the indemnifying of " Union families " and "Union refugees," (who had suffered from raids or been driven from their homes,) by means of " assessments " to be made upon " secessionists of the neigh- borhood." Similarly, by an order of the commander at Memphis in 1863,°° resi- dent enemies, having property, were required to contribute to the support of refugees driven within our lines by " insurrectionary violence." And by a sub- sequent order from the same source "' assessments were levied upon a similar class of persons to indemnify loyal individuals for damages suffered by reason of the seizure or destruction of their property by parties engaged in illegal warfare. In some instances also the contribution was exacted with a view to the com- pensation or relief of the families of loyal citizens or of soldiers whose lives ^G. O. 287, 395, Hdqrs. of Army, 1847. Scott states in his Autobiography, (p. 582,) that there actually came Into his hands " about $220,000," of which $102,000 was ex- pended for the benefit of the soldiers, and $118,000 was sent to Washington for the pur- poses of the founding of an Army Asylum — the present " Soldiers' Home." Strictly, this latter, as being in the nature of an investment of the contribution for the profit of the Government, was not a legitimate use of the funds. See post, p. 833. « Jenkins, Hist, of Mexican War, 243. =»9 Howard, 614. "« 16 Howard, 189. "G. O. 55, 105, S. O. 247, Dept. of the Gulf, 1862. [As to other measures for the benefit of the poor of this command, see G. O. 19, 20, 21, 25, 30, 35, 55, 104, and S. O. 82, 166, 244, 246, Dept. of the Gulf, 1862.] !» Digest 470-1. And see Hamilton u. Dillin, 21 Wallace, 73. »G. O, 4, Div. of the Miss., 1863. *> G. O. 101, Sixteenth Army Corps, 1863. »G. O. 128, Id. 808 MILITAEY LAW AND PRECEDENTS. had been taken by guerillas or the like." For all contributions formal receipts should be given."" In the more modem European wars, the payment of the principal contribu- tion or indemnity exacted is generally made one of the conditions of peace and as such provided for in the treaty. Thus by the treaty between Austria and Prussia, at the end of the " Seven Weeks' War," of 1866, there was agreed to be paid by the former to the latter a contribution of forty million thalers. About half of the expenses of the war incurred by Prussia are said to have been covered by the contributions exacted from the defeated States, which, vrith that conceded by Austria, included ten million thalers from Saxony, thirty million gulden from Bavaria, eight million florins from Wfirtemberg, six mil- lion gulden from Baden, the same amount from the City of Frankfort, and three million florins from Hesse-Darmstadt. The more recent treaty 1260 between the German empire and France, at the close of the war in 1871, stipulated for a payment, within three years, by France, of an indemnity of five milliards of francs, which was secured by the occupation by the German forces, till the payment of the flnal instalment, of six departments in the north and east of France and the fortress of Belf ort. By the treaty of San Stefano, at the end of the Russo-Turkish war, March, 1878, the Sublime Porte became bound to reimburse the Emperor of Russia for the expenses of the war, by the payment of an indemnity of 1,410,000,000 roubles, for the greater part, however, of which sum, the Emperor, " in consideration of the financial embarrassment of Turkey," consented to " substitute " certain "territorial cessions" enumerated, but subsequently reduced by the treaty of Berlin. China, which, at the close of the war with the English and French in 1860, was subjected to a contribution of two millions sterling and a further payment of one hundred thousand pounds to the families of the murdered captives, hap recently, April, 1895, in her treaty with Japan, been required to render to tlie latter a war indemnity of 200,000.000 taels, made payable in six years, and secured by the occupation of certain territory. The lesser contributions required in modern times by commanders of Eure- pean armies have usually been in the nature of taxes or fines levied commonly after the manner and form of the assessments prescribed by the local law." SEIZTJRB AND APPROPRIATION OF PROPERTY — PubUc Real Prop- erty. It is the general rule that in war no mere occupation, however firm, operates to transfer the title of land, as territory, to the occupying power ; that this passes only when the right of conquest is confirmed iJy treaty." The bel- ligerent in possession thus ordinarily acquires and enjoys, prior to the peace, only the usufruct of immovable property. An exception may exist In the case of the capture of a special tract which had been acquired and used by the enemy for hostile purposes." A further exception has been recognized as growing out of the event of our late civil war. Thus, in the case of 1261 the premises, in Alabama, of certain iron works, purchased by the Con- »» G. O. 159, Dept. of the Mo., 1864 ; Do. 147, Dept. of the Gulf, 1864 ; Do. 6, Dept. of the Cumberland, 1864. In G. O. 3, Dist. of the Mo., 1862, Gen. Schofleld assesses upon " rebel sympathizers " in Missouri the sum of $5,000 for every soldier or Union citizen killed, and of $1,000 to $5,000 for every one wounded, by "lawless guerilla bands raised or sustained by " such sympathizers, and directs that the " full value of property destroyed or stolen " by similar agencies be collected from the sime class. " Project, Brussels Conference, Art. 41 ; Manual, Laws of War § 60. " Project, Brussels Conference, Arts. 5, 41 ; Manual. Laws of War § 58. = 1 Kent, Com., 110; Halleck, 447; Hall, 494; Project, Brussels Conference, Art. 7r Manual, Laws of War | 52. " U. S. K. A Tract of 1/and, 1 Woods, 475. MILITARY LAW AND PRECEDENTS. 809 federate States for military uses in 1S63, and captured by the federal forces in March, 1865, it was observed by the Supreme Court."— " Conquered ter- ritory is usually held as a mere military occupation until the fate of the nation from which it Is conquered is determined ; but if the nation Is entirely subdued, or In ease It be destroyed and ceases to exist, the right of occupation becomes permanent, and the title vests absolutely in the conqueror." And it was adjudged that the premises and property in question became, at the end of the war, vested In the United States and could legally be disposed of thereby, for the reason that the government of the Confederate States had then wholly ceased to exist — ^become extinct. Special exemptions. As in the event of an invasion,'" so, and a fortiori, upon the established occupation of the country of an enemy, the premises and buildings of public establishments devoted to religious, charitable, educational, literary or sanitary purposes, and the like, are by the common law of war, exempt not only from seizure, but unless necessity requires it, from use, in the exercise of the military government. If such buildings are required for the sick or wounded, such use should continue only during the emergency. Any unnecessary Injury done such institutions, or to historical monuments or col- lections, or works of science or art, is interdicted and should be severely pun- ished. Personality of the enemy. As to personal property of the enemy's govern- ment, the occupying belligerent may appropriate any valuables or material which have been In the use of the enemy, or are usable, for war purposes, such as moneys, arms and other munitions, supplies, means of transport, or other movable property. The modern codes specify that railway plant and stock, telegraph lines, steam or other vessels, (whether belonging indeed to the enemy government or to corporations or individuals,) may not, unless the necessities of war require It, be destroyed, but should be restored at the 1262 conclusion of hostilities.'* Their disposition, however, if of sufficient im- portance, would properly be provided for in the treaty of peace and settlement. PRIVATE PROPERTY. Except as already indicated, and subject to such taxes or contributions as the dominant authority may impose, all innocent private property of the individual inhabitants of an enemy's country occupied and held under military government, including moneys, securities, rents and proceeds, debts, and personal and household effects, remain, under the modern law of war, exempt, as a general rule, from seizure or adverse use, and the possession thereof by the private owners is to be respected. A still stricter rule should be applied here than where the district is invaded merely, not occupied. In a civil war, however, the property of persons known to be dis- affected win not always be treated as innocent. Thus in some instances during " U. S. V. Huckabee, 16 Wallace, 414. "sgee ante, page 780. "Project, Brussels Conference, Arts. 5, 6; Manual, Laws of War § 50, 51, 55. Note, in this connection, the legislation of July 31, 1802, by which Congress empowered the President to take possession of all the Bailroad and Telegraph lines in the United States for military purposes, and the order of the Secretary of War of May 25, 1862, announcing the taking possession of the same by the President, and directing " that the respective Railroad Companies, their officers and servants, shall hold themselves in readiness for the transportation of troops and munitions of war, as may be ordered by the military authorities, to the exclusion of all other business." The Companies here mainly had In view were those whose lines traversed enemy's country or communi- cated with it. At the end of the war they were fully reinvested In the possession «nd control of their property, and were In general settled witli and paid by the United States for the government transportation furnished b.y them. 810 MILITARY LAW AND PRECEDENTS. our late civil war the rents of buildings belonging to disloyal owners, absent within the enemy's lines, were collected and appropriated to public purposes, by the orders of the occupying commander. An example of such an order was that given by General Grant to General Sherman, in August, 1862, in regard to the collection of such rents at Memphis, Tenn., the lawfulness of which was subsequently affirmed by the U. S. Supreme Court." The amount of all such rents paid into the TJ. S. Treasury was, as officially reported, nearly four hun- dred thousand dollars." The above general rule, however, of the law of nations, is subject to an 1263 exception where private property is actually required to supply the needs of the troops of the occupying army. The belligerent right of appropria- tion under such circumstances, observes the Supreme Court in Dow v. Johnson," is " not extinguished by the occupation of the country, although the necessity for its exercise is thereby lessened." A fortiori such property may be taken where employed by the owner in unlawful trade and intercourse," or where used, or intended or held subject to be used, for the support or assistance of the enemy. Such, for example, were the rents above referred to, which were seized as a precautionary measure to prevent their accruing to the enemy's benefit. But especially such was the cotton so frequently seized by the national forces in the territory of the insurrectionary States during the civil war. The proceeds of this cotton was indeed the principal resource of the enemy for the prosecution of the war and the maintenance of the confederacy, and, though belonging to private individuals, it was repeatedly held by the Supreme Court to have been " hostile property and a legitimate subject of capture " — " as much so as the military supplies and munitions of war it was used to obtain." " In deference, however, to " the humane maxim of the modern law of nations which 1264 exempts private property of non-combatant enemies from capture as booty of war," " Congress by special legislation, during the war,** provided for the conversion of such cotton and all other captured private property into money and its deposit in the Treasury, subject to the claims of the original owners and their recovery of the same on proof of loyalty. The proceeds of the captured cotton thus sold and paid into the Treasury amounted to about fifteen millions " In Gates v. Goodloe, 101 D. S., 612. As to these, see reference, post. *' The exact amount, as it appears from the Annual Report of the Secretary of the Treasury for 1866, was — $392,004.41. In his Report of Nov. 28, 1894, the Chief of Mis- cellaneous Division, Treasury Department, states the aggregate of all rents received at $613,284.96. "100 V. S., 107. " Halleck, 496 ; Mitchell v. Harmony, 13 Howard, 133. « Whitfield V. V. S., 92 U. S., 170. " That cotton, though private property, was a legitimate subject of capture. Is no longer an open question in this court." D. S. v. Anderson, 2 Wallace, 404 ; U. S. -o. Padelford, 9 Id., 540 ; Haycraft i). U. S., 22 Id., 81. " It was the foundation on which the hopes of the rebellion were built. It was substan- tially the only means which the Insurgents had of securing influence abroad. In the hands of private owners, it was subject to forced contributions in aid of the common cause. Its exportation through the blocltade was a public necessity. Importing and exporting companies were formed for that purpose. It is not too much to say that the life of the Confederacy depended as much upon its cotton as it did upon its men. If they had had no cotton, they would not have had, after the first year or two, the means to support the war. To a very large extent it furnished the munitions of war and Icept the forces in the field. It was therefore hostile property and legitimately the subject of capture in the territory of the enemy." White, C. J., in Lamar v. Browne, 92 U. S., 194. And see Mrs. Alexander's Cotton, 2 Wallace, 404 ; Radich v. Hutchins, 95 D. S., 213 ; Young v. D. S., 97 Id., 58 ; Briggs v. U. S., 143 U. S., 346. In Coolidge v. Guthrie, Flippin, 97, it was held that an action would not lie against a military officer for the taking of cotton jure belli. « D. S. V. Klein, 13 Wallace, 137. " By the so-called " Captured and Abandoned Property Act " of March 12, 1863. MILITARY LAW AND PBECEDENTS. 811 of dollars; that of other miscellaneous property to nearly three millions. Of the proceeds of the cotton there was returned to owners or claimants an amount of upwards of ten millions of dollars imder the legislation referred to." In closing this subject it should be remarked that a non-combatant, who yields obedience in good faith to the occupying power, is entitled to protection against plunder or the levy of irregular contributions." And of course private property cannot properly be impressed, or taxes or contributions be assessed, except for public purposes. Private efCects or funds cannot be taken merely " to speculate upon or to increase the wealth or capital of the State." " It is also, to be noted that the right, under Military Government, to appro- priate the private property of enemies for any purpose is to be regarded as materially modified where, upon a permanent or continued occupation, an in- creased measure of protection to person and property has been guaranteed." So, where a commander, in occupying a country or town of the enemy, has formally pledged the government to the holding inviolate of the rights of prop- erty of individuals, the seizure of private property by the military authorities will not be recognized as legal." Thus an order given by Gen. Banks, com- manding at New Orleans in 1863, for the taking possession for military 1265 use of moneys belonging to enemies on deposit in banks of that city, was held by the Supreme Court to have been unauthorized for the reason that Gen. Butler, by his proclamation, on first occupying the city, of May 1, 1862, had given an express pledge of the character indicated.'" COMPULSORY EMPLOYMENT AND TKEATMENT OF INHABIT- ANTS. As a general rule, the inhabitants of territory occupied by an enemy cannot be compelled against their consent to take part in military operations of offence or defence against their own government or army. Nor can they be required (except by way of penalty for an offence, or to secure their good con- duct), to take an oath of allegiance or of obedience to the existing military government, or to the government of the enemy nation.'" Emergencies, however, may arise, when the population may properly be impressed to perform labor, or render quasi military service, for the purposes of the occupying belligerent; but such service cannot properly be extended to bearing arms as soldiers. Thus in the Franco-Prussian war the French peasants were frequently required by the German military authorities to work on the roads and on the railways, especially the Eastern Kailway, and to serve as drivers, their carts being at the same time requisitioned. By a General Order issued by ihe military com- mander at Memphis in 1863, district, division and brigade comnianders were required to impress all able-bodied persons so as to fill up regiments and batteries to their maximum." A similar order, (G. O. No. 4,) was made in the same year by the commander of the Department and Army of the Ten- nessee. As to any of such persons as may have been enemies, this action was not sanctioned by the laws of war. The treatment of the citizens of the district under military government should further, as it is declared by modern codes, be especially characterized " See Report of the Chief of Miscellaneous Division, Treasury Department, Nov. 28, 1894. « Lewis V. McGuire, 3 Bush, 202. " Taylor v. Nashville, &c., E. E., 6 Cold., 046. "Gates V. Goodloe, 101 U. &., 615; The Venice, 2 Wallace, 258. "Planter's Bk. v. Union Bk., 16 Wallace, 483. Compare the proclamation Issued by Gen. Scott at Jalapa, May 11, 1847, in which it is declared that the army " will respect private property and persons and the property of the Mexican church." Scott's Auto- biography, p. 549. «! Planter's Bk. v. Unioil Bk., ante. "» Project, Brussels Conference, Art. 36 ; Manual, Laws of War i 47, 48. » G. 0. 157, Sixteenth Army Corps, 1863. 812 MILITARY LAW AND PRECEDENTS. by a respect shown for their domestic affairs, their family relations and the exercise of their religion. Thus, in the Manual of the Institute,™ it is said — " Female honor, religious beliefs and forms of worship must be refspected. Interference with family life is to be avoided." It was an alleged dis- 1266 regard of the religious scruples of the natives by the British In India which was the immediate cause of the disastrous Sepoy rebellion of 1857. Some special features of the exercise of Military Government in our wars may here be noticed. POLICE REGULATIONS. Ggn. Scott, In occupying Mexico, made provision In one of his principal orders " for establishing a Mexican civil police to act in conjunction with the army. The organization of a local police force In some districts of the South was also provided for In orders during the late war." Of the regulations of police ordained by commanders in that war the most frequent were the quarantine regulations, established generally at seaports occupied by our forces," pursuant to a direction of the President."" Regulations were also imposed by way of restriction upon local traders, especially those trading by boats on the great rivers connecting States, as the Ohio" and Mississippi ; " as also upon persons carrying on business Injurious to the mili- tary service — such as dealers In liquor" and In military clothing." Other regulations made provision in regard to the passes which should be required for passing the lines," or for traveling through disturbed parts of the country ; " also in regard to passengers embarking upon and landing from vessels, who were required to be furnished with passports, to have their baggage examined and to be deprived of the arms In their possession."" Others regulated 1267 the use of railroads and of telegraph lines." By an order of the Provost Marshal at St. Louis In August, 1861, the wearing of concealed weapons was inhibited to any persons except the military and the regular police. By orders issued by the Department Commander in August, 1862, the population of New Orleans, (with some exceptions,) were required to be disarmed.™ By an order of the Department Commander at the same place, of July, 1863, as- semblages of persons not expressly authorized are forbidden, bar-rooms and places of business are required to be closed at 9 o'clock, p. m., and it is directed that no persons not belonging to the military or police force shall be allowed to be on the streets after that hour. By an order of December, 1863, the City Gas Company of Norfolk, Va., having sealed up Its works, the same were taken possession of by the occupying military authorities and the lighting of the city at night caused to be resumed."* " § 49. And see Prpject, Brussels Conterence, Art. 38. " G. O. 287, Hdqrs. of Army, 1847. " See G. O. 129, Sixteenth Army Corps, 1863 ; Do. 43, Dept. of No. Ca., 1865. » See G. O. 15, Dept. of No. Ca., 1866 ; Do. 4, 24, Dept. of So. Ca., 1866 ; Med. Dctr. O., Id., April 1, 1866 ; G. O. 11, Dept. of the Carolinas, 1866 ; Do. 12, 15, Dept. of Ala., 1866; Do. 20, Dept. of Fla., 1866; Do. 21, Dept. of La., 1866; Do. 10, 12, 13, Dept. of Texas, 1866. " G. O. 15 of 1866. M G. O. 26, Dept. of the Ohio, 1861. •' See the G. O., Dept. of the Gulf, for 1864 especially. «» G. O. 31, Dept. of So. Ca., 1865. " G. O. 162, Sixteenth Army Corps, 1863. " G. O. 56, Army of the Potomac, 1861 ; Do. 27, Id., 1862 ; Do. 10, Dept. of the South, 1863. » G. O. 22, Dept. of N. Mex., 1864. M G. O. 35, Dept. of the Pacific, 1864 ; Do. 5, 18, Id., 1865. " G. O. 8, 36, 57, Dept. of No. Ca., 1865. "It is stated hy Parton, ("Gen. Butler in New Orleans," p. 463,) that about 6,000 arms were surrendered under these orders. "VIII Reb. Kec. 28. MILITABY LAW AND PRECEDENTS. 813 KEGTILATIOM OF IiABOR. The matter of the regulating of labor was mostly restricted to cases of freedmen or colored persons brought by the chances of war within military protection and care. The President, in free- ing, by his Proclamation of January 1, 1863, all persons held as slaves in the insurrectionary States and districts, rdeommended to them " that, in all cases when allowed, they labor faithfully for reasonable wages," and further authorized that they be " received into the armed service of the United States." Under this proclamation and repeated legislation of Congress, a targe number of such persons were employed in connection witli our armies, and some one hundred and forty regiments of colored troops were organized. It was, how- ever, mainly under the Act of March 3, 1865, " to establish a Bureau for the relief of Freedmen and Refugees," by which abandoned and confiscated lands in the insurrectionary States were set apart and assigned " for the use of loyal refugees and freedmen," (and under the appropriations for the support of this Bureau, continued till 1869,) that the matter of the regulation of labor became an Incident of military government. At localities on the coasts of South 1268 Carolina, Georgia and Florida, especially, was such regulation directed by military commanders, and frequent General Orders were issued by them relating to the government, subsistence and employment of the classes of persons indicated in the statute.™ BEQUIREMENTS AS TO OATHS OF ALLEGIANCE. Upon the occupa- tion of hostile country during the late war, the taking and subscribing of an oath of allegiance to the United States were not unfrequently required of inhab- itants regarded as disaffected and likely to be hostile, as also of citizens before they were permitted to act or resume their functions as civil officers, attor- neys, jurors, &c., or to trade, vote, &c." One of the most pointed of the orders of this description was G. O. 4, Division of the James, 1865, issued by Gen. Halleck during the military government of Richmond In April of that year." ™ See, for example. Gen. Sherman's Order, Hilton Head, Feb. 6, 1862 ; G. O. 6, Dept. of the Cumberland, 1863 ; Do. 112, Middle Dept., 1864 ; Do. 23, Dept. of the Gulf, 1864; Do. 23, Id., 1865 ; Do. 34, Dept. of the Miss., 1865; G. O., Dept. of No. Ca., 1865, passim. See also G. O. 9, Dist. of Fla., 1865, in which Gen. Newton establishes a "system of labor " throughout Florida to prevent vagrancy. As an instance of an- other Sort of labor regulation — G. O. 65, Dept. of the Mo., 1864, prohibits combiuatlutis of workmen designed to defeat the manufacture of things needful for military use. 1 See G. O. 41, 42, Dept. of the Gulf, 1862 ; Do. 29, 41, Dept. of the Mo., 1862 ; Do. 3, Dept. of the Miss., 1862 ; Do. 53, 59, Middle Dept., 1863 ; Do. 49, Dept. of Va. & No. Ca., 1863 ; Do. 65, Sixteenth Army Corps, 1863 ; Do. 4, Div. of the James, 1865 ; Do. 38, Dept. of Ala., 1865. In the G. O. cited of the 16th Corps, all citizens are required to register, enroll, and take the oath, under penalty of being sent south. By an order of the commanding officer at Nashville, of April, 1863, all whites over eighteen are re- quired to subscribe the " oath of allegiance or non-combatants' parole, or to go south." By an order of April, 1862, Andrew Johnson, Provisional Governor of Tennessee, de- clares vacant the offices of the mayor of Nashville and other officials who refused to take the oath of allegiance, and appoints persons to fill them till the next election. In the G. O. cited of the Dept. of Va. & No. Ca., the official acts of civil officers not taking the oath are declared void. In G. O. 49, Id., transfers of property by persons who have not returned to their allegiance are forbidden and declared to be without legal validity. The administering of the oath was generally devolved upon the Provost Marshal, whose duty it wqs also made to arrest persons who violated their oath. Deserters from the enemy were also required to take the oath before they could be released from arrest or employed. See G. O. 4, Dept. of the Ohio, 1864. " This Order is in full as follows : " I. Clerks of courts of records in Eichmond and Petersburg will be permitted to re- sume their functions on taking the oath of allegiance. " II. All attorneys, counsellors, advocates and proctors, and others licensed to prac- tice a particular profession, trade or business; the presidents, directors and officers of all corporations, and all persons availing themselves of the benefit of General Order 814 MILITAKY LAW ASTD PRECEDENTS. 1269 BEOTTLATION OF ELECTIONS. Beside requiring voters to take an oath of allegiance," the Commander administering military government may, In proper cases, order elections to be held," and where disorder, fraud, or intimidation Is apprehended at any election, may so regulate the conduct of the same as to secure a fair ballot andt^irevent breaches of the peace." The subject, however, of the ordering and regulating of elections by military authority Is one which, in our history, has been most fully illustrated by the special military government instituted under the Reconstruction Laws — ^to be adverted to here- after. 1270 DIRECTION OP EDUCATION OB RELIGIOUS WORSHIP. This is an authority which, though rarely exercised, is still, in a proper case, within the powers of Military Government. An instance of an assuming of con- trol of the subject of education is presented by an Order of 1864, in which the Department Commander appoints an army chaplain to be superintendent of public education, both for white and black children, and makes attendance at school compulsory, &c." A marked instance of direction as to religious ministra- tion is found in the General Order of the Department of Alabama, in which the Episcopal Bishop Wllmer, who had instructed the clergy of his diocese to omit from the church service the usual prayer for the President, was, with the clergy who had complied, suspended and forbidden to preach or perform divine service, and their churches were closed, till they should resume the prayer and take the amnesty oath prescribed in the President's proclamation of December 8, 1863." In New Orleans, in 1862, several Episcopal clergymen were arrested and sent to New York, for confinement in Fort Lafayette, for refusing to read the same No. 2, in regard to trade, will be required to take the oath of allegiance to the United States. Any person in the aljove mentioned cities, who, without taking the oath, shslll, after the first of May next, attempt to practice any licensed profession, or engage in any licensed trade or business, or shall exercise the functions of a president, director, or ofS- cer of any corporation, will be arrested. The foregoing provisions will be enforced in other parts of the State as early as practicable. III. All persons making claims for restoration of private property, before a Provost Marshal, or any other military ofScer, court, or commission, will be required to take the oath of allegiance to the United States, and until the claimant takes the prescribed oath, his claim will neither be granted nor considered. IV. All officers of customs in this Military Division are requested to give no clearances or permits to ship or land goods or other articles of trade, to any person or for the benefit of any person who has not taken the oath of allegiance to the United States. Y. No marriage license will be issued until the parties desiring to be married take the oath of allegiance to the United States, and no clergyman, magistrate, or other per- son authorized by State laws to perform the marriage ceremony, will officiate in such capacity until he himself and the parties contracting matrimony have taken the pre- scribed oath of allegiance. VI. Any person acting in violation of these orders will be arrested, and a full account of the case reported to these Head Quarters." " See under last Subject. " Note, for example, the proclamation of Gen. Banks, Comdg. Dept. of the Gulf, of Jany. 11, 1864. "G. O. 53, 59, Middle Dept, 1863; Do. 24, Dept. of the Gulf, 1864; Do. 141, Dept. of No. Ca., 1865 ; Do. 51, Dept. of Ky., 1865 ; Do. 21, Dept. of Fla., 1865. "Q. O. 150, Dept. of Va. & No. Ca., 1864. Similar, action, according to Parton, (" Gen. Butler in New Orleans," p. 435,) was taken by the same commander in N. Orleans in 1862, when, it is said, — "the school system was reorganized on the model of that of Boston. A bureau of education and u superintendent of public schools were appointed." " 6. 6. 38, Dept. of Ala., 1863. Later, in the remarkable G. O. 40, Dlv. of the Tenn., 1865, (published in G. O. 2, Dept. of Ala., 1866,) Gen. Thomas removed the restriction on the ground that the action of Wllmer had been practically repudiated by the people of Alabama, as manifested by their increasing loyalty to the Union. MnJTABY LAW AND PRECEDENTS. 815 prayer," and on another occasion the churches of the city were ordered not to observe a particular day which had been designated by President Davis as a fast." Under the legislation of Congress of July 16, 1866, and the Appropriation Acts providing for the support of the " Bureau of Freedmen," &c., the " educatiim of the freed people " became a feature of the Military Government exercised in the South during the latter part of the war and the Reconstruction period. 1271 CONTROL OF PUBLICATIONS. The Commander, In the exercise of military government, may suppress or suspend newspapers, books, or other publications by which hostility is excited against his Government or Its measures In the prosecution of the war, or Information or encouragement is conveyed to the enemy. In New Orleans, in 1862, the Department Commander, after interdicting a certain class of publications in his proclamation of May l," temporarily suspended several newspapers," one, the "True Delta," being placed in charge of two officers of the army detailed for the purpose, who pro- ceeded to edit it " in the interest of the United States." " By an order published in Memphis in 1863, Gen. Hurlbut suppressed a Chicago newspaper within his command for publishing a series of calumnious articles against the President and thus exciting disloyalty to the Government.'" S'o, in an Order of the Depart- ment of Virginia of 1865, Gen. Terry ordered the Provost Marshal of his com- mand to seize the presses, types, &c., belonging to the proprietors of one of the Bichmond hewspapers, and prevent its future publication, because it had styled a part of the President's amnesty proclamation as " heathenish," and a certain Act of Congress as " mean, brutal and cowardly, revoltingly absurd and atrociously unjust." " In a later G. O. of the same Department the same com- mander ordered the office of another Richmond newspaper to be closed, and the writer of an article therein, which had disparaged the memory of Presi- dent Lincoln and reflected offensively upon President Johnson and his 1272 administration, to be placed in arrest." In Orders of the Department of the Ohio of 1863 the circulation is interdicted of a New York and a ™ On being released and returned to New Orleans, these clergymen were required by Gen. Banks to take an oath of allegiance as a condition to their landing ; and, on their refusal to do so, they were sent back to New Tork. Parton, " Gen. Butler In N. Orleans," p. 484. " G. O. 27, Dept. of the Gulf, 1862. ™ See extracts from this Proclamation under next Title. "To wit, the Crescent, Bee, Delta, Picayune, Dally Advocate, and Bstafette du Sud, — by G. O. 17, 235, 513, and S. O. 37, 39, 42, 235, Dept. of the Gulf, 1862. And see case of Henri Dubos, arrested and imprisoned by Gen. Butler for publishing alleged seditious articles in a further newspaper of New Orleans called " The Compilateur." Dubos V. United States, Report of Counsel of U. S. on Proceedings of BYench-Amerlcan Claims Commission^ p. 109, and Appendix " H," containing dissenting opinion of Mr. Commissioner Aldis. " Parton, " Gen. Butler in New Orleans," p. 283, 434, 435. " G- O. 4, Sixteenth Army Corps, 1863. " G. O. 87, Dept. of Va., 1865. In the subsequent G. 0. 92 of the same Department and year, it was declared that, as the editors and proprietors had expressed regret at the publication, and given assurance that there would be no further cause of offence, (and in, view of the recommendation of Governor Pierpont, &c.,) the former order had been rescinded. '"G. O. 119, Dept. of Va., 1865. In Do. 123, Id., it was announced that, upon a proper acknowledgment of wrong and assurance of reform, the paper bad been per- mitted to resume. In G. O. 27, Dept. of Pacific, 1865, Gen. McDowell, in ordering the arrest of per- sons who should " exult over the assassination of President Lincoln," adds — " Any paper so offending, or expressing any sympathy in any way whatever with the act, will be at ouco sdzed and suppressed," 816 MILITARY LAW AND PRECEDENTS. Chicago newspaper as being disloyal and incendiary," and the publication of " disloyal books " is prohibited," — under pain of the arrest and punishment of the offenders.** In an Order of the Department of the East of 1865, Gen. Dix, pursuant to instructions from the War Department, gives notice to editors and proprietors of all newspapers in his Department that " the system of correspondence with the rebel States by advertising under the head of ' Personals ' or otherwise In the columns of such papers must immediately cease." And it Is added that, if continued, the parties concerned will be arrested and brought to trial by mili- tary commission for a violation of the laws of war." 1273 In sundry instances — to be referred to under the head of the Militaey Commission — editors and publishers, or correspondents, of newspapers have been brought to trial and sentenced to imprisonment, expulsion from the military department, &c., on account of published articles giving information to the enemy, supporting the hostile cause, discouraging volunteer enlistments, counselling resistance to the draft, &c." B.ESTKAINT AND PUNISHMENT. While the peaceable citizens of a country under Military Government are in general exempt from military arrest or restraint of the person, the governing commander" is authorized to apprehend and restrain all persons guilty of violations of the laws of war, hostile demonstrations, or public disorders, and in extreme cases to inflict upon them summary punishment. Thus, in the Department of the Gulf in 1862, persons of both sexes charged with disloyal or Illegal acts were In several instances sent to Ship Island for confinement : " in another instance four per- sons were hung without trial for aggravated plundering and robbery." In the same Department in 1863, a citizen, for violations of the trade regulations with a view to aid the enemy, was condemned by the department commander, with- out a trial, to a year's hard labor and a fine of $25,000.** And in repeated cases, — for hostile language or conduct, or for refusing to register and take ■<>G. O. 84, Dept. of the Ohio, 1863. [Revoked, pursuant to a. direction of the President, by Do. 91, Id.] "G. O. 87, Dept. of the Ohio, 1863. With these Instances of action taken by depart- ment commanders, note the case of the suppression of the Clrcleville, (Ohio,) Watchman, and arrest of its editor and publisher, under an order from the War Department of June, 1862, described in Kees v. Tod, Whiting, War Powers, 216. " See other instances noted in II Reb. Rec, 69 ; III Id., 31 ; VI Id., 61 ; V Id., 53 ; VII Id., 11, 14. Upon the occupation by the Prussians of Frankfort, in July, 1866, several of the newspapers of the City, " which had always been distinguished for strong aoti-Prussian feeling, were suppressed." Hozier, vol. 2, p. 59. "»G. O. 10, Dept. of the East, 1865. And see reference to the subject of this Order under the " Forty-Sixth Article," ante. Part I, ch. XXV. It may here incidentally be noted that in repeated cases in the northern States during the war, grand Juries both of the V. S. and the State courts presented news- papers as aiders and abettors of treason ; and some of these, with other publications, were excluded by the Postmaster General from the U. S. mails. Later, the offices of two newspapers of New York were temporarily closed by the Government because of their publishing what purported to be a genuine proclamation of the President of May 17, 1864, but which was in fact wholly spurious, and contained declarations calculated to convey encouragement to the enemy. See II Reb. Rec, 67, 531; III Id., 1, 18, 26, 35; IV Id., 33 ; XI Id., 472. »» See G. O. 11, Dept. of the Miss., 1862 ; Do. 29, Army of the Potomac, 1803 ; Do. 14, Northern Dept., 1865 ; G. C. M. O. 1, Dept. of No. Ca., 1866. " That a subordinate cannot, of his own will, make such arrests, see Cochran v. Tucker, 3 Cold., 186. " S. O. 150, 151, 152, 179, 180, 288, Dept. of the Gulf, 18G2 ; C=so of Henri Dubos, cited on page 815, note 81, ante'; V Reb. Rec., 34, 38, M S. O. 98, 103, Dept. of the Gulf, 1862. " G. O. 36, Id., 1863. MILITARY LAW AND PRECEDENTS. 817 the oath of allegiance, &c.,— .persons have been summarily put outside the lines of the army or banished from the country .'" 1274 In the great majority of cases, however, the inhabitants of States, or districts under military government during the late war, who oftended against the laws of war, or were guilty of crimes or disorders, were brought to trial before military commissions — as hereafter to be more particularly Indicated. V. THE STATUS OF MARTIAL LAW AND THE LAWS OF WAR APPLICABLE THERETO. MARTIAIi LAW DEFINED. Martial law, as the term is used in this treatise, is military rule exercised by the United States, (or a State,) over its own citizens, (not being enemies,) in an emergency justifying it. In the early Chapters the distinction has been referred to between this law and Military Law proper, the code of the soldier, with which it was formerly confused."' In the present Part it has already been distinguished from Military Government, the dominion exercised in war, (foreign or civil,) over the territory and in- habitants of an enemy's country upon its conquest and occupation. The term "martial law," has indeed not unfrequently been employed indifEerently to describe any form of military control whether of our own people or of enemies. But this use, while colloquially admissible, is regarded by the author as un- satisfactory and confusing as a legal designation. OCCASION AND FIELD OF MARTIAL LAW. It has been declared by the Supreme Court in Ex parte Milligan " that " martial law " is " confined to the locality of actual war," and also that it " can never exist when the 1275 courts are open and in the proper and unobstructed exercise of their jurisdiction." But this ruling was made by a bare majority — five — of the court, at a time of great political excitement, and the opinion of the four other members, as delivered by the Chief Justice, was to the effect that martial law is not necessarily limited to time of war, but may be exercised at other periods of " public danger," "" and that the fact that the civil courts are open Is not controlling against such exercise, since they " might be open and un- disturbed in the execution of their functions and yet wholly incompetent to avert threatened danger or to punish with adequate promptitude and cer- tainty the guilty." It is the opinion of the author that the view of the minority ■^G. O. 49, 65, Sixteenth Army Corps, 1863, (and see Do. 101, Id;) Do. 73, 145, Dept. of the Mo., 1864 ; Do. 8, Dept. ol No. Ca., 1865 ; also cases in VIII Reb. Rec, 27, 37, 38. In G. O. 38, Dept. of the Ohio, 1863, it is ordered generally that T)eraons in " the habit of declaring sympathies for the enemy " will be at once arrested with a view to trial, " or sent beyond our lines into the lines of their friends." " The apparent confounding of these designations by Hale and Blackstone, as indi- cated in Chapter V, led to a confusing of the same by subsequent writers. This con- fusion is still occasionally encountered, though the later authorities in general clearly define and separate the two terms. See Forsyth, Const. Law., 207-214 ; 2 McArthur, 33 ; Samuel, 185; Hough, (P.) 514; Griffiths, 20; Pipon & Col., 10; Prendergast, 8; Clode, M. L., 4, 178 ; Maltby, 2-4 ; O'Brien, 26-27 ; De Hart, 17 ; 3 Greenl. Ev. § 468 ; 1 Kent, Com., 376 ; Halleck, 373 ; Boyd's Wheaton, 346 d — 346 e ; Luther v. Borden, 7 Howard, 59 ; Tyler v. Pomeroy, 8 Allen, 480 ; State v. Rankin, 4 Cold., 145 ; Grlffln v. Wilcox, 21 Ind., 377 ; In re Kemp, 16 Wis., 368 ; 1 Bishop, C, L., 44-46, 50-52, 55 ; Birkhimer, 1 ; 8 Oplns, At. Gen., 365-370. The names by which our military courts are designated — " court martial " — has probably had not a little to do with perpetuating the confusion referred to. "4 Wallace, 127. •"See Hallam, Const. Hist. Engi, vol. 1, p. 240, cited post; also 9 Am. Law Reg., 498. 440593 0-42-52 818 MILITARY LAW AND PKECEDBNTS. of the court Is the sounder and more reasonable one," and that the dictum of the majority was Influenced by a confusing of martial law proper with that military government which exists only at a time and on the theatre of war, and which was clearly distinguished from martial law by the Chief Justice, In the dissenting opinion — the first complete judicial definition of the subject.'" While therefore the emergency under which martial law is lawfully exercised may be war; while it Is in fact during war, and because of the exigencies inci- dent to war, that such law has most frequently been resorted to ; it is not-^in the judgment of the writer — ^war alone that may call it into existence. It may also, it is believed, legally be inaugurated at a time of " rebellion or invasion," when, as provided in the Constitution,* " the public safety may require " the suspension of the writ of habeas corpus; or at a time of the " Insurrec- 1276 tion " or " Invasion " of which Congress Is empowered by the same Instrument to provide for the suppressing or repelling ; ' or at a juncture of impending hostilities' or internal riot or disorder, when the laws of the United States cannot otherwise be duly enforced. At such times, whether It be essential under the Constitution that Congress shall specially authorize it, or sufficient that the President, as the official charged to faithfully execute the laws and command the armies,* formally proclaim it, — it may. It is considered, be initiated, in any part of the United States in which the emergency may occur, with the same legality as at a time and on the field of actual war.' ASSIMILATED TO THE STATE OF SIEGE. As thus exercisable, martial law, in this country, resembles, and has been compared to," the state of siege of the continental nations of Europe — a condition of domestic military rule Imposed in besieged towns, as also in cities or districts during foreign or civil "» Wells, In his work on the Jurisdiction of Courts, p. 575, in expressing his concur- rence with the views of the minority of the Judges in Ex parte MiUlgan, observes of the .conclusion of the court as adopted by the majority — " This case can never become a lasting precedent." And see 1 Bishop, C. L. i 52, note, where, referring to the ruling In question, the author says — "A mere dictum from the bench carries no weight beyond that of its own inherent reasons." See also Id. § 64, note. 1" See his opinion, as cited ante, p. 799, under the head of " Military Government Defined." A similar distinction Is also taken by Atty. Gen. Cushlng, (8 Opins., 368, 369,) between martial law as exercised In an enemy's country, (the " military govern- ment " of Chief Justice Chase, ) and martial law as a " domestic fact " exercised at home. And compare Halleck, 372—3. "Art. I, sec. 9 § 2. 'Art. I, sec. 8 % 15. Or on the occasion of the insurrection or rebellion which the Presi- dent, by Sees. 5297 and 5298, Eev. Sts., Is empowered to employ the land or naval forces to suppress. •The martial law. may be declared In places threatened with Invasion or subject to Incursions by the enemy, see G. O. 2, Dept. of the Miss., 1862 ; Do. 54, Dept. of Kansas, 1864. *Art. II, sees. 2, 3. » To quote again from Chief Justice Chase's definition,— it, (martial law,) Is " to be exercised In time of Invasion or insurrection within the limits of the United States, or, during rebellion, within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise, • • * and Is called into action by Congress, or temporarily, when the action of Congress cannot be tovited and in the case of justifying or excusing peril, by the President, In times of Insurrection oi- Invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights." 4 Wallace, 141. As to the power of the President, by virtue of his being Commander-in-chief, to exercise martial law, see further. Whiting, War Powers, 163, et seq.; Kces o. Tod, Id., 216 ; McCormick v. Humphrey, 27 Ind., 144. The view of Bishop, (1 C. L. 8 60,) that the President posseses this power as Executive, martial law being one of the " laws " which he is required faithfully to execute — is deemed more curious than sound. « 8 Opius. At. Gen., 371, 374 ; Halleck, 374. MILITARY LAW AND PRECEDENTS. 819 war, or at periods of grave public disorder, especially those succeeding upon a state of war.' 1277 AS EXEKCISED UNDER BRITISH RULE. Martial law, as sucft, has not been proclaimed or exercised In England since the Revolution of 1688. The Riot Act, under which the military, acting In aid of the civil authority, may attack mobs not duly dispersing, seems to have proved a suffi- cient provision for the suppression of such disorders as have occurred. That martial law may be resorted to in the event of actual rebellion seems to be conceded,' though it would appear that It would have to be expressly authorized by Act of Parliament, or at least sanctioned by a subsequent Act of Indemnity. It has been repeatedly resorted to in Ireland, as also In the colonies^notably in Lower Canada, Jamaica, Ceylon, Demerara and at the Cape of Good Hope.' During its exercise In Jamaica in 1867, under the proclamation of Governor Eyre, 354 persons were put to death under sentence of court- martial and 85 persons without trial ; 600 persons, some of whon. were women, were flogged and imprisoned; and 1,000 dwellings were destroyed "by burn- ing — all by way of punishment of alleged rebels and within a period of one month. The English authorities have differed as to the proper nature of martial law and the extent of the military control which it justifies. Thus, some have considered that it simply permits the application to the citizen of the code of the soldier; others that it places in the hands of the military commander a discretionary power to be exerted according as, and so far as, the necessities of the exigency may require. The latter view is the one which accords the more nearly with our 1278 own law and practice." But as we have scarcely had occasion to employ martial law with regard to a subject and Inferior race, its exercise in this country has had little in common with its inode of application in the British colonies. ITS FORMAL INITIATION. Unlike Military Government, which exists as a consequence of occupation and possession of enemy's country, martial law. Involving as it does a material change In the political condition of peaceful citizens and a considerable restriction perhaps of their rights or privileges, is properly and customarily (though this is not essential where the necessity is Imminent) inaugurated by a formal proclamation of the President as Com- ' As in Paris and other parts of France and in Algiers, after the Franco-Prussian war and the suppression of the Commune, in 1871. • " There may, in times of pressing danger, when the conservation of all demands the ^crlflce of the legal rights of the few — there may be circumstances that not only Jus- tify but compel the temporary abandonment of constitutional forms. It has been usual for all governments, during an actual rebellion, to proclaim martial law, or the suspension of civil Jurisdiction." Hallam, Const. Hist. Bng., vol. 1, p. 240. " It cannot be too stronsly urged that such a thing as martial law Is unknown to English Jurisprudence. The law of England presupposes a state of peace, and disturbers of that peace can be found guilty of treason, felony, or misdemeanor, according to circumstances. On the other hand, no Judicial decisions can alter the fact that the application of military government under the law of necessity, commonly called martial law, must always exist, although It is difficult to exactly define It." Pratt, 214. •Flnlason, passim; Clode, 2 M. F., 168-174, 481-511. "The two views Indicated are best represented — the first by the charge of Cocltbnrn, C. J., to the grand jury at the Central Criminal Court, In the case of Queen «. Nelson and Brand, (published-, London, 1867 ;) the second by the opinions of FInlason as expressed in his various works. See his " Treatise on Martial Law," " Commentaries on Martial Law," " History of the Jamaica Case," " Report of the Case of Queen v. Eyre," " Review of the Authorities as to the repression of Riot and Rebellion." 820 MILITAKY LAW AND PRECEDENTS. mander-in-chief,"^ or declaration of the commanding general. A suspension of the writ of habeas corpus is indeed, per se, substantially a form? of such declara- tion. The public notification ordinarily designates the place or district witliin which military authority is to be operative ; setting forth also in some cases the reason or occasion for the action taken, how far and in what manner it shall affect the courts or civil administration, or the business or habits of the com- munity, and what directions shall be observed during the continuance of the new status, the duration of which is also sometimes specified. The form of such declarations will be Illustrated by the instances presently to be cited. In announcing and initiating martial law a military commander is to be presumed duly to represent his superior, the President." As held by the Supreme Court in the case of Rhode Island at the time of the Dorr rebellion of 1842, the government of a State may, when the 1279 public safety demands it, proclaim martial law within Its own limits, without infringing upon the TJ. S. Constitution by exercising war powers delegated to Congress.^' In a recent instance, in July, 1892, the Governor of Idaho instituted nrartial law within Shoshone county of that State, on the occasion of the disturbances among the miners known as the " Coeur d'Alene riots." ITS LIMITATIONS. The employment of martial law has been likened to the exercise of the right of self-defence by an individual." Its occasion and justification thus is necessity." But though in general without, other limit than the discretion of the commander upon whom its execution Is devolved. It is not an absolute power, but one to be exercised with such stringency only as circumstances may require. The often-quoted remark that martial law is simply " tlfe will of the general who commands the army " " is a description much less apposite in practice to martial law proper, or domestic martial law, than to that military government of enemies " heretofore considered, and with reference to which in fact the observation was originally employed by Welling- ton. Martial law is indeed resorted to as much for the protection of the lives and property of peaceable Individuals as for the repression of hostile or violent elements." It may become requisite that it supersede for the time the existing civil institutions, but, in general, except in so far as relates to persons violating military orders or regulations, or otherwise interfering with the exercise of military authority, martial law does not in effect suspend the local law 1280 or jurisdiction " or materially restrict the liberty of the citizen : It may ^ When initiated in a State, it may be proclaimed by the Governor or declared by an Act of the Legislature, according as may be deemed legal or expedient under the Con- stitution and laws. In the case of the Dorr rebellion In Rhode Island, the Oe&eral Assembly, by an Act of June 25, 1842, placed the State under martial law, and the Governor thereupon issued a proclamation announcing the fact. Luther v. Borden, 7 Howard, 8. ^ Clark V. Dick, 1 Dillon, 8 ; Halleck, 380 ; Digest, .489. M Luther V. Borden, 7 Howard, 1. It was held in 1857 by Attorney General Cusbing, (8 Opins., 365,) that a Governor of a Territory, (in that case the Governor of Washing- ton, then a Territory,) did not possess this power. In 1885, however, the Governor of the same Territory declared martial law therein, on the occasion of an outbreak against the Chinese residents. " Hallam, Const. Hist., 240. And see Luther u. Borden, 7 Howard, 46 ; 9 Am. Law Reg., 498. " 1 Kent, Com., 341, note ; Hough, 535 ; In re Bgan, 5 Blatch., 319. »« Clode, M. L., 182, 184 ; Finlason, Corns, on Mar. Law, 141 ; 8 Opins. At. Gen., 367. " See U. S. ». Diekelman, 92 U. S., 526. "G. Field O. 2, Dept, of the Ohio, 1862. G. O. 2, Div. of the Mo., 1865, p. 10; Do. 15, Div. of the Gulf, 1866. " G. O. 34, Dept. of the Mo., 1861 ; Do. 39, Id., 1862 ; Do. 54, Dept. of Ark., 1864. And see Com. v. Palmer, 2 Bush, 570. MILITARY LAW AND PRECEDENTS. 821 call upon him to perform special service or labor for the public defence, but otherwise usually leaves him to his ordinary avocations.'" It is a principle of the exercise of martial law that even when required to be executed with exceptional stringency and for a protracted period, It shall not be permitted to serve as a pretext for license or disorder on the part of the military; and acts of undue violence and oppression committed in its name will by the laws of war be visited with extreme punishment." It is a further principle that, while martial law is not to be Inaugurated pre- cipitately or inconsiderately, so it is to be continued only so long as the public exigency on account of which it was declared shall prevail.'" It is not indeed essential to the discontinuance of such state that the original declaration of the same be formally revoked: when the emergency has ceased, or within a reason- able interval thereafter, the status may be deemed to have lapsed, and cannot lawfully be further continued or enforced. INSTANCES ILLXrSTBATING THE OPERATION OF MABTIAL LAW. The nature and operation in practice of martial law will be illustrated by a reference to the principal instances of its employment in our history. Passing over such early cases as those of the proclamation of martial law in Boston by General Gage in June, 1775,'' and in Virginia in November of 1281 that year by Governor Dunmore," as well as the occasion of its being substantially exercised by Gen. "Wilkinson, in Louisiana, at the period of the Burr conspiracy. In November, 1806, — an instance more material to be noticed in referring presently to the subject of the suspension of the writ of habeas corpus, — we come to the action by Gen. Jackson at New Orleans in 1814. As declared hy Gen. Jackson at New Orleans. This action was initiated by a proclamation of December 16 of that year, as follows : — " Major General Andrew Jackson, commanding the seventh United States military district, declares the city and environs of New Orleans under strict martial law, and orders that in future the following rules be rigidly enforced, viz : Every indi- vidual entering the city will report to the adjutant general's office, and, on failure, to be arrested and held for examination. No person shall be permitted to leave the city without a permission in writing, signed by the General or one of his staft. No vessels, boats, or other craft will be permitted to leave New Orleans or Bayou St. John without a passport in writing from the General or one of his stafE, or the commander of the naval forces of the United States on this station. The street lamps shall be extinguished at the hour of nine at night, after which time persons of every description found in the streets, or not at their respective homes, without permission in writing as aforesaid, and not having the countersign, shall be apprehended as spies and held for examination." so "Martial law is elastic In its nature, and easily adapted to varying circumstances. It may operate to tlie total suspension or overtlirow of the civil authority ; or its touch may be light, scarcely felt or not felt at all by the mass of the people, while the courts go on in their ordinary course, and the business of the community flows In its accus- tomed channels." 1 Bishop, C. L. § 52. »Despan v. Olney, 1 Curtis, 306; Luther v. Borden, 7 Howard, 1; Finlnson, Coms. on Mar. Law, 61 ; Hough, 535 ; Lleber. Inst. § 4 ; Digest, 488. K Queen v Nelson & Brand, and Queen v. Eyre, Charges of Coclibum, C. J. and Black- burn J Finlason, passim; Pratt, 216: Hough, 535; 1 Bishop, C. L. § 55 ; In re Bgan, 5 Biatehford, 319 ; In the matter of Martin, 45 Barb., 145 ; McLaughlin v. Green ; 50 Miss 453- DIGEST, 489-90. "Nations are prone to introduce too soon, to extend too far, to retain too long, so perilous a remedy." Hallam Const. Hist. Eng., 240. « Bancroft, Hist. V. S., vol. 7, p. 392. «« Id., vol. 8, p. 223. 822 MILITARY LAW AND PRECEDENTS, The British forces under Maj. Gen. Pakenham were then threatening the city, and, as it Is narrated'" — "All able-bodied men, of whatever race, color, rank or condition, were compelled to serve either as soldiers or sailors. The old men and the infirm were formed into a veteran guard for the police of the town and the occupation of its forts." The martial law status thus Instituted was maintained till March 13, (the date on which news was received of the ratification of the treaty of peace,) although the British finally retreated to their fleet on January 19th. Mean- time, (as is described In the history of the period,) the military authority of the General was exercised in so arbitrary a manner as to bring about a serious collision with the U. S. Judiciary. A citizen and member of the 1282 Legislature — Louis Louaillier — having published in a newspaper a remon- strance against an oppressive order for the temporary banishment from the city of the French population, was arrested and confined by General Jackson; and when Judge Hall, of the U. S. District Court, granted a writ of habeas corpus, directing the General to bring the prisoner before the court to be dealt with according to law, Jackson caused the Judge himself to be arrested, ("for aiding and abetting and exciting mutiny in my camp,") and confined at the barracks for nearly a week, when he was conducted beyond the limits of the city. Returning after the announcement of peace, the Judge cited the General before the court, adjudged him to have been guilty of a gross contempt of court, and imposed upon him a fine of one thousand dollars." 1283 As declared by Gen. Scott In Mexico. The next instance to be noted is that of the declaration of martial law in Mexico by Major General Scott, in his General Orders of 1847," in which also, (as will be hereafter more particularly indicated,) military commissions were first instituted for the trial of offenders. The form of the declaration here is : — " Martial law Is hereby declared as a supplemental code in and about all cities, towns, camps, posts, " Parton, Life of Andrew Jackson, vol. 2, p. 61. » Debates in 28tb Congress in 1842-1843, vols. 12 and 13 of Cong. Globe ; Hlsts. of Louisiana by Martin and Ouyarri ; Lite of Jackson by Eaton ; Do. by Kendall ; Do. by Parton. The comments of tbe Supreme Court of Louisiana In tbe case of Johnson v. Duncan, 3 Martin, 530, with reference to the martial law declared by Gen. Jackson, may here be referred to as Indicating the temper of the Judiciary at this time. In holding that the proclamation could not legally have the effect of suspending their functions, the court observe : — " The Idea that American citizens may be left at the mercy of an individual who may in certain cases, the necessity- of which is to b^ judged of by himself, assume a supreme, overbearing, unbounded power, is not only repugnant to the principles of any free government, but subversive of the very foundations of our own. • • • The proclamation of martial law cannot have had any other effect than that of placing under military authority all the citizens subject to militia service. It is In that sense alone that the vague expression of martial law ought to be understood among us. To give it any larger extent would be trampling upon the constitution and laws of our country." And Lamb's Case, Car. Law. Eep., 330, Is cited, in which Judge Bay illustrates the horror with which martial law is commonly regarded by the Judiciary, by declaring — " If by martial law Is to be understood that dreadful law, the law of arms, * • * I have no hesitation in saying that such a monster could not exist in this land of liberty and freedom." On the other hand, see the views of Gen. Jackson, as expressed in his extended G. O. of March, 1815, In the case of Louaillier, tried by court-martial. Gen. Jackson's fine was refunded to him, with interest, by Act of Congress of Feb. 16, 1844, nearly thirty years after its imposition, and only in the year before his death. As to the action of Gen. Jackson In disregarding a writ of habeas corpus issued. In Florida, in 1821, by the V. S. Dist. Judge Fromentin, in the case of Col. Collava, then recently Spanish Governor of Pensacola, who had been arrested and confined by Gen. Jackson's order — see Halleck, 379 ; Parton, Life of Jackson, ch. XLV, p. 614. This Instance is not. in a legal point of view, important. " G. O. 20 & 287, Udgrs. of the Army, 1847. MnjTARY LAW AND PRECEDENTS. 823 hospitals, and other places which may be occupied by any part of the forces of the United States In Mexico, and In and about all columns, escorts, convoys, guards and detachments, of the said forces, while engaged in prosecuting the existing war in and against the said republic and while remaining within the ifame." But, as has already been remarked," this declaration, (except for pur- poses of notice,) was a superfluous and unnecessary proceeding, adding nothing to the military authority or jurisdiction, since the region and people to which it related were already subject to the- military government Incident to the con- quest and occupation of enemy's country. As declared in the late war — Proelamations of the President. It is the period during and immediately succeeding the late civil war that furnishes the most marked illustrations of martial law as specifically proclaimed and de- clared. Thus, early In the wflr, the comprehensive proclamation of the Presi- dent Of Sept. 24, 1862, made " subject to martial law " not only Insurgent enemies in the insurrectionary States but also " their alders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting mlUtla drafts, or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States." " 1284 Further, by proclamation of the President of July 5, 1864, martial law was established in the separate State of Kentucky, (not one of the Con- federate States;) the reasons for such action being set forth In the preamble as follows :—" Whereas many citizens of the State of Kentucky have joined the forces of the insurgents, and such Insurgents have, on several occasions, entered the said State of Kentucky In large force, and, not without aid and comfort furnished by disaffected and disloyal citizens of the United States residing therein, have not only disturbed the public peace, but have overborne the civil authorities and made flagrant civil war, destroying property and life In various parts of that State; And whereas it has been made known to the President of the United States by the officers commanding the national armies, that combinations have been formed In the said State of Kentucky with a purpose of Inciting rebel forces to renew the said operations of civil war within the said State, and thereby to embarrass the United States armies now operating In the said States of Virginia and Georgia, and even to endanger their safety : " — And it is subjoined, in conclusion, as follows : — " The martial law herein proclaimed, and the things in that respect herein ordered, will not be deemed or taken to interfere with the holding of lawful elections, or with the proceedings of the constitutional legislature of Kentucky, or with the administration of justice in the courts of law existing therein between citizens of the United States in suits or proceedings which do not affect the military operations or the constituted authorities of the government of the United States." " *» See " Military Governtoent Defined," ante, p. 799. "This proclamation also suspended the privilege of the writ of habeas corpus. See post. And compare the order of the Secretary of War, " by direction of the President," published in G. O. 104, W. D., of Aug. 13, 1862, by which the writ of fta&eas corpus Is suspended as to persons when about to depart from the United States, or absenting themselves from their county or State, to avoid a draft into the mlUtia. As to the substantial instttution of a modified martiaMaw in the District of Colum- bia during the civil war, compare Digest, 490 ; Birkhimer, Military Government and Martial Law, 383-4. •° The privilege of the writ of habeas corpus was also suspended by this proclamation. See post. As to the declaration sf martial law, it was revoked in the next year, by proclamation of Oct. 12, 1865. In this connection, see G. O. 51, Dept. of Ky., 1865, and Circ. No. 3, Id., as to the classes, of persons affected by martial law In Kentucky, and its operation In suspending the functions of civil courts therein. In connection further with these two proclamations, (the only ones by which martial law was in terms declared by the President,) see other executive proclamations, noted 824 MILITARY LAW AND PRECEDENTS. 1285 Action of military commanders. Of declarations of martial law by military commanders during the late war, (some of which, for reasons already set forth, were quite unnecessary in law, the region to which they applied being under or subject to military government,) the following may be noticed as the principal : (1) By an order of Maj. Gen. Fremont, commanding Western Department, dated August 14, 1861, martial law was " declared and established in the city and county of St. Louis." The order appointed Major J. McKlnstry Provost Marshal, and directed that " all orders and regulations issued by him should be respected and obeyed." That officer thereupon published a proclamation in which it was recited that the power conferred upon him would be exercised only in cases where the civil law was " found to be inadequate to the main- tenance of the public peace and. the public safety." In a subsequent order he prohibited the wearing of concealed weapons, and later the sale or giving away of any description of fire-arms without a special permit. Gen. Fremont was succeeded in command by Maj. Gen. Halleck in November, 1861, and by 6. O. 34, Dept. of the Mo., of Dec. 26, 1861, martial law was formally declared by the latter in the city of St. Louis, and "in and about all railroads in this State," (Missouri,) "in virtue," as it was specified, "of authority conferred by the President of the United States." It was added :— "It is not intended by this declaration to interfere with the jurisdiction of any civil court which is loyal to the Government of the United States, and which vrill aid the military authorities in enforcing order and punishing crimes." A subsequent Gen. Order, No. 39 of 1862, reiterates that the previous declaration is not designed to affect the courts, which are to proceed as before in the exer- cise of their functions, or the operation of the ordinances or laws of the City or State. Later, however, the department commander was obliged to enforce more strictly the martial law status and to suspend in a measure the civil authority." (2) On April 25, 1862, by G. O. 8 of the Department of the South, 1286 (Including South Carolina, Georgia and Florida,) Maj. Gen. David Hunter, Department Commander, declared martial law within the Department. In a subsequent Order, No. 11 of May 9, he repeated this declaration, adding — " Slavery and martial law in a free country are altogether incompatible ; the persons in these three States heretofore held as slaves are therefore declared forever free." (3) Upon the occupation by the Union forces of New Orleans in 1862, Maj. Gen. Butler, commanding Department of the Gulf, by proclamation of May 1st, placed the city and its environs under martial law. In this proclamation it was declared, among other things, that : — "All the rights of property, of what- post, suspending the issue of the writ of haheas corpus; also proclamation of March 17, 1865, making amenable to arrest and trial by court-martial " persons dwelling in con- terminous foreign territory " who furnish arms or munitions of war to hostile Indians, " thus enabling them to war upon the settlements," &c. ; also — as relating to a further incident of the same period — " Executive Order," of April 4, 1865. " G. O. 63, 96, Dept. of the Mo., 1863. (Gen. Schofield.) And see further — as to this same status — Do. 87, Id. ; Do. 6, Western Dept., 1861 ; Do. 2, Dept. of the Miss., 1862. This martial law seems to have been continued in Missouri till March 10, 1865. See G. O. 2, Div. of the Mo., 1805, p. 10-11. " This Order, so far as regards slavery, was in the President's proclamation of May 19, 1862, declared to be unauthorized and void ; the President, as it was expressed, reserving the power to himself to emancipate the slaves, when deemed necessary to exercise it. It was in fact exercised in the proclamation of January 1st following. MILITABY LAW AND PRECEDENTS. 825 ever kind, will be, held Inviolate, subject only to the laws of the United States." All the inhabitants are enjoined to pursue their usual avocations. * * * All disorders, disturbances of the peace, and crimes of an aggravated nature, interfering with the forces or laws of the United States, will be referred to a military court for trial and punishment. Other misdemeanors will be subject to the municipal authority, if it desires to act. Civil causes between party and party will be referred to the ordinary tribunals. * * * No publication of newspapers, pamphlets, or hand-bills, giving accounts of the movements of the soldiers of the United States within this department, reflecting in any way upon the United States, intended in any way to influence the public mind against the United States, will be permitted, and all articles on war news, editorial comments, or correspondence malting comments upon the movements of the armies of the United States, must be submitted to the examination of an officer who will be detailed for that purpose from' these headquarters. * * * All the requirements of martial law will be imposed so long as, in 1287 the judgment of the United States authorities, it may be necessary ; and while it is desired by these authorities to exercise this government mildly, and after the usages of the past, it must not be supposed that it will not be rigorously and firmly administered as the occasion calls for it." Sundry features of this military government, (which continued to March 18, 1866,) have been referred to under the preceding Title. (4) By a proclamation of Maj. Gen. R. C. Shenck, as Commander of the Mid- dle Department, dated Baltimore, June 30, 1863, martial law was declared In Baltimore and the western counties of Maryland, as being required " as a mili- tary necessity " by reason of " the Immediate presence of a rebel army vrlthln the Department and State." " The proclamation further specifies as follows :t- " The General commanding gives assurance that this suspension of the civil government within the limits defined shall not extend beyond the necessities of the occasion. All the courts, tribunals and political functionaries of State, county' and city authority, are to continue in the discharge of their duties as in times of peace ; only in no way interfering with the exercise of the pre- dominant power assumed and asserted by the military authority. All peaceful citizens are required to remain quietly at their homes and in pursuit of their ordinary avocations, except as they may be possibly subject to call for per- sonal service, or other necessary requisitions, for military purposes or uses hereafter. All seditious language or mischievous practices tending to the en- couragement of rebellion are especially prohibited, and will be promptly made the subject of observation and treatment. Traitorous and dangerous persons must expect to be dealt with as the public safety may seem to require. 'To save the country is paramount to all other considerations.' " " "Compare the following extract from the proclamation of May 14, 1861, issued by the same general, as commanding Dept. of Annapolis, upon his occupying Baltimore : — " Private property will not be interfered with by the men under my command, nor allowed to be Interfered with by others, except in so far as it may be used to afford aid and comfort to those In rebellion against the government whether here or elsewhere, all of which property, munitions of war, and that are fitted to aid and support the rebellion, will be seized and held subject to confiscation." M It was held June, 1865 — by the Judge Advocate General that, though this procla- mation had never been in terms revolted, it had, at that date, ceased to be operative, the emergency having sometime ceased to exist. In the case of Mrs. Sarah Hutchins, (G. O.' 115, Middle Dept., 1864,) It is alleged in the specification that the offence oc- curred on November 3, 1864, " In Baltimore, a place under martial law." " To this declaration are appended " Orders under Martial Law," as follows : — " Orders. Until further orders, no arms or ammunition shall be sold by any dealer or other person within the city and' county of Baltimore without a permit from the 826 MHJTAEY LAW AITD PEECEDENTS. 1288 (5) By G. O. 17, Dept of Kansas, 1862, the Department Commander declared martial law throughout the State of Kansas, with a view to the suppression therein of " jayhawking." In G. O. 54 of the same Department, of 1864, a further proclamation was made of martial law within the State, In anticipation of the Invasion of the same by the army under Gen. Price. The Order specifies that, as the status thus established is Intended to continue only while danger of invasion is apprehended, the functions of the civil authorities will not be disturbed nor the proceedings or processes of the courts interrupted. (6) In an Order of the Department of the Ohio, of 1862, martial law was declared within Jefferson county, Kentucky, (in which is the City of Louis- ville,) for the reason as stated that the civil authorities were unable to afford the proper protection to persons or property." In a further Order of the same Department, of 1863, the commanding general, in view of the 1289 threatened advance of the forces under Gen. Morgan, declared martial law in Cincinnati, Ohio, and the cities, on the opposite bank of the Ohio River, of Covington and Newport, Kentucky. The Order required that all business be suspended, and that the citizens organize for the common defence." (7) By an order of July 31, 1863," the Commander of the same department, with a view of securing to loyal citizens the free exercise of the right of suffrage at a general election, declared the State of Kentucky under martial law. It is expressly specified that — " The civil authority, civil courts, and business, will not be suspended by this order. It is for the purpose only of protecting, if necessary, the rights of loyal citizens, and the freedom of election." (8) Some minor Instances of the Institution of martial law by military commanders during the war were the following: By an order of February 22, 1862, it was announced by Gen. Grant, commanding at Port Donelson, — General Commanding the Military Department, or from such officer as shall be duly authorized to grant the same. Any violation of this order shall subject the party offending to arrest and punishment. Until further orders, no person will be permitted to leave the city of Baltimore with- out a pass, properly signed by the Provost Marshal, and any one attempting to violate this order shall be promptly arrested and brought before the Provost Marshal for exami- nation. Until further orders, no onQ will be permitted to pass the barricades, or Into or out of the city, between the hours -of 10 P. M. and i o'clock A. M.., without giving the proper countersign to the guard In charge. Until further orders, no club-house or other place of like resort shall remain open, without a permission given by the General Commanding. Any attempt to violate this order will subject the club-house and property to seizure and occupation by the military, and the frequenters, who engage in or encourage such violation, to arrest. Until further orders, all bars, coffee-houses, drinking saloons and other places of like resort shall be closed between the hours of 8 P. M. and 8 A. M. Any liquor dealer or keeper of a drinking saloon or other person selling intoxicating drinks who violates this order shall be put under arrest, his premises seized and his liquors confiscated for the benefit of the hospitals. Until further orders, the General Commanding directs that the stores, shops, manu- factories and other places of business other than apothecary shops and printing offices of daily Journals, be closed at 5 P. M., for the purpose of giving patriotic citizens an opportunity to drill and make themselves expert in the use of arms." »G. Field O., No. 2. See ante as to the proclamation, subsequent in date, of the President, declaring martial law throughout the State. " a. O. 114. It is added : — " The Commanding General, convinced that no one whose services are necessary for the defence of these cities would care to leave now, j>lace8 no restriction upon travel." In the year previous— September, 1862 — Gen. Wallace had placed the same three cities under martial law, on account of the threatened approach of an army under Gen. B. K. Smltb. V Keb. Rec, 69. And see Id., p. T7, "G. 0. 120. MIUTABY LAW AND PRECEDENTS. 827 "Martial Law Is declared to extend over Western Tennessee. Whenever a sufficient number of citizens return to their allegiance, to maintain law and order over the territory, the military restriction here indicated will be removed." By an order of the Department of the Pacific, of ISCa,"" Gen Wright substantially initiates martial law in his command. " Military commanders " — it is directed — " will promptly arrest and hold in custody all persons against whom" the charge of aiding and abetting the rebellion can be sustained, and under no circumstances will such persons be released without subscribing the oath of allegiance to the United States." On June 29, 1863, on the occasion of the enemy's movement into Pennsylvania, the town of Columbia, Pa., was " placed under martial law, and Captain Samuel J. Randall, of the Philadelphia City Troop, was appointed Provost Marshal." The citizens of the town were required to " worli on the intrenchments." " 1290 (9) A more recent instance, since the substantial conclusion of the war, was the declaration of martial law at New Orleans by.the Department Com- mander, of July 30, 1866, resorted to on the occasion of a riot."- In another Order, of the next month," it is announced that the martial law thus declared will be 4;;ontinued and enforced "so far as may be required for the preservation of the public peace and the protection of life and property." (10) A still later' occasion was that of a flood in the Tennessee River at Chattanooga in March, 1867, which imperilled life and property and called for unusual precautions for their protection. At the request of the civil authorities. Captain J. KUne, 25th Infantry, commanding the post, placed the city under martial law and directed the seizure and use, by the military, of boats for the purposes of the moving of household goods, &c." In a com- munication from the mayor, of March 15th, in which the post commander is lormally thanked for his services, it is said : — " Martial law, under ordinary circumstances, is distasteful to a people inclined to the pursuits of civil life; but your action in this case must meet the commendation of all right-thinking people." ** (11) The lawless disturbances caused by the so-called " Ku-Klux " induced a proclamation of the President, of October 17, 1871, (issued under an authority to be noticed later,) suspending the privilege of the writ of habeas corpus, and thus virtually Initiating martial law, in certain designated counties of South Carolina. Similar action was taken at the same period by the State authorities in North Carolina and Tennessee. The action of the Governors of Washington and Idaho, in declaring martial law, respectively in 1885 and 1892, has been already adverted to. 1291 These instances illustrate the nature of martial law as declared and exercised in the United States, and show that it has been resorted to not only pending a war and as a war-measure, but also by way of precaution at periods of public emergency and danger, when the civil authorities were apparently powerless to afCord adequate protection to life and property. »G. O. 17. "Vn Eeb. Rec., 19. Instances of declarations of martial law by the Confederate authorities are noted in IV Id., 141, 181, 216 ; V Id., 3, 8, 12, 76, 332. " G. 0. 60, Dept. of La., 1866. This Order is In full .as follows : — " In consequence of tile riotous and unlawful proceedings of to-day. Martial Law is proclaimed in the City of New Orleans. Brevet Major General A. V. Kautz is appointed Military Governor of the City. He will make his Headquarters in the City Hall, and his orders will be minutely obeyed in every particular. All civil functionaries will report at once "to General Kautz, and will be instructed by him with regard to such duties as they may be hereafter required to perform." " G. O. 15, Div. of the Gulf, Aug. 4, 1866. "G. O. 12, Hdqrs.. Post of Chattanooga, Tenn., March 11, 1867. « " American Union " newspaper of Chattanooga, of that date. 828 MILITARY LAW AND PKECEDENTS. THE EXERCISE OF MABTIAl IiAW, AS CONNECTED WITH THE SUSPENSION OP THE WHIT OP HABEAS CORPUS. The most consider- able and important part of the exercise of martial law is the making of arrests of civilians charged with offences against the laws of war. But to arrest and hold at will, or with a view to trial by a military tribunal, is practically to suspend the citizen's privilege of the writ of habeas corpus. On the other hand, the suspending of the writ by military authority is essentially an exercise of the power of martial law. Thus the two powers are closely connected, the one substantially Including or involving the other,* and it becomes material to inquire whether, under the provision of the Constitution relating to the suspension of the privilege of the writ," the President, or a mili- tary commander representing him, is authorized to order or effect such sus- pension. In the early instance of the " Whiskey Insurrection " in Pennsylvania, In 1794-5, no suspension of the writ was resorted to: sundry of the insurgents were Indeed arrested by military authority, but they were duly brought to trial before a civil court." During the Burr conspiracy of 1806, Brig. Gen. Wilkinson, commanding In Louisiana, without formally suspending the writ, suspended it In fact so far as to disregard writs issued by the local courts, and even to imprison for a brief period a county judge." But in the case of two of the supposed con- spirators whom Wilkinson caused to be arrested under a charge of treason, the Supreme Court of the United States, in passing upon the question 1292 of their criminality, expressed incidentally the opinion that the suspen- sion was a power to be exercised by " the legislature." *' This dictum was long accepted as settling that the Constitution was to be construed as era- powering not the President, but Congress alone, to suspend the privilege of the writ." Early in the recent war, however, the question whether the President was not authorized to exercise the power independently of Congress was raised and considerably discussed. Upon this question having beffli referred by the President to the Attorney General, the latter, in July, 1861, gave it as his opinion that, while Congress alone could repeal the laws authorizing the Issue of the writ, or suspend ail right to or privilege of the same In general, the President was empowered to suspend the privilege in cases of particular in- dividuals found necessary to be arrested by him during the emergency on ac- count of complicity with the public enemy." By proclamation of May 10, 1861, the President had already authorized the commander of the Union forces in Florida " to suspend there the writ of habeas corpus," if he found it necessary. Later, In an order" issued from the War Department on August 13, 1862, he sus- " Ex parte Field, 5 Blatchford, 82 ; 9 Am. L. R. 507. " " The privilege of the writ of habeas corpus shall not be suspended, unless when In cases of rebellion or invasion the public safety may require it." Art. I, Sec. 9 8 2. " In Shays' Rebellion in Massachusetts, in 1786, the operation of the Habeas Corpus Act was suspended by the Legislature for a limited period. 3 Hildredth, Hist, of U. S., 474. " Martin. Hist, of Louisiana ; Guyarri, Do. ; Randall, Life of Jefferson, vol. 3 ; Wilkinson's Memoirs. "Ex parte BoUman &. Swartwout, 4 Cranch, 100, per Marshall, C. J. " Johnson v. Duncan, 3 Mart., 532 ; Story, Com. § 1342. »' 10 Opins., 74. And see also, as concurring in the view that the President may be empowered to suspend the writ — Ex Parte Field 5 Blatchford, 63, In re Dugan, 6 D. C 131 ; Halleck, 379 ; Whiting, War Powers, 202 ; Binney, " The Privilege of the Writ of Habeas Corpus under the Constitution." « G. O. 104 of 1862. MILITARY LAW AND PRECEDENTS. 829 pended the writ as to persons liable to draft who should absent themselves from their places of residence or from the country in order to avoid it; and subsequently, by his proclamation of Sept. 24, 1862, (heretofore cited as mak- ing subject to martial law all insurgent enemies, their aiders and abettors throughout the United States,) he further ordered :—" That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fprt, camp, arse- nal, military prison, or other place of confinement by any military authority, or by the sentence of any court-martial or military commission." Meantime, however, in the leading case of Ew parte Merryman," 1293 Chief Justice Taney had held, on circuit at Baltimore, that the power to suspend the writ did not subsist in the Executive, but was a legisla- tive function pertaining to Congress alone. The dictum of Chief Justice Mar- shall was thus reasserted as a positive ruling, and this ruling has been con- curred in by a series of decisions in the United States and State courts and by other recognized authorities." Further, Congress, by an express provision of the Act of March 3, 1863, c. 81, specifically vested in the President the authority, " whenever in his judg- ment the public safety might require it, to suspend the privilege of the writ in any case arising in any part of the United States," — thus impliedly assert- ing that the power so to authorize rested in itself alone.'" Pursuant to this Act the President issued his proclamation of September 15, 1863, already re- ferred to, in which he suspended the writ throughout the United States and during the existing rebellion, in all cases where, "by the authority of the President of the United States, military, naval, and civil officers of the United States, or any of them, hold persons under their command, or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled, drafted, or mustered or enlisted in, or belonging to, the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law, or the Rules and Articles of War, or the rules or regulations prescribed for the military or naval service by authority of the President of the United States ; or for resisting a draft, or for any other offence against the military or naval service." It is added : "And I do hereby require all magistrates, attorneys, and other civil officers within the United States, and all officers and others in the military and naval services of the 1294 United States, to take distinct notice of this suspension, and to give it full effeet, and all citizens of the United States to conduct and govern themselves accordingly." Subsequently, under the authority of the same Act, the President, by proc- lamation of July 5, 1864, in declaring martial law in. the State of Kentucky, suspended also the privilege of the writ of habeas corpus in the classes of cases specified in that proclamation, as hereinbefore set forth." The Act of 1863 expired with the termination of the rebellion in 1866, and no subsequent suspension has been ordered by the President except in the "Taney's Decisions, 246. " McCall V. McDowell, Deady, 233 ; Eid parte Benedict, 4 West. L., M., 449 ;- Jones ». Seward, 40 Barb., 563 ; People v. Gaul, 44 Id., 104 ; Skeen v. Monkheimer, 21 Ind., 1 ; Griffin v. Wilcox, 27 Id., 383 ; Johnson v. Jones, 44 Ills., 142 ; In re Kemp, 16 Wis., 3.59 ; In re Oliver, 17 Id., 681 ; 1 Bishop, C. L. § 63, 64 ; Cooley, Prins. Const. Law, 289 ; Flanders, Expos. Const., 134 ; 9 Am. L. B., 498. " See In re Murphy, Woolworth, 141. Similar legislation was resorted to by the Congress of the Confederate States by Act of Feb. 13, 1864, in which the power of suspension was expressly declared to be ■■ vested solely in Congress." This Act is given in the Appendix. "■ See under '' Instances illustrating the operation of martial law," ante. 830 MILITABY LAW AND PRECEDENTS. single case of the unlawful combinations of the so-called " Ku-klux " In South Carolina In 1871, in which, by proclamations of October 17 and November 10 of that year, issued In accordance with the special authority given by Congress, in the Act of April 20, 1871, c. 22, s. 4," (and limited as to its exercise to the end of the next regular session of Congress,) he suspended the writ In ten counties of that State." Thus, as a general principle of law, it may be deemed to be settled by the rulings of the courts and weight of legal authority, as well as by the action of Congress and practice of the Executive, that the President Is not empowered of his own authority to suspend- the privilege of the writ of habeas corpus, and that a declaration of martial law made by him or a military commander, in a district not within the theatre of war, will not justify such suspension in the absence of the sanction of Congress. The result must be that martial law proper will in the future rarely be Initiated in the United States where Congress has omitted to provide the means for rendering its exercise effectual. But, in the event of a practical exercise of the same in an adequate emergency, and of the consequent arrest and holding by military authority, in good faith and what is believed to be the full and proper performance of duty, of 1295 undoubted public enemies or other criminals, in temporary disregard of judicial process sued out for their release, it can scarcely be ques- tioned that Congress, if it does not expressly ratify the act, will at least protect or Indemnify the officers and soldiers concerned, by legislation corre- sponding to that enacted for a similar purpose at the close of active hostilities In the late civil war," while — as then — authorizing the removal to a court of the United States of actions for damages commenced against such persons in State courts."" JTTBISDICTION OF OFrENCES COMMITTED BY PERSONS ITNDEK MABTIAL LAW. It need hardly be remarked that martial law, lawfully de- clared, creates an exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offences against the laws of war, as well as those of a civil character, triable, at the discretion of the commander, fas governed by a consideration for the public interests and the due administra- tion of justice,) by military tribunals." The powers and procedure of such tribunals will be considered in treating of the Military Commission. The criminal jurisdiction, however, of the civil courts is much less subject to be abridged under Martial Law proper than under Military Government. " See the orders, &c., of the President as to the employment of the military forces In making arrests under this Act. ^ Since this case, the President has on seTeral occasions issued proclamations warn- ing turbulent and disorderly persons to disperse and retire to their a1)odes, according to the terms of Sec. 5300, Rev. Sts., but has not been forced to suspend the writ. See Instances of such proclamations referred to in Pakt III — " I. Employment of the military In aid of the execution of the laws," note. »" See the remarks of Chief Justice Chase at the close of his opinion in Ex parte Milligan, 4 Wallace, 141. On this subject, Halleck, (p. 380,) expresses himself as follows : — " Even if it were plain that the words of the Constitution were intended to give this power exclusively to Congress, we think that in a case of public dpinger, at once so imminent and grave as to admit of no other remedy, the maxim salus populi suprema lex should form the rule of action, and that a suspension of this writ, by the executive and military authorities of the United States, would be justified by the pressure of a visible public necessity : If an act of indemnity were required, it would be the duty of Congress to pass it." Compare also Pratt, 216. " The series of Indemnity Acts here referred to were those of March 3, 1863, c. 81 ; May 11, 1866, c. 80 ; and March 2, 1867, c. 155. As to their effect, see Beard v. Burts, fi5 U. S., 434 ; Beckwith v. Bean, 98 Id., 283 ; Mitchell v. Clarke, HO Id., 638-640, « See Coolt,-, Prins. Const. Law, 138. MILITARY LAW AND PBECEDENTS. 831 VI. TRIAL AND PUNISHMENT OF OFFENCES UNDER THE LAW OF WAR— THE MILITARY COMMISSION. ATTTHOBITY AND OCCASION FOB THE MILITARY COMMISSION. The Constitution confers upon Congress the power " to define and 1296 punish offences against the law of nations," and In the Instances of the legislation of Congress during the late war by which It was enacted that spies and guerillas should be punishable by sentence of military commis- sion, such commission may be regarded as deriving its authority from this constitutional power. But, in general, it is those provisions of the Constitution which empower Congress to " declare war " and " raise armies," and which, in authorizing the Initiation of war, authorize the employment of all neces- sary and proper agencies for its due prosecution, from which this tribunal de- rives its original sanction. Its authority is thus the same as the authority for the making and waging of war and for the exercise of military govern- ment and martial law. The commission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-chief in war. In some instances, as will presently be noted, Congress has specifically recognized the military commission as the proper war-court, and in terms provided for the trial thereby of certain ofCenceg. In general, however, it has left it to the President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the laws of war and other offences not cognizable by court-martial." The occasion for the military commission arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offences defined in a written code. It does not extend to many criminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is required. A commander indeed, where authorized to constitute a purely war-court, may designate it by any con- venient name; he may style It a "court-martial," and, though not a court- martial proper. It will still be a legal body under the laws of war. But to employ the same name for the two kinds of court could scarcely but result In confusion and in questions as to jurisdiction and power of punishment. Hence, in our military law, the distinctive name of military commission 3297 has been adopted for the exclusively war-court, which also, as will here- after be illustrated, is essentially a distinct tribunal from the court- martial of the Articles of war. Abroad, the court-martial is employed for the cognizance of offences not only of the officers, and soldiers of the army, but also of non-military persons sub- jected to military authority in time of war or rebellion." A late English writer, in approving the distinction established iui this country between the court-martial and the military commission, observes : — " In England both descriptions of courts are called courts-martial, and the general public are consequently not able to discriminate between the two." " " See 11 Opins. At. Gen., 305. •» A recent Instance is that of the trial, hy a court-martial, at Barcelona, September, 1893, of the " anarchist " Pallas. « Capt. Douglass Jones, Notes on Military Law, p. 3. It is nevertheless the (act that the English court-martial under military government or martial law Is distinguished in martial particulars from the regular court-martial, an-J mainly in that it ia not governed "oy the same rules as to its composition, or as to its power of sentence, and that it is more summary in its proceeding. See Hough, 883; Id. (P.) 518, 531, 536; Finlason, Coma, on Mar. Law, 9, 16, 44, 127, 142, 243-5 ; In re Bgan, 5 Blatchford, 321. It has been chtracterized as a " committee " rather than a court. Finlason. ante. 832 MILITAKY lAW AND PRECEDENTS. In our early wars, indeed, before the distinction between the two species of court was Inaugurated, cases which would now be referred to a military commission were brought- to trial before special courts-martial. Such was the case of Joshua Hett Smith, tried by court-martial in 1780, under a Resolu- tion of Congress, for assisting and combining with Gen. Arnold in his treason- able proceedings. Such too was the case of Louis Louaillier, brought to trial for being a spy, and for other offences, before a General Court-Martial con- vened by Gen. Jackson in New Orleans, in March, 1815. Such also were the cases of Arbuthnot and Ambrister, tried by court-martial. In Florida, in April, 1818, for Inciting and assisting the Creek Indians to make war against the United States, and convicted and executed as noticed in a previous Chapter." HISTORY OP THE MILITAKY COMMISSION IN OTJB LAW — Gen. Scott's " Military Commission." It was not till 1847, upon the occupation by our forces of the territory of Mexico in the war with that nation, that 1298 the military commission was, as such, initiated. In G. O. 20 of February 19 of that year, issued from the Headquarters of the Array at Tampico, (as slightly added to by G. 0. 190 and 287 of the same series, ) it was announced that — "Assassination, murder, poisoning, rape, or the attempt to commit either, malicious stabbing or maiming, malicious assault and battery, robbery, theft, the wanton desecration of churches, cemeteries, or other religious edifices and fixtures, the interruption of religious ceremonies, and the destruction, except by order of a superior officer, of public or private property, whether com- mitted by Mexicans or other civilians in Mexico against individuals of the U. S. military forces, or by such individuals against other such individuals or against Mexicans or civilians ; as well as the purchase by Mexicans or civilians in Mexico, from soldiers, of horses, arms, ammunition, equipments or cloth- ing," — should be brought to trial before " military commissions." Thus initiated, such commissions were repeatedly convened by Gen. Scott, as also by Gens. Wool and Taylor, mostly in 1847." The offences tried thereby were not always confined to those specified in the Orders as above cited ; such charges as "Manslaughter," "Burglary," "Picking pockets," "Carrying a concealed weapon," " Threatening the lives of soldiers," " Riotous conduct," "Attempting to pass counterfeit money," " Obtaining money under false pre- tences," " Fraud," "Attempt to defraud the United States," " Introducing spirituous liquor into U. S. barracks " — being also found In the G. O. pro- mulgating the proceedings of trials. Gen. Scott's " Council of war." The acts thus made punishable by military commissions were mainly criminal offences of the class cognizable by the civil courts in time of peace. ,A further description of offences, vie. those against the laws of war, yet remained to be provided for. For the trial and punishment of these offences there was Inaugurated by' Gen. Scott a 1299 separate tribunal designated as the council of war, not however mate- rially differing from the military commission except In the class of cases referred to it. The principal charges referred to and passed upon by "As to the action of Gen. Jackson In the case of Ambrister, see ante, Ch. XXI. " Such commissions were ordered by Gen. Scott in G. O. 81, 83, 121, 124, 147, 171, 194, 215, 239, 267, 270, 273, 292, 334, 335, 380, 392, of 1847; Do. 9 of 1848; — by Gen. Taylor in Do. 66, 106, 112, 121, of 1847 ; — by Gen. Wool in Do. 140, 179, 216, 463, 476, 514, of 1847. And note, in 5 Oplns. At. Gen., 55, the case of Capt. Foster, who, for the alleged murder of another ofScei, was put upon trial before a military com- mission convened in Mexico by Gen. Scott, but escaped pending the hearing. As to the occasion for and legality of these commissions, see Ilalleck, 783. MILITARY LAW AND PRECEDENTS. 833 these courts were Guerilla warfare or Violation of the Laws of War by Gueril- leros, and Enticing or Attempting to entice soldiers to desert the TJ. S. service." The trials, however, were few; this branch of jurisdiction not then becoming fully developed. Military commissions in the late war. The military commission and coun- cil of war of the Mexican war were together the originals of the Military Com. mission as so extensively employed during the recent war, and as recognized in our existing statute law; the two jurisdictions of the earlier commission and council respectively being united in the later war-court, for which the gen- eral designation of " military commission " was retained as the preferable one." Coming down to the period indicated, we find several instances of rdilitary commissions convened as early as in 1861.'" In a General Order, (No. 1,) of Jan. 1, 1862, Maj. Gen. Halleck, commanding Department of Missouri, first defined at length to his command their nature and jurisdiction as then under- stood ; similar action was taken by other department commanders ; " and these courts, thus introduced, soon came to be generally adopted as authorized and established tribunals for time of war and rebellion. Statutory recognition and provision. Presently also they were recognized as legal courts, and their jurisdiction in some cases added to, by express statute. Sec. 30 of the Act of March 3, 1863, c. 75, the original of the present Art. 58, provided that murder, manslaughter, robbery, larceny, and certain other 1300 specified crimes, when committed by military persons in time of war or rebellion, should be punishable by sentence of court-martial or military commission.''^ So, sec. 38 of the same Act, in amending the previously exist- ing statute relating to spies, provided that this class of offenders should be triable by military commission as well as court-martial, and this form is still retained in the military code — Sec. 1343, Rev. Sts. In the following year, by Act of July 2, 1864, c. 215, commanders of departments and armies were author- ized to execute sentences imposed by military commissions upon guerillas. Next, by Act of July 4, 1864, c. 253, s. 6, (not now in force,) inspectors and other civil ofiicials.and employees of the quartermaster department of the army were made amenable to trial by military commission (or court-martial) for fraud, neglect of duty and accepting bribes. Meanwhile the Act of June 20, 1864, c. 145, s. 5 & 6, in establishing the Bureau of Military Justice, pro- vided for the revision and recording thereby of the proceedings of military commissions equally as of those of other military courts, and this provision was in substance repeated in the sections of the subsequent Acts of July 28, 1866, and June 23, 1874, (Sec. 1199, Rev. Sts.,) relating to the same branch of the service. In the meantime the Act of March 3, 1865, c. 91, establishing an asylum for disabled volunteers, appropriated as one of its means of support all fines adjudged against volunteer officers and soldiers by sentence either of court- martial or military commission — a provision re-enacted in the subsequent statute on the same subject of March 21, 1866, c. 21, and retained in Sec. 4831, Rev. " See cases of such Councils in G. O. 181, 184, 187, 195, 291, Hdqrs. pf Army, 1847 ; Do. 22, 35. 41, Id., 1848. G. O. 372 o( 1847 relates to their composition, powers, &c. " The term " council of war," as a designation for a court, has not since reappeared in our law or practice. «» G. O. 14, 20, 118, Western Dept., 1861 ; Do. 24, 25, Dept. of N. B. Va., 1861 ; Do. 68, Army of the Potomac, 1861. " See, for example G. O. 23, Dept. of the Gulf, 1862 ; Do. 7, Dept. of Kans., 1862 ; Do. 87,' Dept. of N. Mex., 1862; Do. 150, Dept. of the Ohio, 1863; Do. 57, Dept. of Va. & No. Ca., 1863 ; Do. 27, Dept. of the N. West, 1864. n The words " or military commission " were, apparently inadvertently, omitted from the Article as Inserted in the Revised Statutes. 440593 0-42-53 834 Mn.TTARY LAW AND PBBCBDBNTS. Sts. A further and the latest specific authorization of the employmwit of the military commission as a court Is found in the " Reconstruction Act " of March 2, 1867, c. 153, s. 3 & 4, to be treated of under the next Title. A pointed con- temporaneous recognition of such tribunal is that of the provision of March 2, 1867, c. 155, legalizing proceedlnjgs under martial law, trials by military com- mission, &c., had during the war. A later Instance occurs In s. 1 of the Act of March 3, 1873, c. 249, (now Sec. 1344, Rev. Sts.,) establishing a general mili- tary prison, (that now at Fort Leavenworth, Kansas,) for the confinement, &c., of ofCenders convicted befdre " any court-martial or military commission 1301 In the United States." Further statutory recognitions of the commission as a tribunal known to ofur law are contained in the series of Army Appropriation Acts, from that of June 15, 1864, to the most recent of March 3, 1885, in all of which, (vrtth exceptions between 1872 and 1876,) are items of appropriation for the " expenses of courts-martial, military com/missions, and courts of inquiry," or for the " compensation of witnesses " or " clerks and witnesses" at or before the same. Executive and judicial, &c., recognition. The military commission has also been recognized as an authorized provisional tribunal in proclamations and orders of the President and in rulings and opinions of the courts and law officers of the government It was referred to in the proclamation of . September 24, 1862, as an authorized court for the trial of the offences of persons under martial law, and its proceedings and sentences have been approved and executed in and by numerous General Orders Issued through the War Department, of which some of the principal will hereafter be cited." The Supreme Court of the United States has acknowledged the validity of Its judgments In leading cases," and other courts of the United States and of the States have equally accepted It as a legal body." In an Important adjudication the Supreme Court of Tennessee refers to it as " a tribunal now (1870) as well known and recognized In the laws of the. United States as a court-martial."" Further the Attorneys (and Solicitors) General have repeatedly had occasion to acknowledge its authority and support its jurisdiction ; " as, for example, in such cases as those of the conspirators concerned in the assassination of President Lincoln," of Weaver, convicted of murder by military com- 1302 mission In the Reconstruction period," of the Modoc Indians concerned In the killing of Gen. Canby and Rev. B. Thomas," and other less marked Instances." Frequency in the late war. Thus sanctioned, these tribunals, pending the civil war, and down to the termination of the operation of the Reconstruction Laws, must have tried and given judgment in upwards of two thousand cases, promulgated in G. O. of the War Department and of the various military departments and armies. Of these cases the principal historically, as well as the more material in a legal point of view, have been, or will be, referred to in the course of the present Pabt of this work. " It is recognized In the recent G. O. 75 of 1883, which provides for the forwarding of records of military commissions, equally as of courts-martial, to the Judge Advocate General. And see, now, par. 985, A. B. of 1889. '"Ex parte Vallandigham, 1 Wallace, 243; Coleman v. Tennessee, 97 U. S., 509. " In re Egan, 6 Blatchford, 319 ; In re Martin, 45 Barb., 146 ; Em parte Bright, 1 Utah, 145. " State V. Stillman, 7 Cold., 352. " See Cooley, Prlns. Const. Law, 137. "11 Opins. At. Gen., 297. ™13 Id., 59. "14 Id., 249. •• Sec 6 Id., 5S ; 12 Id., 883. MILITARY LAW AND PRECEDENTS. 835 CONSTITtJTION OF THE MILITARY COMMISSION. In the absence of any statute prescribing by whom military comnrissions shall be constituted, they have been constituted in practice by the same commanders as are empow- ered by Arts. 72 and 73 to order general courts-martial, to wit, commanders of departments, armies, divisions, and separate brigades.'' The President, as Commander-in-chief, may of course assemble military commissions as he may assemble courts-martial. Commanders of " districts " have sometimes, and legally under the general law of war and military government, convened these tribunals, though their commands have been less than a brigade; but such instances have been rare. The provisions of the Articles of war indicating by whom the court is to be constituted where the commander who would regularly order it is in fact the prosecutor or accuser, apply in terms only to general courts-martial, and are not required to be observed in the convening of the more summary tribunals under consideration. Where, however, an unreasonable delay will not thereby be caused, or the Interests of the service or of the public otherwise prejudiced, such provisions may well, as a measure of justice or expediency, be observed." 1303 COMPOSITION. Following the analogy of courts-martial, military commissions in this country have invariably been composed of commis- sioned officers of the army. Strictly legally they might indeeA be composed otherwise should the commander will it — as, for example, in part of civilians or of enlisted men. The court-martial convened under martial law by Gov. Eyre, in Jamaica in 1865, for the trial of Geo. W. Gordon, was a mixed court of one military and two naval officers, and it was in regard to this court that D'lsraeU observed in Parlisunent that — " in the state of martial law there can be no irregularity in the composition of the court, as the best court that can be got must be assembled."" The rank of the members of a military commission is legally immaterial. In a case indeed, (which must be rare,) of a trial of an officer of the army by Such a tribunal, the provision of Art. 79 as to the relative rank of the members will, if practicable, properly be regarded. In tlie absence of any law fixing the nurnber of members of a military conj- mission, the same may legally be composed of any number in the discretion of the convening authority. A commission of a single member would be as strictly legal as would be one of thirteen members. In his General Orders already cited," Gen. Scott directed that mllitairy commissions should be gov- erned as to their composition, &c., by the provisions of the Articles of war prescribing the number of members, &c., for courts-martial: as to councils of war, it was specified that they should consist of "not less than three nor ■I As to tbe general rule, tbat military commissions are constituted and composed, and their proceedings are conducted, similarly to general courts-martial — see 6. O. 20 of 1847, (Gen. Scott;) Do. 1, 7, 33, Dept. of the Mo., 1862; Do. 150, Dept. of the Ohio, 1863 ; Do. 27, Dept. of the N. West, 1864 ; 1 Bishop, C. L. § 45, 52 ; Digest, 501. As to the procedure of military courts under martial law, the English writer Pratt observes, (p. 216,) — " The forms of military law should, as far as practicable, be adhered to." «" See G. C. M. O. 11, Dept. of Texas, 1866. " Jones, Notes on Martial Law, 11 ; Finlason, History of the Jamaica Case, 111. In Queen v. Nelson & Brand, Cockbnrn, C. J., commented upon the composition of this court as unauthorized — as of course it was by the law governing courts-martial proper. It appears from the report the Commissioners on the Jamaica Case, (Finlason, Hist., p. 110,) that this court had been preceded, during the same exigency, by one " consisting partly of members of the legislature." In the Demerara Case, in 1823, a militia officer, (really the head of the colonial Judiciary, commissioned pro hoc vice in the miliUa,) was associated with officers of the army on the court-martial which tried missionary Smith, a civilian. 2 Hansard, XI, 972. X G. O. 20, 190, 287, ^>t 1847. 836 MILITARY L.VW AJSO PRECEDENTS. more than thirteen officers." In Gen. Halleck's Order of Jan. 1, 1862, hereto- for noticed, " it was declared: — "They" (military commissions) "will 1304 be composed of not less than three members, one of whom will act as judge advocate or recorder where no officer is designated for that duty. A larger number will be detailed where the public service will permit." In practice during the late war, while commissions were most commonly consti- tuted with five members, there was a not unusual number, and was regarded as the proper minimum." The court in VaUandigham's case was convened with nine members, of whom seven acted on the trial. In practice also a separate officer has been almost invariably detailed as judge advocate." JXJKISDICTIOII' — As to place. (1) A military commission, (except where otherwise authorized by statute,) can legally assume jurisdiction only of offences committed within the field of the command of the convening com- mander. Thus a commission ordered by a commander exercising military government, by virtue of his occupation, by his army, of territory of the enemy, cannot take cognizance of an offence committed without such territory." (2) The place must be the theatre of war or a place where military government or martial law may legally be exercised; otherwise a military commission, (unless specially empowered by statute,) will have no jurisdiction of 1305 offences committed there." The ruling in the leading case of Ex parte Milligan,'" that a military commission, which had assumed jurisdiction of offences committed in 1862 In Indiana, — a locality not involved in war nor subject to any form of military dominion, — ^had exceeded its powers, has been referred to under the previous Titles, where also the fields of military gov- ernment and martial law have been defined. (3) It has further been, held by English authorities that, to give jurisdiction to the war-court, the trial must be had within the theatre of war, military government, or martial law ; that, if held elsewhere, and where the civil courts are open and available, the proceedings and sentence will be coram non judice.'^ Thus it is considered by Finlason that the trial, by a military court, of Wolf Tone in 1798, was illegal because he was tried in Dublin, outside of the region of war and martial law." " G. O. 1, Dept. of the Mo., 1862. '"Digest, 501. "The luling, however, in G. C. M. O. 267 of 1865, that the proceedings of a mili- tary commission for which no .indge advocate had been detailed were on that account "illegal," was erroneous, since whether such a tribunal shall or not be supplied with a Judge advocate, Is, in the absence of law on the subject, a matter in the discretion of the commander. " See Finlason, Repression of Riot and Rebellion, 106 ; Franklyn, Outlines of Mar. Law, 85; Pratt, 216; G. O. 125, Second Mil. Dist., 1867; d. O. 20, 1847, (Gen. Scott.) In the Jamaica Case, it was held by Chief Justice Cockburn, in Queen v. Nelson & Brand, that Governor Eyre acted illegally in arresting Gordon at Kingston, outside the "proclaimed district," (the district placed bjy the (Jovernor's proclamation under martial law,) where he would have been entitled to a jury trial In a civil court, and removing him within that district for trial and punishment before a martial court Finlason, Hist, of the Jamaica Case ; Jones, 11, 12 ; Franklyn, 85 ; Pratt, 216. In Queen v. Eyre, Blackburn, J., held that the removal was justifiable. Finlason, Hist Jamaica Case ; Do., Report of Case of Queen v. Eyre ; Solicitor's Journal, vol. 12, p. 674. ™ See Clode, M. L., 189. "' 4 Wallace, 2. And see Milligan v. Hovey, 3 Bissell, 13 ; Skeen v. Monkheimer, 21 Ind., 1 ; Murphy's Case, Woolworth, 141 ; Devlin's Case, 12 Ct. CI., 266 ; Id., 12 Opins. At. Gen., 128 ; G. O. 7, Dept of Kans., 1862 ; Do. 37, Id., 1864 ; Do. 115, Dept. of the Mo., 1864. Compare, In this connection, the argument of Hon. J. A. Bingham, on the Trial of the Assassins of President Lincoln. »i See Clode, M. L., 189. "Finlason, Corns, on Mar. Law, p. 4-5, 129. And see this trial, reported In 27 HoweU'B St. T., 615. MILITARY LAW AND PRECEDENTS. 837 These rules which have their origin in the fact that war, being an excep- tional status, can authorize the exercise of military power and jurisdiction only within the limits — as to place, time, and subjects — of its actual existence and operation, have not always been strictly regarded In our practice. A singular instance of their disregard during the late war is presented by the case of T. E. Hogg and his six associates, who, for the alleged offence of taking passage upon a U. S. merchant vessel at Panama, (a foreign country,) in November, 1864, with the secret purpose of subsequently seizing by force and arms the ship and cargo in the Interest of the Southern confederacy, were, upon apprehension, transported to, and tried by military commission at, San Fran- cisco, a place quite without the theatre of the war." As to time. An offence, to be brought within the cognizance of a mili- 1306 tary commission, must have been committed within the period of the war or of the exercise of military government or martial law. As in the ordinary criminal law one cannot legally be pulshed for what is not an offence at the time of the sentence," so a military commission cannot, (in the absence of specific statutory authority,) legally assume jurisdiction of, or Im- I)Ose a punishment for, an offence committed either before or after the war or other exigency authorizing the exercise of military power." Thus, a military commander, in the exercise of military government over enemy's territory oc- cupied by his army, cannot, with whatever good intention, legally bring to trial before military commissions ordered by him offenders whose crimes were com- mitted prior to the occupation. So, while the jurisdiction may be continued after active hostilit'ies have ceased, it cannot be maintained after the date of a peace or other form of absolute discontinuance, by the competent authority, of the war status. Thus, In the case, already referred to, of Capt. Foster, of the Georgia volunteers, charged with the murder of Lieut. GofC, Pa. Vols., in Mexico, pending the Mexican war, it was held by Attorney General Toucey that, the temporaray military government " ha^'lng ceased by the restoration of the Mexican authorities, neither the offence nor any prosecution for it can 1307 any longer, in contemplation of law, have existence."" So, where the status has been that of martial Ixjao proper, the jurisdiction expires with the formal revocation of the declaration of the same, or, in the absence of a formal revocation, with the complete passing off of the exigency." Where trials, or proceedings for trials, founded on martial law, are pending, the " G. O. 52, Dept. of the Pacific, 1865. They were all sentenced to death, but their sentences were commuted to imprisonment in a penitentiary. "Com. 1). Duane, 1 Binney, 601 ; Anon., 1 Washington, 84; U. S. v. Tynen, 11 Wallace, 88 ; U. S. V. Finlay, 1 Abbott, U. S. R., 364. ■" See Finlason, Coms. on Mar. Law., 53 ; Clode, M. L., 189 ; Tliring, Crim. Law of Navy, 42-3 ; Wells on Jurisdiction, 577 ; 12 Opins. At. Gen., 200 ; G. O. 26 of 1866 ; Do. 12, Dept. of thfe South, 1868 ; Do. 9, First Mil. Dist., 1870 ; Digest, 507. " Martial law is not retrospective. An ofEender cannot be tried for a crime committed before martial law was proclaimed." Pratt, 216. And see Jones, 12. The jurisdiction of such a tribunal is " determined and limited by the period (and territorial extent) of the mili- tary occupation." G. O. 125, Second Mil. Dist., 1867. "5 Opins., 55. The case of the Modoc Indians, tried, in July, 1873, by military com- mission after hostilities had been finally concluded, may seem to have been an exception to the general rule laid down under this head. The jurisdiction assumed by the gofern- ment in this instance is defended as follows by Atty. Gen. Williams : — " Doubtless the war with the Modocs is practically ended, unless some of them should escape and renew hostilities. But It is the right of the United States, as there is no agreement for peace, to determine for themselves whether or not anything more ought to be dpne for the pro- tection of the country or the punishment of crimes growing out of the war." 14 Opins., 253. " See In re Martin, 46 Barb., 146 ; also Finlason, Coms. on Mar Law, 4, 5, 130, as to Crogan's case. 838 MnUTAEY LAW AND PRECEDENTS. Status should be preserved for the purposes of such trials, and till the findings, and sentences If any, are finally acted upon. As to persons. From what has heretofore been said In regard to the appU- cation of the laws of war to enemies in arms, and their operation under a state of military government or martial law, it will have been seen that the classes of persons who in our law may become subject to the jurisdiction of military commissions are the following: (1) Individuals of the enemy's army who have been guilty of illegitimate warfare or other offences in violation of the laws of war; (2) Inhabitants of enemy's country occupied and held by the right of conquest ; (3) Inhabitants of places or districts under martial law ; (4)" Officers and soldiers of our own army, or persons serving with it in the field, who, in time of war, become chargeable with crimes or offences not cog- nizable, or triable, by the criminal courts or under the Articles of war. Of the first class are persons In the military service of the enemy who have been guilty of any of the descriptions of offences specified under a previous Title" as violations of the laws of war;— as those, for example, who have assumed the r61e of the spy, or have taken part in guerilla raids, or the killing, robbery, &c., of defenceless persons or prisoners of war, or have come within our lines to recruit soldiers or for other unauthorized purpose, or have violated a flag of truce or committed other act of treachery or perfidy, or, as paroled prisoners of war, have violated their parole. The gecond and third classes embrace much the greater number of in- i308 divlduals who, in our late war and the war with Mexico, were brought to trial before the tribunal under consideration. Among the numerous cases of persons so tried were included upwards of one hundred eases of women. The number of these offenders is illustrated by the great variety of offences and phases of offence of which they were convicted, as specified in the General Orders of the period and noticed under the next head. The greater part of the offenders embraced in the fourth class have been military persons tried under sec. 30, Act of March 3, 1863, or who became amenable to military commission because of criminal offences committed in places where, by reason of war and military occupation, or of martial law, the ordinary criminal courts were closed. The others of this class were parties who became so amenable by reason of violations of the laws of war or of- fences of a military character, not Included among the acts made punishable by the code of Articles of war. Besides officers and soldiers, there are comprised In this category camp-followers and other civilians employed by the govern- ment in connection with the army in war. Thus, in the G. O. of the pei'ioa"Of the late war, there are found, (as tried by military commission,) sutlers, offi' cers' servants, teamsters, persons employed on government steamers and transports, or otherwise in the quartermaster, provost marshal and other staff corps, as also individuals serving in such capacities as veterinary surgeons," government detective,"", medical cadet,* Ueutenant in the revenue service,' special agent of the Treasury,' newspaper correspondent,* &c. *■ Title 111, ante. That Indiana mar be included in this class, see case of Hodocs heretofore referred to; also cases In 6. O. 120 of 1863, 6. C. M. O. 608 of 1866, and O. O. 86 of 1866 — of Sioux Indians concerned in murdprs and other crimes committed in Minnesota in 1862. That a military commission can take cognizance of violations of the laws of war by Indians, oisly when their trihe is Involved In war with the United States, see Digest, 606. » 6. O. 16, Dept. of the Mo., 1862. «" G. O. 61, Dept. of the Mo., 1864 ; Do. 6, Dept. of Va., 1866. ' G. O. 13, Dept. of Va. & No. Ca., 1864. « G. C. M. O. 308 of 1864 ; G. O. 77, Dept. of Va. k No. Ca., 1864. » G. O. 55, Dept. of Ala., 1865 ; Do. 8, Id., 1866. * G. O. 29, Army of the Potomac, 1863. MILITARY LAW AND PRECEDENTS. 839 As to offences. In the war with Mexico, as has heretofore been noticed, the tribunal known as the " military commission " was employed for the trial and pimishment of the ordinary crimes such as in a state of peace would have been taken cognizance of by the criminal courts, while violations of the laws of war were referred to another tribunal designated as " council of war." In the simpler system matured in our recent war both jurisdictions were, as 1309 has been seen, united in one court for which was preferably retained the name of military commission. The oflferices cognizable by military commissions may thus be classed as follows: (1) Crimes and statutory of- fences cognizable by State or V. S. courts, and which would properly be tried by such courts if open and acting; (2) Violations of the laws and usages of war cognlzaSle by military tribunals only; (3) Breaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of war. Of the offences of the first class, those most frequently brought to trial be- fore military commissions during the late war, as shown by the General Orders, were murder, manslaughter, robbery, larceny, burglary, rape, arson, assault and battery, and attempts to commit the same ; criminal conspiracies," riot, perjury, bribery, accepting bribes, forgery, fraud," embezzlement, misappropriation 1310 or other illegal disposition of public property, receiving stolen goods, obtaining money or property under false pretences, making or uttering counterfeit money, uttering false Treasury notes, breaches of the peace and disorderly conduct, keeping a disorderly house, selling obscene books, &c., ma- licious mischief or trespass, carrying concealed weapons, abuse of official au- thority by civil officials, resisting or evading the draft, discouraging enlist- ments, purchasing arms, clothing, &c., from soldiers, in violation of Sec. 5488, Rev. Sts., aiding desertion, &c., in violation of Sec. 5455, Bev. Sts. " Treason " — it may be added — ^was not unfrequently charged, but mostly as a name for some violation of the class next to be mentioned. Of the second class, of offences In violation of the laws and usages of war, those principally, in the experience of our wars, made the subject of charges and trial, have been — breaches of the law of non-intercourse with the enemy, ■ Among the conspiracies of this class, or of the first and second classes combined, may be noted the following: — that of Bowles, Mllligan and Horsey, convicted of conspiring together, and with other members of the so-called " Order of American Knights " or " Sons of Liberty," against the U. S. Government, and in the Interest of the KebelUon, (G. C. M. O. 214 of 1885 ;) — that of Herold, Payne and others convicted of conspiring with John Wilkes Booth, Jefferson Davis and sundry other persons in the assassination of President Lincoln and the attempted assassination of the Secretary of State, Mr. Seward, (G. C. M. O. 356 of 1865 ;) — that of Capt. Henry Wlrz of the confederate army, convicted of conspiring with Jefferson Davis, James A. Seddon, Howell Cobb, John H. Winder, Richard B. Winder and others, against the lives and health of Union soldiers held as prisoners of war at Andersonville, Ga., (G. C. M. 0. 607 of 1865;) — that of William Murphy, convicted of conspiring with Davis, Seddon, Judah P. Benjamin and others, to burn and destroy boats on the western rivers, (G. C. M. O. 107 of 1866 ;) — that of the persons concerned in the resisting and defeating of the draft, especially in Carbon, Columbia, Schuylkill, Clearfield and Luzerne Counties, Pennsylvania, in 1864-5, (G. O. 23, 64, 67, 68, 69, Dept. of the Susquehanna, 1864 ; Do. 82, 85, Dept. of Pa., 1864; Do. 4, 6, 36, Id., 1865;) — that of G. St. Leger Grenfel ajid his associates, (Charles Walsh, Buckner S. Morris, R. T. Semmes and others,) convicted of an attempt to release the confederate prisoners of war at Camp Douglass near Chicago, and to lay waste and destroy that city, (G. O. 30, Northern Dept., 1865 ;) — that of T. E. Hogg and others convicted of being concerned In the attempt to seize the steamer Salvador at Panama, in 1864, (G. O. 27, Dept. of the Pacific, 1865). " Among the various forms of frtMd charged is that of defacing or altering the " U. S." brand on public animals, with fraudulent Intent. See cMses in G. C. M. O. 488 of 1865 ; G. O. Ill, Dept. of the Mo., 1863 ; Do. 72, Dept. of Ark., 1864. 840 MILITARY LAW AND PRECEDENTS, such as running or attempting to run a blockade ; ' unauthorized contracting, trading or dealing with, enemies, or furnishing them with money, arms, pro- visions, medicines, &c. ; ' conveying to or from them dispatches, letters, or other communications, passing the lines for any purpose without a permit, or com- ing back after being sent through the lines and ordered not "to return ; aiding the enemy by harboring his spies, emissaries, &c., assisting his people or friends to cross the lines into his country, acting as guide to his troops,' aid- ing the escape of his soldiers held as prisoners of war," secretly recruiting for his army," negotiating and circulating his currency or securities-^as confeder- ate notes or bonds in the late war," hostile or disloyal acts, or publications or declarations calculated to excite opposition to the federal government 1311 or sympathy with the enemy," &c. ; engaging In Illegal warfare as a guerilla, or by the deliberate burning, or other destruction of boats, trains, bridges, buildings, &c. ; acting as a spy, taking life or obtaining any advantage by means of treachery ; abuse or violation of a flag of truce ; viola- tion of a parole" or of an oath of allegiance or amnesty,'^ breach of bond given for loyal behaviour, good conduct, &c. ; " resistance to the constituted military authority, bribing or attempting to bribe officers or soldiers or the constituted civil officials ; kidnapping or returning persons to slavery in disre- gard of the President's proclamation of freedom to the slaves, of January 1, 1863." Of the third class are acts prohibited by express order, or In breach of mili- tary discipline, such as selling to soldiers citizens' clothing, furnishing them with liquor, introducing liquor or other forbidden articles into the camps, &c., ' See case of running the blockade and conveying munitions to tlie enemy, in G. C. M. O. 254, 338, 344, of 1864. ^ In tliis class is included the offence, several times brought to trial, of selling contra- band goods, with a view to their being carried secretly through the lines to the enemy, by other persons. See convictions In G. C. M. O. 398 of 1864 ; Do. 55, 57, 58, 74, of 1865. " A very grave offence where the ottender voluntarily offers bis services as such guide. Bluntschll § 634. ■» G. O. 55, Div. W. Miss., 1864 ; Do. 47, Dept. of the Mo., 1864 ; Do. 75, Dept. of the Ark., 1864; Do. 30, Northern Dept., 1865. " G. O. 114 of 1863 ; G. C. M. O. 155, 249, of 1864. « G. O. 135, 169, Dept. of the Mo., 1864 ; Do. 35„ Middle Dept., 1865. And compare Horn V. Lockhart, 17 Wallace, 580. "G. C. M. O. 270, 273, 294, of 1864; Do. 214 of 1865, (case of Bowles, Milligan, and Horsey;) G. O. 7, Dept. of the Mo., 1862; Do. 148, Id., 1863; Do. 86, 154, Id., 1864; Do. 68, Dept. of the Ohio, 1863, (case of Vallandigham ;) Do. 121, Middle Dept., 1864; Do. 24, 67, Dept. of Susquehanna, 1864 ; Do. 5, Dept. of N. Mex., 1864 ; Do. 1, Dept. of No. Ca., 1866. And see cases in the following Orders, of treating with disrespect the U. S. flag by pulling down, tearing, defacing, &c. : S. O. 70, Dept. of the Gulf, 1862 ; G. O. 28, Id., 1865; Do. 50, Middle Dept., 1863; Do. 50, Dept. of the Mo., 1863; Do. 8, Dept. of the Miss., 1866 ; Do. 26, Fourth Mil. Dist., 1867. And see remarks of Maj. Gen. Thomas in G. O. 21, Dept. of the Tenn., 1867. In this list also may be classed the cases in which the offender is charged as — " Being a bad and dangerous man," or in terms to that effect. See G. O. 229 of 1863 ; G. C. M. O. 304 of 1864 ; G. O. 19, Dept. of the Miss., 1862; Do. 34, Dept. of the Mo., 1863; Do. 41, Middle Mil. Dept., 1865 ; Do. 11, Dept. of Fla., 1866. " Violations of parole by paroled prisoners of war are noted under Titlb III, ante. As to cases of violation of a parole given not to render aid or services to the enemy, see G. O. 20, Dept. of the Mo., 1862 ; Do. 34, 82, Id., 1863 ; Do. 43, Middle Dept., 1864 ; Do. 28, Id., 1865. '^ See G. O. 229 of 1863 ; where a conviction of a violation of an oath of allegiance was disapproved on the ground that the violation consisted not in acts but in words only. "•G. O. 34, Dept. of the Mo., 1863; Do. 63, Sixteenth Army Corps, 1863. "G. O. 7 of 1864; G. C. M. O. 146, 250, of 1864; G. O. 106, Sixteenth Army Corps, 1863 ; Do. 155, Dept. of No. Ca., 1865. MILITARY LAW AND PRECEDENTS. 841 dealing In articles likely to reach and relieve the enemy, violating police, sani- tary, or quarantine regulations, Scc." 1312 Offences not cognizable. The subject of the jurisdiction of military commissions Is further illustrated by a reference to the classes of cases of which these tribunals cannot legally take cognizance. Thus they have no jurisdiction of the purely military ofEencM specified in the Articles of war and made punishable, by sentence of court-martial ; and in repeated cases where they have assumed such jurisdiction their proceedings have been declared Invalid in General Orders." So, being properly criminal courts, they have no jurisdiction of private con- troversies between individuals relating to pecuniary obligations, the title to property, &c.^ Such matters pertain to the province of the local courts, or to tribunals erected in their stead, and expressly Invested with a oivil jurisdiction, by the military commander.'' It may be added that the jurisdiction of the military commission should' be restricted to cases of offence consisting in overt acts, i. e. in unlawful com^ missions or actual attempts to commit, and not in intentions merely ."^ Thus what would justify in war a precautionary arrest might not always justify a trial as for a specific offence. FBOCEDtTBE. In the absence of any statute or regulation governing the proceedings of military commissions, the same are commonly conducted accord- ing to the rules and forms governing courts-martial." These war-courts 1313 are indeed more summary in their action than are the courts held under the Articles of war," and, as their powers are not defined by law, their proceedings — as heretofore indicated — will not be rendered illegal by the omis- sion of details required upon trials by courts-martial, such, for examj^le, as the administering of a specific oath to the members,"" or the affording the accused an opportunity of challenge.'" So, the record of a military commission will be legally sufficient though much more succinct than the form adopted by courts- martial, as — for example — where it omits to set forth the testimony, or states it only in substance. But, as a general rule, and as the only quite safe and satisfactory course for the rendering of justice to both parties, a military commission will — like a court-martial — permit and pass upon objections inter- posed to members, as indicated in the 88th Article of war, will formally arraign " See a case in 6. O. 85, Dept. of the Mo., 1865, of a person tried by this court for voting without the gualiflcations required by existing Orders. »G. O. 20, 190, 287, of 1847, (Gen. Scott;) G. O. 16, Dept. of the Mo., 1861; Do. 1, 18, Id., 1862 ; Do. 34, 56, Id., 1863 ; Do. 150, Dept. of the Ohio, 1863 ; Do. 27, Dept. of the Northwest, 1864 ; Do. 66, 72, Dept. of Va. & No. Ca., 1865. This rule was not always strictly observed, especially In cases of offences falling within the description of the present 45th and 46th (then 56th and 57th) Articles. » State V. Stillman, 7 Cold., 341 ; G. O. 1, Dept. of the Mo., 1862 ; Do. 197, Id., 1864 ; DIGEST, 507-8. *■ Of course a court designated as a "military commission" might legally be so invested by the commander, the mere name being immaterial ; but where no such specific authority is expressly given, a military commission so called is, by the invariable usage of the service, a criminal court only. " Finlason, Com. on Mar. Law, 130 ; G. O. 229 of 1863. « Finlason, Com. on Mar. Law, 9, 141 ; 1 Bishop, C. L. ; 45, 52 ; G. 0. 1, 7, Dept of the Mo., 1862 ; Do. 150, Dept. of the Ohio, 1863 ; Do. 27, Dept. of the N. West, 1864 ; Digest, 501. =» Hough, 3i83 ; Finlason, Com. on Mar. Law, 127. " In some cases Indeed proceedings and sentence have been declared inoperative because of this omission. See G. O. 91, 96, 101, 162, of 1863. They were In fact subject to disapproval but not inoperative. ^ See case in G. O. 257 of 1863, where the omission, as indicated by the record, of this and sundry other formalities was deemed sufficient to Invalidate the sentence In a capital case. It would more properly have been disapproved. 842 MILITARY LAW ANT) PRECEDENTS. the prisoner, allow the attendance of counsel, entertain special pleas If any are offered," receive aU the material evidence desired to be introduced," hear argument, find and sentence after adequate deliberation,* render to the con- vening authority a full authenticated record of Its proceedings, and, while in general even less technical than a court-martial, will ordinarily and properly be governed, upon all important questions, by the established rules and principles of law and evidence." Where essential, indeed, to a full investigation or to the doing of justice, these rules and principles will be liberally construed and applied. 1314 The Charge. In some cases the Charge has consisted merely of a designation of the offence unaccompanied by any specification: this, however, Is a rare form." In general a detailed specification is added pre- cisely as in the court-martial practice. The offence, where a civil crime, Is commonly designated in the charge by its legal name, as Murder, Manslaughter, Robbery, Larceny, &c. ; " where a violation of the laws of war, by simple terms of description — as Being a guerilla. Unauthorized Trading or Intercourse with the enemy, Eecruiting for the enemy within the U. S. lines. Violating a parole by a prisoner of war, &c., or simply Violation of the Laws of War, the speci- fication indicating the species of the violation. Where the offence is both a crime against society and a violation of the laws of war, the charge, in Its form, has not unfrequently represented both elements, as " Murder, in viola- tion of the laws of war," " Conspiracy, in violation," &c. The specification should properly set forth, not only the details of the act charged, but the circumstances conferring jurisdiction — as that a state of war existed, military government was exercised, or martial law prevailed, at the time and place of the offence : the status of the offender should also appear — aa that he was an officer or soldier of the enemy's army or otherwise a public enemy, or a prisoner of war, or an inhabitant of a place or district under military government or martial law or person there serving. It is not however essential to aver facts of which the court will take judicial notice. 1315 The Sentence. Except in the case of spies," the existing law makes no provision whatever in regard to the quality or quantity of the punish- ment to be adjudged by the military commission. The power of such a court to award sentence is thus practically without restriction. It is not limited to " Provided they are legally apposite. Thus a plea of the statute of limitations would not be, under the terms of Art. 103. "Dnder the general terms of Art. 91, depoHtions may be received by military com- misBloDS in the cases there Indicated. " A military commission may also, in a proper case,, punish as tor contempt. See Instances in G. O. 58, Dept. of Va. & No. Ca., 1864 ; G. C. M. O. 37, Fourth Mil. Dist., 1868. This, not by virtue of any statutory authority, but under its general province as a court administering the law of war. «• See Finlason, Com. on Mar. Law, 142 ; 3 Greenl. Ev. § 469 ; G. O. 33, Dept. of the Mo., 1862. " See case In G. O. 28, Dept. of the Gulf, 1865. A peculiar form of charge and procedure, in a case in G. O. 49, Sixteenth Army Corps, 1863, may be noticed here. The prosecution is in the nature of a proceeding i» rem, the accused being the " Steamboat W. W. Crawford, her officers and cargo," and the specifications setting forth a trading from Memphis to places within the enemy's lines, without authority and contrary to military orders. To this charge a person named pleads, in behalf of the steamboat, &e., " not guilty," and the commission, after a hear- ing, finds that the l>oat, her ofiicers and cargo, are not guilty, and directs that the said parties "be discharged, and released from all liabilities under their bonds." " " Treason " has sometimes been employed as a general form of charge, the specifica- tion indicating some treasonable act not necessarily constituting technical treason. See G. O. 1, 88, Dept. of the Mo., 1862 ; Do. 150, Dept. of the Ohio, 1863 ; Do. 27, Dept. of N. West, 1864. " Sec. 1343, Rev. Sta. MILITABY LAW AND PRECEDENTS. 843 the penalties known to the practice of courts-martial, nor indeed are the strictly military penalties, such as dismissal, dishonorable discharge, suspension, Ac, in general appropriate to it." The punishments more usually employed have been death, imprisonment and fine. De^th has commonly been by hanging." Imprisonment, (ordinarily with hard labor,) has been imposed for a term of months or years," (sometimes, and properly, assimilated to the term prescribed for similar ofEences by the local law,) for life, or during the war. In cases of men, the place designated for the imprisonment has usually been a penitentiary or a fort ; " in cases of women, during the late war, the place selected was, in the majority of Instances, the " Female Prison," at Fltchburg, Mass. ; " 1316 the labor required of women under sentence of imprisonment was not un- frequently — " working for the benefit of Union soldiers or prisoners." " Of the f,nes adjudged by military commissions during the late war, the largest were amounts of $90,000 '° and $250,000 " imposed respectively upon two agents of the Treasury Department, on conviction of a charge of conspiring to defraud the United States out of the value of captured cotton. In a few cases the fines have been directed In the sentence to be paid to individuals, by way of indemni- fication for money or property stolen or injuries suffered." In some other cases the accused has been required by the sentence to restore the specific money, or property, stolen ; " in others the amount of a fine, adjudged in favor of the in- jured party, is directed by the sentence to remain as a lien upon the real estate of the offender till paid ; *• in others, again. It is required to be levied on the real and personal property generally, or on certain particular property of the " See G. O. 20, Hdqrs. of Army, 1847 ; Do. 65, Dept. of Va. & No. Ca., 1865 ; Do. 29, Dept. of the South, 1870. Sentences of discharge or dismissal from oflce have, how- ever, been ad;jndged in some cases ; as in G. O. 308 of 1864, (a case of a lieutenant in the revenue service;) Do. 19, Dept. of N. Mex., 1862, (a citizen holding an office in the militia;) Do. 13, Dept. of Va. & No. Ca., 1864, (a case of a medical cadet.) A sentence of dishonorable discharge, imposed by a military commission in a case of a soldier convicted during the war of a crime under Art. 58, has been held authorized, by the Judge Advocate General. Digest, 508. In a case in G. O. 8, Dept. of Ala., 1866, an officer of the Treasury Dept. is sentenced to be disqualified to hold office under the United' States. ^ In the case of the anarchist Pallas, tried by a court-martial at Barcelona in Septem- ber, 1893, the sentence was — " to te shot with his back turned toward the firing party." "In G. O. 39, Northern Dept., 1864, is a case of Imprisonment for thirty years at hard labor. In a case of homicide in G. C. M. O. 276 of 1865, the sentence reads — " To be taken t» chains to the military prison at Camp Chase, near Columbus, Ohio, and to be kept at hard labor with ball and chain during the war." " In a few cases the commission imposes a confinement and then suspend it to en- able the accused to enlist. See G. O. 88, Dept. of the Mo., 1863 ; Do. 98, Id., 1864. ■" A " female prison " at Salem, Mass., was sometimes designated. G. O. 43, Middle Dept., 1864. In cases tried in New Orleans, hard labor in the " City workhouse," or " House of detention for females," was in some cases resorted to, (G. O. 55, Div. W. Miss., 1864; Do. 68, Dept. of the Gulf, 1865;) — in Norfolk, the Norfolk Jail, (Do. 102, Dept. of Va. & No. Ca., 1864: G. C. M. 0. 17, Dept. of Va. & No. Ca., 1865.) In the case in the Order last cited, (where the conviction was for " manslaughter,") the review- ing authority, (Gen. Butler,) in designating this Jail, adds— "If there is no female department there, she will begin one." "G. C. M. O. 206, 240, of 1864. In a case of a woman convicted of mall carrying through the lines and other offences, "proper labor, such as working or sewing for the (other) prisoners " at her place of confinement, was ordered. Q. O. 102, Dept, of Va. & No. Ca., 1864. " G. O. 55, Dept. of Ala., 1865. "Do. 8, Id., 1866. In both cases the commission further sentenced the party to be Imprisoned for one year, and thereafter till the fine was paid. " G. O. 27 of 1864 ; Q. C. M. O. 59 of 1866 ; G. 0. 80, Dept. of the Mo., 1863. « G. O. 7 of 1864 ; G. C. M. O. 360, Id. «G. O. 27 of 1864. 844 MHJTAEY LAW AND PRECEDENTS. offender ; * or It is directed tliat certain of lils property be seized and held as security for the payment of the fine and till the same is paid," or that the offender forfeit property to the amount of the fine." 1317 In a few instances the accused, besides being fined, Is adjudged to pay the " cost " of the prosecution ; ** in one case, with the fine, there is addej a further sum to cover both the costs of the trial and the " damages " sustained by the government.** In this connection may also be noticed sentences imposing forfeitures of rights — as the forfeiture of a license tosell liquor," or the forfeiture or prohibi- tion of the exercise of the right to sell fire-arms and amraunition,"^-penalties generally inflicted In combination with terms of imprisonment. A further distinct penalty not unfrequently adjudged by military commissions was confiscation of property. Thus, upon conviction of Illegally selling liquor to soldiers, there was sometimes Imposed, (with other punishment — as confine- ment,) a confiscation to the United States of all the liquor in possession of the accused." A similar penalty was often awarded upon a conviction of attempt- ing to smuggle through the lines, or of unlawfully trading in, medicines or other contraband articles." In this class of cases the team, wagon, or boat by which the supplies were transported, was commonly also confiscated." In some Instances the sentence was general, confiscating all the property, or all the real or all the personal property, of the offender." A further peculiar sen- tence of this class was that adjudged the proprietor of a newspaper by which information and encouragement had been conveyed to the enemy, viz. — 1318 " that the press, types, furniture and material of the printing office, be confiscated and sold for the use of the United States."" Another species of punishment often imposed was banishment or expulsion beyond the military lines and within the lines of the enemy," or outside of the '•G. O. 50, Dept. of the Mo., 1863; Do.' 25, 49, Id., 1864. And compare the action of the reviewing authority In G. O. 152 of 1865. So, in a case in G. O. 197, Dept. of the Mo., 1864, the amount of the penalty of a forfeited bond, (given for the performance of an oath of allegiance,) is directed to be satisfied from the real and personal estate of the accused and his sureties. •• Q. O. 31, Dept. of N. Mex., 1863. " G. O. 19, Dept. of N. Mex., 1862. « G. O. 9, 19, Dept. of the Miss., 1862. " G. 0. 31, Dept. of N. Mex., 1863. w G. C. M. O. 666 of 1865. And see Do. 109, Dept. of the Mo., 1864, where this pro- hibition is added by the reviewing authority, in a case of a second conviction of the offence of selling liquor without a license. " G. O. 135, Dept. of the Mo., 1864. =" G. O. 9, Dist. Kans., 1862 ; Do. 148, Dept. of the Mo., 1863 ; Do. 107, Middle Dept, 1865 ; Do. 54, Dept. of Va., 1865. " G. C. M. O. 377 of 1864 ; G. O. 103, Dept. of the Gulf, 1862 ; Do. 11, 12, 68, Id., 1865 ; Do. 49, 56, 66, 73, 92, 100, 151, 152, 154, Sixteenth Army Corps, 1863. And see also case in G. O. 72, Dept. of Ark., 1864, where, on conviction of appropriating public animals, the horses and mules taken from the accused were confiscated to the United States. » G. C. M. O. 334 of 1864 ; G. O. 49, Sixteenth Army Corps, 1863. » G. C. M. O. 151 of 1865 ; G. O. 14, 20, Western Dept., 1861 ; Do. 42, Dept. of the Mo., 1862; Do. 9, Dept. of the Miss., 1862; Do. 19, Dept. of N. Mex., 1862; Do. 29, Dept. of Va., 1863 ; Do. 179, Sixteenth Army Corps, 1863 ; Do. 58, Dept. of Va. & No. Ca., 1864. "G. O. 11, Dept. of the Miss., 1862. " G. O. 25, Army of the Potomac, 1863 ; Do. 29, Id., (a case of a correspondent of the New York Herald;) Do. 61, Middle Dept., 1863; Do. 63, Sixteenth Army Corps, 1863 ; Do. 37, 50, 56, 68, 74, Dept. of the Mo., 1863 ; Do. 132, Id., 1864 ; Do. 5, Dept. of the East, 1865. MILITABY LAW AND PRECEDENTS, 845 military department," or from or without the State," or to a particular locality — as to a "free State,'"" or "north of Philadelphia,"" or "north of the Ohio River," " or to a place "not south of New Jersey."" An offender claiming to be a British subject was sentenced to be banished from the United States."* Parties were also sentenced to remain during the war within the limits of a certain county." In some cases they were required to remain in the place to which they were condemned to be sent, under penalty ot being shot," or im- prisoned," if they left it or returned. In others the sentence required that they be paroled to remain within the limits- fixed ; " and in others also to give bond to keep such parole." 1319 A further and frequent sentence was to fwnish a bond with ap- proved security in a certain penal sum for the future good behaviour or loyal conduct of the offender. This penalty was usually required as a condi- tion to release from military custody, either after a term of imprisonment ad- judged by the same sentence, or In connection with fine, or as a sole punish- ment." With the requirement of the bond is often combined one to the effect that the accused take an oath of allegiance to the United States ; the form of the sentence generally being that he b6 confined, or not released, till he take the oath and give the bond." Again, where bond and oath are both enjoined, the bond is sometimes required to be given for the faithful performance of the oath." A sentence to take an oath of allegiance merely, i. e. without the condition that the accused be not released, or be confined, till he take it, has been dis- approved as an inadvisable sentence, . because, if he refuses, he cannot be forced to take it, or, if he be forced, the oath wiU not be obligatory," » G. C. M. O. 54, Dept. of Va., 1865 ; G. O. 14, 17, Dept. of the Tenn., 1863 ; Do. 73, Dept. of the Mo., 1864. ^ G. O. 11, Dept. of the Miss., 1862 ; Do. 148, Dept. of the Mo., 1863. In a case In Do. 72, Dept. of W. Ta., 1864, the accused is acquitted but the court recommended that he be required to leave the State. •» G. O. 56, Dept. of the Mo., 1864. « G. O. 62, Middle Dept., 1864. •• G. O. 87, Dept. of the Ohio, 1864. •» G. O. 43, Middle Dept., 1864. " G. O. 73, Sixteenth Army Corps, 1863. » 6. O. 49, 143, 148, 149, Dept. of the Mo., 1S63 ; Do. 61, Northern Dept., 1864. " G. O. 63, Sixteenth^ Army Corps, 1863. " G. O. 61, Middle Dept., 1863 ; Do. 56, Dept. of the Mo., 1863 ; Do. 14, 17, Dept. of the Tenn., 1863 ; Do. 87, Dept. of the Ohio, 1864. •* G. O. 37, 49, 143, 148, 149, Dept. of the Mo., 1863 ; Do. 43, Middle Dept., 1864. " G. O. 49, Dept. of the Mo., 1863 ; Do. 62, Middle Dept., 1864. In a case In Do. 86, Dept. of the Mo., 1864, the sentence Is to take an oath of allegiance and give bond for good behavior, and on failing to do so to be removed from the State. "See cases in G. O. 9, Dept. of the Miss., 1862; Do. 38, 50, 74, 80, 117, 119, 143, 148, 149, Dept. of the Mo., 1863 ; Do. 9, 11, 81, 83, 86, 98, 103, 118, 118, 131, 135, 144, 194, Id., 1864 ; Do. 49, Sixteenth Army Corps, 1863 ; Do. 38, Dept. of the Tenn., 1863 ; Do. 50, Middle Dept., 1863; Do. 39, Dept. of Kans., 1864. Even in acquitting, the Commission has sometimes directed or recommended that the accused, before being released, be required to give such bond. " See G. O. 86, Dept. of the Ohio, 1863 ; Do. 38, Dept. of the Tenn., 1863 ; Do. 34, 68, Dept. of the Mo., 1863 ; Do. 6, Id., 1865. In a case in Do. 86, Id., 1864, the require- ment is that he take the oath and give the bond, or be removed from the State. " See 6. O. 23, 38, 40, Dept. of the Mo., 1863. In Do. 37, Id., a bond is required for the faithful performance both of the oath and of a parole, also required of the ac- cused, to remain at his residence during the continuance of the war. Oath and parol* are sometimes required without any bond. Do. 23, Id. " G. O. 43, Middle Dept., 1864. 846 mHjItaby law and pebcbdbnts. ACTION BT THE REVIEWING AUTHORITY. The action authorized to be taken by reviewing officers upon the proceedings and sentences of military commissions is distinguished from that which may legally be taken upon the records of courts-martial, in the wider and more varied exercise of authority permitted in the former case. Thus, in disapproving, remitting, &c., findings or sentences of military commissions, the comma-nder has frequently di- 1320 rected the release of the accused upon his entering into a bond with sufficient sureties for his good behaviour or loyal conduct in the future and in some cases also taking an oath of allegiance; or the accused has been required to take the oath and give bond for its faithful performance." Bonds, oaths, or bond and oath, have even been ordered where the accused has been acquitted." In passing, upon convictions, or even acquittals, it has also sometimes been ordered by the commander, in remitting the sentences or disapproving, (or even approving,) the proceedings, that the accused, on being released, be sent "beyond the lines, south," or to some particular locality at the north, under penalty-— it is occasionally added — of imprisonment, &c., if he returns, or leaves the appointed place, during the war. In some instances, his release is made conditional upon his residing or remaining at the place Indicated. In other cases the deportation Is ordered in the event of his failing to take an oath or give a bond — either or both — required by the sentence." Again a re- mission is granted on condition of the payment by the accused of a certain sum;" or, (where he may properly be enlisted and desires to enlist,) upon his enlisting as a soldier in our army." 1321 ACTION BY JUDICIAL AUTHORITY. In conclusion it may be remarked that, as in the case of the judgment of a court-martial," and as held by the Supreme Court in Ex parte Vallandigham," the proceedings or sentences of military commissions are not subject as such to be appealed from to, or to be directly revised by, any civil tribunal. VII. MILITARY AUTHORITY AND JURISDICTION UNDER THE RBOON- STRUCTION ACTS OF 1867. To complete the general subject under consideration, it will be proper to give some account of the military government administered during the Reconstruc- tion period of 1867-1870. "G. C. M. 0. 156, 203, 251, 254, 256, 270, of 1865; G. O. 19, Dept. of the Miss., 1862; Do. 56, Sixteenth Army Corps, 1863; Do. 7, 15, 38, 50, 56, 60, 74, Dept. of the Mo., 1863 ; Do. 27, 88, 89, 97, 98, 104, 113, 115, 117, 118, 127, 131, 160, 172, 186, 194, 202, 268, Id., 1864. The amnesty oath, as contained in the President's proclamation of Dec. 8, 1863, Is sometimes Indicated Instead of an oath of allegiance. 6. C. M. O. 151 of 1865 ; G. O. 154, Dept. of the Mo., 1864. " See G. O. 57, Dept. of Arlt., 1864, also G. O. of Dept. of the Mo., of 1864, cited in last note. "In the case of Vallandlgham, (G. O. 68, Dept. of the Ohio, 1863,) the sentence of confinement in a fortress during the war was commuted by his being put beyond our military lines, under penalty of being arrested and confined according to his sentence in case of his return wltMn the lines. In a case in G. O. 4, Dept. of the Mo., 1865, the accused is ordered to be released on taking the oath of allegiance, and on condition that he " reside In the free States north of the Ohio river, and east of the Illinois Central Railroad, not to return to Missouri duting the war under pain of being Imprisoned at hard labor." And see Do. 7, Id., 1863 ; Do. 11, 14, Id., 1865 ; Do. 14, Dept. of the Tenn., 1863 ; Do. 72, Dept of W. Va., 1864 ; Do. 102, Dept. of Va. & So. Ca., 1864 ; Do. 149, Dept. of the Gulf, 1864 ; Do. 34, Dept. of Washington, 1865. "As In the case of Mrs. Sarah Hntchlns, (G. O. 115, Middle Dept., 1864.) " G. 0. 98, 144, Dept. of the Mo., 1864. And see the sentence Iji Do. 88, Id., 1863. "The Bubifect of the judicial revisioit of. the pzoeeedlngs of eoiirts-maitlal has been fnl^ considered In Vol. I, Chapter TE, - -a. ' "1 WHlBCe, 243. '; MILITARY LAW AND PRECEDENTS. 847 THE IiEaAL SITTJATION. The active hostilities Incident upon the war of the rebellion having substantially ceased, the President, in the spring and summer of 1865, appointed, (as has heretofore been noticed,") provisional gov- ernors for the insurrectionary States, and in 1866 proclaimed the yrar to be at an end. Congress was at that time in political antagonism to the President, and the question whether the proclamations of 1866 were constitutionally authorized — ^whether Congress rather than the President was not the power to declare the status belli to be terminated — was considerably disputed. The position that the action of the President was not competent to and did not put an end to suclt status was ably sustained in an opinion of Attorney General Hoar," (hereafter to be referred to as relating to the legality of a certain trial by military commission under the Reconstruction Acts,) in which It was well argued that Congress, being invested by the Constitution with the power to declare war and suppress insurrection, was alone empowered to determine when the rebellion should be considered as finally suppressed, and the 1322 pre-existing normal condition restored." This argument applied with special force to an insurrection of such magnitude as to have amounted to a civil war, and In which the insurgents had come to be treated as belligerents. But a further claim, and one subsequently supported by the Supreme Court was, that, under the injunction of the Constitution, (Art. IV, Sec. 4,) that — " The United States shall guarantee to every State in this Union a republican form of government," Congress was both authorized and required to provide, by appropriate legislation, for the restoration of the States to their normal political relations, and by such action to terminate, in law and in fact, the status of insurrection. The ruling referred to of the Supreme Court was that made in 1868, In the leading case of Texas v. White." It was there held that " the power to carry into effect the clause of guaranty is primarily a legislative power and resides in Congress ; " that while the President was authorized, during the contimuance of the war, to Institute temporary governments in the insurgent States, such governments could be but provisional only; and that It devolved upon Con- gress, after having provided for the suppression of active rebellion, to take " Ante, Title IV — ^Militaet Govbknmdnt. •»13 Oplns., 59. "And It was urged that the Act of March 2, 1867, (presently to be cited,) waa a legislative declaration by Congress that the war status was not terminated. Compare Perkins v. Rogers, 35 Ind., 124. « 7 Wallace, 701. And see Rawle on the Const., 299 ; Cooley, Prins., 197 ; Do., note to 2 Story, 106. In a later case — Raymond v. Thomas, 91 U. S., 712, relating to the eserclae of power under the reconstruction laws by a District Commander, the Supreme Court say — " The national Constitution gives to Congress the power, among others, to declare war and suppress insurrection. The latter power is not limited to victories and the dispersion of the insurgent forces. It carries with it Inherently rightful authority to guard against an immediate renewal of the conflict, and to remedy the evils growing out of its rise and progress." (Citing Stewart v. Kabn, 11 Wallace, 506.) "The close of the war was followed by the period of reconstruction and the laws enacted by Congress with a view to that result." In the case of Shorter v. Cobb, 39 Ga., 290-297, It is well said by Brown, C. J., as follows — " When the Government succeeded in our subjugation and became a conquering power. It acquired the legal right to dictate the terms upon which the conquered States should be restored to position in the Union. And the conquered States had no appeal from the decision and no alternative but submission to the terms dictated." At the end of the war — " it became the duty of Congress, in whom not only the war power but the power to admit new States Is vested by the Constitution, to Interpose ai^d re-establish and guarantee to the State a republican form of Government. • • • The recon- struction of the Government is a great political problem to be solved by the law-making power of the United States. 848 MHJTABY LAW AND PRECEDENTS. 1323 measures for the substitution of republican governments in harmony with the Union ie the place of the revolutionary ones which had been imposed upon the States. THE LEGISLATION BESOBTED TO. Proceedings upon such or like views of its constitutional powers," Congress, on March 2, 1867, enacted the first of the Reconstruction Laws, entitled " An Act to provide for the more efficient government of the rebel States," and expressed as follows : — " Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Caro- lina, Georgia, Mississippi, Alahama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should he enforced in said States until loyal and republican St«te governments can be legally estab- lished: Tlierefore " Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That said rebel States shall be divided into military districts and made subject to the military authority of the United States as herevtuifter prescribed; and for that purpose Virginia shall constitute the first district; North Carolina and South Carolina the second district; Georgia, Altibama and Florida the third district; Mississippi and Arkansas the fourth district; arid Louisiana and Texas the fifth district. " Sec. 2. And be It further enacted. That it shall be the duty of the President to assign to the command of each of said districts an officer of the army not be- low the rank of brigadier general, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority within the district to which he is assigned. " Skc. 3. And be it further enacted. That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and prop- erty, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals, and to tMs end he may allow local civU tribunals to take jurisdiction of and to try offenders, or, when in his judgment it may be necessary for the trial of offenders, Tie shall have power to organize military commissions or tribunals for 1324 that purpose, and all interference, under color of State authority, mth the exercise of military authority under this act, shall be null ahd void. " S«c. 4. And be it further enacted. That aU persons put under military arrest by virtue of this act shall be tried roithout unnecessary delay, and no cruel or unusual punishment shall be inflieted; and no sentence of any military commission or tribunal hereby authorized, affecting the life or liberty of any person, shall be executed until it is approved by the officer in command of the district, and the laws and regulations for the government of the army shall not be affected by this act, except in so far as they conflict with its provisions: Provided, That no sentence of death, under the provisions of this act, shall be carried into effect without the approval of the President. " Sec. 5. And be it further enacted. That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a conven- tion of delegates elected by the male citizens of said State twenty-one years old and upward, of whatever race, color, or previous condition, who have been reMAent in said State for one year previous to the day of such election, except such as may be disfranchised for participation to the rebellion, or for felony at common law; and when such constitution shall provide that the elective fran- chise shall be enjoyed by all such persons as have the qu&Ufications herein " Sm Debates In 39th and 40tb Congregses, Cong. Globe, 1860-1867. MILITARY LAW AND PRECEDENTS. 849 stated for electors of delegates; and when such coHstitution shall he ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates; and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same; and when said State, by a vote of its legislature elected under said Constitution, shall have adopted the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen; " and when said article shall have become a part of the Con- stitution of the United States, said State shall be declared entitled to 1325 representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law; and then and thereafter the preceding sections of this act shall be inoperative in said State: Provided, That no person excluded from the privilege of holding offlce by said proposed amendment to the Constitution of the United States shall be eligible to election as a member of the convention to frame a constitu- tion for any of said rebel States, nor shall any such person vote for members of such convention. " Sec. 6. And be it further enacted, That until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil government which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any offlce under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the fifth section of this act; and no person shall be eligible to any offlce under any such provisional governments who would be disqualified from- holding offlce under the provisions of the third article of said constitutional amendment." A second Act followed, on Marcli 23, 1867, which related merely to the regis- tration of voters, election of delegates to the constitutional conventions, pro- cedure of the conventions, submission of the constitutions to the popular vote, action by Congress upon the result, &c., — and need not be cited in this con- nection. Upon the passage of the first Act, assignments were forthwith made, by the President," of general officers as commanders of the five military districts, and these officers at once entered upon the exercise of their commands. Some of these commanders having proceeded to exercise powers deemed by the President to be of questionable legality, the Attorney General, (Stanberry,) was called upon for an opinion as to the. extent of their authority. In his opinion, of June 12, 1867," he held in substance that, hostilities having ceased, an Act conferring military authority over civilians was to be 1326 strictly construed ; that the authority of the district commanders under the Act was restricted to measures for the suppression of violence and disorder and the protection of life and property, in other words was a police power merely, and did not extend to the exercise of civil government ; that the commanders were not empowered to remove or appoint civil officers, abrogate or modify civil laws or ordinances, or interfere with the course of civil justice " The Fifteenth Amendment, proposed to the legislatures of the several States by Congress in February, 1869, .was also required to be ratified by the insurgent States not admitted prior to that date, to wit by Virginia, Georgia, Mississippi and Texas, as a condition to their admission to representation. ■' By 6. O. 10 of March 11, 1867. " 12 Oplns., 182. It need hardly be remarked that the Attorney Genpral was of the same political party as the President, and represented similar views on the general subject of Reconstruction. 440593 0-42-94 850 MILITARY LAW AND PKECEDENTS. except In criminal cases ; and that In such cases they could properly supersede the civil jurisdiction by the institution of military tribunals only in extreme emergencies. To the jurisdiction of these tribunals limitations were indicated which will be adverted to hereafter. In view mainly of this opinion,'' Congress, on July 19th following, pro- 1327 ceeded to enact a third " supplementary " statute," by which full power and discretion to remove and appoint civil officers in the insurrectionary States within their commands were expressly vested in the' district commanders, (and in the General of the Army,) and* it was declared that the existing State " Chief Justice Chase, in his Address to the Bar at Raleigh, in June, 1867, had meanwhile remarked, in reference to the Reconstruction legislation of March, that, under it, military authority existed " only to prevent illegal violence to persons and property, and facilitate the restoration of States." ""The only portions of the Act which are material In this connection, (the rest relating to qualifications of voters, boards of registration, &c.,) are Sees. 1, 2, 3, 4, 10, and 11, as follows : — " Be it enacted by the Senate and House of Repre.sentafives of the United States of America In Congress assembled. That it is herebu declared to have heen the true intent and meaning of the act of the second day of March, one thouawnd eight hundred and aixty-aeven, entitled 'An act to provide for the more efficient government of the rebel States/ and 'of the a^t supplementary thereto, passed on the twenty-third day of March, in the year one thousand eight hundred and sitsty-seven, that the governments then existing in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, were not legal State governments; and that thereafter said governments, if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress. " Sac. 2. And be it further enacted. That the commander of any district named in said act shall have power, subject to the disapproval of the General of the army of the United States, and to have effect till disapproved, whenever in the opinion of such commander the proper administration of said act shall require it, to suspend or remove from office, or from the performance of official duties and the exercise of official powers, any officer or person holding or exercising, or professing to hold or exercise, any civil or military office or duty in such district under any power, election, appointment, or authority derived from, or granted by, or claimed under, any so- called State or the government thereof, or amy municipal or other division thereof; and upon such suspension or removal such commander, subject to the disapproval of the General as aforesaid, shall have power to provide from time to time for the performance of the said duties of such officer or person so suspended or renn)ved, by the detail of some competent officer or soldier of the army, or by the appointment of some other person, to perform the same, and to fill vacancies occasioned by death, resignation, or otherwixe. " Sue. 3. And be it further enacted. That the General of the army of the United States shall be invested with all the powers of suspension, removal, appointment, and detail granted in the preceding section to district commanders. " Shc. 4. And be It further enacted, That the acts of the officers of the army already done in removing, in said districts, persons exercising the functions of civil officers, and appointing others in their stead, are hereby confirmed: Provided, That any person heretofore or hereafter appointed by any district commander to exercise the functions of any civil office, may be removed either by the military officer in command of the district, or by the General of the army. And it shall be the duty of such commander to remove from office as aforesaid all persons who are disloyal to the government of the United States, or who use their official influence in any manner to hinder, delay, prevent, or obstruct the due and proper admvnistration of this act and the acts to which it is supplementary. ••••••• " £IEC. 10. And be it further enacted. That no district commander or member of the board of registration, or any of the officers or appointees acting under them, shall be bound in his action by any opinion of any civil officer of the United States. " Shc. 11. And be it further enacted. That all the provisions of this act and of the acts to which this is supplementary sliall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out," MILITARY LAW AND PKECEDENTS. 851 governments should, during their continuance, remain " subject in all respects " to the authority of such commanders and of Congress."' THE ACTS AS PASSED UPON BY THE COTTBTS. The " Recon- 1328 structlon Laws," thus enacted," continued to be executed to the date — ■ July, 1870 — of the admission to representation in Congress of the last of the insurrectionary States, being In general sustained as valid" legislation by the judiciary. In Texas v. White," above cited, it was held, by the Supreme Court, of these laws generally that they were enacted by Congress in the exerclee of a constitutional power ; and in Mississippi v. Johnson," and Georgia v. Stanton," the same Court refused to enjoin the President and Secretary bt War respectively from carrying such laws into effect, on the ground that the power and duty conferred and imposed thereby were purely executive and political in their nature. In the greater part of the cases adjudicated in the States affected by the Acts in question, a most liberal view — a view in some instances perhaps even too liberal — was taken of the authority thereby conveyed. Thus, in a case in Louisiana, the court say of these statutes that they " seem to clothe the com- manders of districts with a paramount supervisory power over the civil juris- diction of these States, and a controlling influence over all the administrative functions and powers of State officials."" In a case in Texas, the Supreme Court, in recognizing the " binding force " of the Reconstruction Acts, ob- serve : " The orders jfrom time to time issued by the military commander 1329 had the force and validity of law." " In Arkansas, the court, in sus- taining the authority of the district commander to arrest and Imprison a citizen, declare that his "imprisonment had the same force and effect as if he had been confined upon a proper warrant from a civil judicial tribunal."" In a further " Of this body of legislation it is remarked by the Supreme Cpurt of Texas, In Johnson v. State, 33 Texas, 570, as follows : — -" The national legislature used its legiti- mate powers with moderation and magnanimity ; endeavoring to encourage the formation of republican governments In these States, and bring the people back to a due apprecia- tion of law, and of the liberty which Is secured to the free enjoyment of every citizen under the Constitution of the United States." "They were all passed over the veto of the President. Vol. 14, Stats, at Large, 429, 430 ; Do. 15, Id., 4, 5, 16. And see Cooley, note to 2 Story, 649-653. As to the validity and effect of this legislation, enacted in opposition to the Executive, see the recent case of Daniel -o. Hutcheson, 86 Texas, 51, post. The later supplementary enactments, of which the principal was that of March 11, 1888, relating to elections, were of inferior importance and need not be quoted. " 7 Wallace, 730-731. " The power of the United States Government to Impose such a rule upon the State must be recognized as fully, under the facts existing, as though Texas had theretofore been an independent soyereignty having no relation to the United States other than that usually sustained by one independent nation to another." Daniel V. Hutcheson, ante. •*i Wallace, 415. ■"8 Wallace, 50. "State V. Heath, 20 La. An., 518. In the minority opinion in Welborn ». Mayrant, presently to be noticed, it is forcibly remarked, that under the Reconstruction Acts " the military commander was the source of power, _authorIty and law. ♦ • • He could annul the constitution or code in whole or In part, or he could make law by his military flat, as he did. • » • This military authority reached to every corner and hamlet In the State. * • » There was in fact, in Mississippi, from 1865 to 1870, a pure, undisguised, absolute military government." " Gates o. Johnson Co., 36 Texas 145-8. So, in Ex parte Warren, 31 Texas, 143, it was held that, under the Act of July 19, 1867, making the State governments " subject in all respects " to the district commanders, the commander of the 5th district was legally empowered to order that no distinction of color be made by the courts In the ad- mission of witnesses. "Belding V. State, 25 Ark., 315. 852 MILITARY LAW AND PRECEDENTS. case In Texas," it is remarked of the district commanders that " they exercised legislative power, and this power was as full, ample and complete as if exercised by a senate and house of representatives." In other cases a more strict construction was given to the powers of the District Commanders. Thus where one of these Commanders, in 1868, issued an order not merely suspending but wholly annulling a decree of a court of chancery of South Carolina, " regularly made by a competent judicial officer in a plain case clearly within his jurisdiction, and where there was no pretence of any unfairness, of any purpose to wrong or oppress, or of any indiscretion whatsoever," — his action was held by the Supreme Court ^°° to have been void, as not warranted under the " large governmental powers " given by the Recon- struction Acts. " It was," adds the Court, " an arbitrary stretch of authority, needful tp no good end that can be imagined. * * ♦ It is an unbending rule of law that the exercise of militarj- power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires." In another case, in a U. S. District Court,^ it was held that such a Commander was not empowered to place a person in possession of a plantation held under a claim of title by another, in other words that he could not " assume to ad- minister remedial justice betMveen citizens." In a further case, in North 1330 Carolina," it was observed by the C6urt — " The power conferred " (by the Reconstruction Acts) " aimed mainly at the preservation of the public peace, the repression of hostility to the re-established federal authority, and the protection of persons and property in their ordinary and legitimate pursuits. It was not intended that the quiet and regular execution of the laws in force, not hostile to the policy of the general government, should be obstructed by military interference, and still less that laws should be promulgated and en- forced in the administration of internal civil government;" And it was held that an order of Gen. Canby, (commanding the 2d Military District,) " that judg- ments for the payment of money rendered in North Carolina between 1861 and 1865 should not be enforced by execution against the person or property of the defendant," was unauthorized and inoperative — except as it could be effectu- ated by military force. So, in a case in Mississippi,' it was held that the District Commander exceeded his authority in setting aside the decision of a board of arbitrators by which a colored man was believed to have been unjustly deprived of his property. TERM OF THE ATJTHOBITT CONFEBREB. The term of continuance and authority of the military government established by the Reconstruction Acts was subject to be fixed by the United States only. As above observed, this government in fact subsisted in each State until the same was admitted by Congress to representation, in accordance with the l^slation of 1867, and •"McClelland v. Shelby Co., 32 Texas, 20. And see Jobnson v. State, 33 Id., 580; Grant v. Chambers, 34 Id., 573. "» Raymond v. Thomas, 99 U. S., 715. 'Whalen u. Sheridan, 17 Blatchford, 9. But this ruling, (which is very briefly re- ported,) was made with reference to the proTlsIons of the Act of March 2, 1867, only; those of the Act of July 19 not being talten into consideration. ' Tarner ». Arnold, 83 No. Ca., 208. •Welborn v. Mayrant, 48 Miss., 652. In the report no reasons are given for this ruling, but the counter opinion of the minority of the court is set forth at length. See post. In a further case, State v. McLane, 31 Texas, 260, it was held that "a lieutenant of a subdivision of the fifth military district had no right to order a judge to dismiss a prosecution for felony pending in court." This conclusion may have been determined by the fact that the order was given not by the district commander but by a subordinate : it is not however placed in terms on this ground. The case arose prior to the enactment of July 19, 1867. MILITARY LAW AND PRECEDENTS. 853 thus to constitutional relations with the United States. " It was not," as re- marked In a recent case, " for the people " of any State " to determine when military rule should cease, or to what extent the administration of essentially civil affairs should be continued by military power. These were questions for the decision of the dominant power holding .military possession. * * • 1331 The United States had the power to determine when the political relations formerly existing should be restored, and when the provisional govern- ment should cease, and the several departments of the State government be- come operative under the Constitution." * MILITARY COMMISSIONS UNDEB THE B,ECOWSTB,XICTION ACTS — Their legal authority and province. The statutory provisions relating to military commissions, as authorized during the period of Reconstruction, were those contained in sees. 3 and 4 of the Act of March 2, 1887, above set forth, empowering the district commanders, when necessary to justice, to order such commissions for the trial of criminals and offenders against public peace and order; and requiring that trials be had without unnecessary delay, that cruel or unusual punishments be not inflicted, and that death sentences be not exe- cuted without the approval of the President. From these provisions the province of military commissions at this juncture Is seen to have been mainly to serve as suhstitutes for the local courts' In cases where, in the opinion of the commander, — for the statute invested him with the sole discretion In the matter,' — a resort to the military jurisdiction was essential to the due administration of justice. In a few instances offences were passed upon by military commissions which would regularly have been tried by J7. S. courts had there been any in operation ; ' but no violations Of the laws of v/ar, such as are brought to trial before commissions In time of war, were referred to these tribunals at this period. In the majority of 1332 cases indeed crimes and disorders, where without political significance, were allowed to be disposed of by the State judiciary." The trials by military commission under the Reconstruction Laws were in all not much over two hundred In number." Their jurisdiction. This, while impugned in general terms by the opinion of Atty. Gen. Stanbery above cited," was sustained by the later opinion of • Daniel v. Hutcheson, 86 Texas, 62, 64. • See Digest, 506-7. In this view it was ordered in the Second District, (G! O. 18 o{ 1868,) that the military courts convened therein be " governed by the rules of evi- dence prescribed by the laws of the State In which the case Is tried." " In the case of Weaver, the district commander was moved to the exercise of such discretion by a State judge, by whom he was requested to have the accused tried by a military court on the ground that justice could not " probably " be administered by the courts of the State. 13 Oplns. At. Gen., 60-1. ' But offences against the laws of the U. S. were not triable by military commission In districts in which the D. S. courts were exercising their usual functions. Diqbst, 507 ; G. O. 164, Second Mil. Dlst., 1867 ; Do. 12, Fourth Id., 1867. And see address of Chase, C. J., to the bar of Raleigh, June 6, 1867. 'Thus it was announced In the First District, (G. O. 24 of 1868,) that it was the purpose of the Commanding General — " not to Interfere with the operation of the State laws as administered by the civil tribunals, except where the remedies thereby afforded are inadequate to secure to individuals substantial Justice." So, in G. O. 10, Third Mil. Dlst., 1868, it is said — " The Commanding General desires it to be under- stood that the trial and punishment of criminals is to be left to the civil authorities, so long as the said authorities are energetic, active, and do jusice to the rights of person and property without distinction of race or color." And see Do. 1, 40, Fifth Id., 1867. •At some of these trials, however, a considerable number of accused were joined In the same charge and proceedings. Thus 23 were joined In the case published in G. O. 175, Fifth Mil. Dlst, 1869. >''12 Oplns., 198, 199. 854 MILITARY LAW AND PRECEDENTS. Atty. Gen. Hoar In the case of Weaver sentenced to death for murder," as well as, in efEect, by the rulings of the courts above cited which upheld the authority exercised by the district commanders as a form of legitimate mili- tary government. In the first indeed of the opinions indicated, the extent of such jurisdiction was properly held to be limited to offences committed after the passage of the original Act ; " and in a case in the Second District, of a citizen brought to trial and sentenced by a military commission convened under such Act, for a crime committed in 1864, the proceedings were disap- proved as illegal, and the prisoner was committed to the civil authorities." On the other hand, as it was also properly held, such a commission could not be resorted to for the trial of offences after the State in which the same were committed had been admitted to representation in Congress." The time 1333 and scope of the jurisdiction were thus conterminous with the period of the operation of the Reconstruction Acts. As to persons, the jurisdiction of the commission, while mainly exercised over civilians," was sometimes extended to cases of soldiers where their offences were such as would have been triable by the State (or U. S.) courts if in operation. As to offences, those taken cognizance of by military commissions at this period were: — first and principally, crimes and disorders made punishable by the local or common law, such as murder," manslaughter, robbery, larceny, riot," " lynching," " criminal conspiracy," assault with intent to kill,^ assault and battery," burglary," obtaining money under false representations," " 13 Opins., 59. In this case, the opinion — that the commission was a legally authorized tribunal and its sentence a valid judgment — was adopted b; the President, and the sentence was approved. See G. C. M. O. 41 of 1869. "12 Qpins., 200. "G. O. 125, Second Mil. Dist, 1867. " Digest, 507. And see case, in G. O. 12, Dept. of the South, 1868, of the alleged murderers of Geo. W. Ashburn. In the First Mil. Dist., upon the passage of the Act admitting Virginia to representation, it was ordered, (by G. O. 9 of January 27, 1870,) as follows : "All citizens who may'bc held by military authority for trial, either in custody or upon bail, for acts in violation of the above cited laws," (i. e.. Recon- struction Acts,) " will be released from custody or discharged of their bail bonds and the military prosecution dismissed. All citizens, held by military authority for trial for crimes or offences cognizable under the laws of the provisional government of the State of Virginia, will be turned over to the custody of the proper civil authorities of the county or corporation in which the crime or ofCence was committed." '* Trials of women were very few compared to the number of those tried during active hostilities. See cases in G. O. 130, Second Mil. Dlst., 1868 ; 6. C. M. O. 8, Fourth Id., 1868. '» See cases in G. C. M. O. 41 of 1869, (James Weaver ;) G. O., 118, Second Mil. Dist., 1867, (Wm. J. Tolar and others;) Do. 58, 140, Id., 1868; Do. 96, Third Id., 1868; G. C. M. O. 20, 31, Fourth Id., 1867 ; Do. 1, 23, Id., 1868 ; Do. 46, S9, Id., 1869 ; G. O. 25, 38, Fifth Id., 1868; Do. 107, 153, 175, 211, Id., 1869; Do. 14, 27, (Chas. Green and others,) 33, 41, 53, 62, Id., 1870. " " G. O. 134, Second Mil. Dist., 1868 ; Do. 72, Third Id., 1868 ; G. C. M. O. 24, Fourth Id., 1867i >»G. O. 72, Third Mil. Dist., 1868, (Wm. Pettlgrew and twelve others.) "G. C. M. 0. 34, Fourth Mil. Dist., 1868; G. O. 175, Fifth Id., 1869, (an alleged con- spiracy of 23 persons to oppose the execution of the Reconstruction laws, resist the military authority, &c.) "G. C. M. O. 6, 13, 17, Fourth Mil. Dist., 1867; Do. 14, 37, Id., 1868; G. O. 17, Fifth Id., 1868 ; Do. 181, Id., 1869 ; Do. 26, Id., 1870. " G. O. 41, 69, 75, Second Mil. Dist., 1867 ; G. C. M. O. 27, Fourth Id., 1867 ; G. O 205, Fifth Id., 1869 ; Do. 3, Id., 1870. "G. C. M. O. 6, Fourth Mil. Dist., 1867. " G. O. 8, First Mil. Dist., 1868 ; Do. 7, Id., 1870 ; Do. 41, Second Id., 1867 : Q. C. M. 0. 14, Fourth Id., 1868. MILITABY LAW AND PRECEDENTS. 855 13S4 false imprisonment, malicious mischief," breach of the peace and dis- orderly conduct," embezzlement," and malfeasance In office ; " second, acts made punishable by U. S. statute, as purchasing arms, clothing, &c., from soldiers,*" forgery of checks on the Treasury," stealing public property," &c., ; third, breaches of military orders regulating the selling of liquor to soldiers, forbidding the carrying of concealed weapons," securing rights to colored persons, &c.'" Sentence. The punishments imposed by the sentences of these commissions were in general of the same nature as those assigned by the laws of the State, (or United States,) In similar cases, vim. death, Imprisonment for life or for a term of years or months, and fine. The imprisonment was executed in a peni- tentiary, a county jail, or at a military post such as the Dry Tortugus, Ship Island, or Fort Macon. In one case" — of assault and battery on a colored girl — a fine imposed by the sentence was directed by the same to be paid to the Injured party. In another case a justice of the peace was sentenced to be removed from offloe for taking part in the whipping of a colored person." In cases 1335 of soldiers, convicted of criminal offences, punishments of a strictly mili- tary character, such as dishonorable discharge and forfeiture of pay, were in general disapproved." OTHEB TBIBTTNALS. The first of the reconstruction laws authorized district commanders in proper cases " to organize military commissions or tribunals, and the commissions above described were not in fact the only courts Instituted under the laws; others also being employed for the disposi- tion of petty offences and the regulation of the Internal economy of the commands. Thus, the District Commanders, especially in the Second and Fifth Districts, resorted also to courts designated as "Post Courts," ordered by the post commanders, or consisting of the post commanders themselves, as police mag- istrates." In the First, Second and Fifth Districts, the district commanders, either directly or through the post commanders, appointed officers of their commands as Military Commissioners, who were clothed, severally, with the powers of justices of the peace and police judges, and directed to act where the similar "G. O. 68, Second Mil. Dist., 1868. >" G. O. 161, Second Mil. Dist., 1867, (obstructing a railroad ;) G. C. M. O. 10, Fourth Id., 1867, (Interference with registration ;) Do. 26, Id., 1867, (" Insulting the D. S. flag ; ") 6. O. 234, Fifth Id., 1869, (breaking into* a jail and releasing a prisoner.) "G. O. 3, 15, First Mil. Dist., 1870, (by a aheriff, of money collected for taxes, &c.) •»G. O. 96, Third Mil. Dist., 1868, (by a deputy sherlfC;) Do. 50, Id., 1868; (by an agent of the Freedmen's Bureau;) G. C. M. O. 5, Fourth Id., 1868, (ditto.) » G. O. 94, Third Mil. Dist., 1867 ; G. C. M. 0. 6, Fourth Id., 1867 ; G. O. 212, Fifth Id., 1869. » G. C. M. O. 14, Fourth Mil. Dist,, 1868. "G. O..90, First Mil. Dist., 1868. " G. O. 102, 122, Second Mil. Dist., 1867 ; Do. 27, Id., 1868 ; Do. 95, Third Id., 1867. "G. O. 74, Second Mil. Dist., 1867, (violation of an order of the dist. commander. In refusing to give a flrst-class ticket on a coast steamer to a colored woman ;) Do. 94, Third Id., 1867, (do. in subjecting a colored man to a punishment — lashes — different from that prescribed for whites.) " G. O. 41, Second Mil. Dist., 1867. "G. O. 75, Second Mil. Dist., 1867. But in a case in Do. 50, Third Id., 1868, a punishment of dismissal, imposed, (with fine and imprisonment,) upon an agent of tho Freedmen's Bureau, was disapproved as of questionable authority. •• G. C. M. 0. 5, Fourth Mil. Dist., 1868 ; G. O. 153, Fifth Id., 1869. " G. O. 25, Second Mil. Dist.. 1867 ; Do. 4, Fifth Id., 1869. 856 MIL.ITAKY LAW AND PRECEDENTS. Civil functionaries failed or were unable to administer due justice." Other special powers and duties were also devolved upon these officials; such, for example, as taking charge of Indigent persons,'" taking measures to prevent combinations against the reconstruction laws," bringing to trial and punish- ment persons charged with denying rights to colored people," (the courts or- dered in such cases being sometimes designated as "Freedmen's Courts,") persons refusing to work on the roads, bridges," &c., persons accused of 1336 Intimidating voters," offenders against the regulations for the registration of voters," &c. ; with other duties pertaining to elections and the ap- pointment and Qualifying of civil officers;" as also authority to suspend sales under mortgage and stay executions," to adjudge qui tarn penalties," to tax costs and legal fees as in civil cases, and to admit to bail." Special courts, (of three members,) designated as Military Tribunals, were also constituted at posts in the Second District with authority to pass upon offences growing out of the Illegal sale, manufacture, &c., of spirituous liquors, and the offence of carrying concealed weapons.* In some of the Districts the old Provost Court was continued with a limited jurisdiction similar to that of the Post Courts above mentioned." In the Fourth District a Board of Arbitra- tion was established for the equitable adjustment of the claims of laborers upon the crops of 1867." EXERCISE OF CIVIL AUTHORITY UNDER THE RECONSTRUCTION ACTS. The Act of March 2, 1867, as has been seen, authorized the district commanders " to protect all persons in their rights of person and property," and, In declaring that the existing governments of the insurgent States were not legal, added that " all Interference under color of State authority with the exercise of military authority under this Act shall be null and void." The Supplemental Act of July 19, 1867, specifically empowered the district com- manders to suspend or remove any civil officials and appoint other persons in their stead, (making it a special duty to remove those obstructing the execution of these Acts, ) and confirmed removals and appointments made 1337 before its date. It also, as has been remarked, declared that the pro- visional State governments were, while they subsisted, " to be continued subject in all respects to the military commanders of the respective districts and to the paramount authority of Congress." It further provided that " all the provisions " of the several Reconstruction Acts " shall be construed liberally to the end that all the intents thereof may be fully and perfectly carried out." " G. O. 31, First Mil. Dlst., 1867 ; Do. 65, Id'., 1869 ; Do. 61, Second Id., 1868 ; Do. 4, Fifth Id., 1869. See instructions for their govevament in Do. 43, First Id., 1869. " G. O. 51, First Mil. Dist., 1867. "G. O. 61, Second Mil. Dist., 1868. « Q. O. 74, 75, Second Mil. Dist., 1867. « G. O. 95, Second Mil. Dist., 1867. " 6. 0. 68, First Mil. Dlst., 1867 ; Do. 61, Id., 1869 ; Do. 65, Second Id.. 1867. " G. O. 65, Second Mil. Dist., 1867. « Circ. 13, First Mil. Dist., 1867 ; Do., Aug. 12, Id., 1869 ; G. O. 38, Id., 1868 ; Do. 70, Id., 1809. « G. O. 20, 149, First Mil. Dlst., 1868. " G. O. 17, Fifth Mil. Dist., 1869. " Circ. 7, First Mil. Dist., 1867 ; G. O. 105, Second Id., 1867 ; Do. 4, 7, 17, Fifth Id., 1869 ; In the G. O. referred to of the Second Dist., the aifiount of the ball bond Is made a lien on the personal property of the principal and his sureties. « Circ, May 15 and July. 17, Second Mil. Dist., 1867 ; G. O. 25, 32, Id., 1867 ; Do. 29, Id., 1868. *"A special jurisdiction for the settlement of disputes between employers and em- ployees as to their rights under military orders is devolved upon this court in Q. O. 18, Second Mil. Dlst., 1868. I" Circ. 22, 24, Fourth Mil. Dist., 1867. MILITARY LAW AND PRECEDENTS. 857 Under the broad authority thus expressly and by Implication conveyed, (the scope of which was recognized in the rulings of the courts heretofore cited,) many radical acts of civil government, both executive and legislative in their nature, were initiated by the military orders of the district commanders. Among these may be noted the following: — The removal and appointment of civil officers. This power was exercised in sundry cases of important oflficials; as, for example, those of Governor," Secretary of State,"" and ^ Auditor,"" of Virginia; of Governor, Treasurer, Sec- retary of State and Comptroller of Georgia ; " of Governor and Attorney General of Mississippi ; " of Governor, Lieutenant Governor, Secretary of State " and Attorney General " of Louisiana ; and of Governor " and Speaker of the House of Representatives ■"" of Texas. It was further exercised in the cases of several State and many county and city judges," and in manifold instances of 1338 mayors, aldermen, sheriffs, county clerks, justices of the peace, coroners, constables, school commissioners, and other minor municipal officers." Supervision of the police and maintenance of law and order. The po- lice and constabulary of cities, towns and counties were placed under the im- mediate direction of the post commanders or military commissioners,"' and in the Second District were also required to report to and obey the orders of the Provost Marshal General of the District."' Post commanders (and com- missioners) were authorized to summon civil officials and citizens generally to aid them in the execution of their orders, and a neglect or refusal to render the required assistance was made a misdemeanor punishable by fine and im- prisonment to be adjudged by a military court."* Assemblages of armed organi- zations were forbidden,"" masked and disguised persons were directed to be arrested," and the carrying of deadly weapons was prohibited." On special occasions such as that of a riot at Mobile in 1867, and of the assassination, at » G. O. 36, First Mil. Dist., 1868. " S. O. 68, First Mil. Dist., 1869. A military -oflacer, Capt. G. Mallery, was appointed. " S. O. 67, First Mil. Dist., 1869. Major T. H. Stanton was appointed. ■* G. O. 8, 12, 17, Tliird Mil. Dist., 1868. The civil incumbents were removed for "declining to respect the instructions of the Dist. Commander, and failing to acknowl- edge his authority or cooperate wItB him." Gen. T. H. Ruger was appointed Governor, Capt. C. F. Bockwell Treasurer, and Capt. C. Wheaton Secretary and Comptroller. «G. O. 23, Fourth Mil. Dist., 1868. Gen. A. Ames and Capt. J. Myers were ap- pointed in the stead of the civil incumbents removed. M S. O. 62, 192, Fifth Mil. Dist., 1867 ; Do. 143, Id., 1868. The appointees were civilians. " 6. O. 5, Fifth Mil. Dist., 1867. » S. O. 105, Fifth Mil. Dist., 1867. " G. O. 21, 23, Fifth Mil. Dist, 1870. "See the following Special Orders removing, suspending and appointing Judicial officers : S. O. 124, First Mil. Dist., 1867 ; Do. 102, 117, (appointing Major H. B. Burnham Judge of the Supreme Court of Virginia,) Id., 1869; Do. 168, 183, 241, Second Mil Dist., 1867; Do. 20, 69, Id., 1869; Do. 9, 125, 126, 164, 190, 238, Third Mil Dist 1867; Do. 13, 14, 41, 42, 59, 75, 83, 110, 112, Id., 1868; Do. 125, 126, 216 Fourth Mil. Dist, 1867; Do. 38, 39, 229, Id., 1868; Do. Ill, 184, 191,. 201, 204, 207, Fifth Mil. Dist., 1867; Do. 14, 16, 18, 44, 48, 62, 89, 95, 103, 120, 131, 148, 156, Id., 1868. See Daniel v. Hutcheson, 86 Texas, 51, where is recognized as de jure a county court appointed by a military commander. " See the Special Orders of the several Military Districts, posstm. The term of office of these appointees was limited by the period of the military government under the Reconstruction acts. Stone v. Wetmore, 44 Ga., 495. " G. O. 65, First Mil. Dist., 1869 ; Do. 12, Second Id., 1867 ; Do. 4, 5, Fifth Id., 1869. " G. O. 34, Second Mil. Dist., 1867. « 6. O. 32, Second Mil. Dist., 1867. «>G. O. 58, Third Mil. Dist., 1868; Do. 28, Fourth Id., 1867. •« G. O. 15, Fifth Mil. Dist., 1868. "G. O. 10, Seeond Mil. Distst.. 1867 ; Do. 58, Third Id., 1868; Do. 38, Fourth Id.. 1867. 858 MILITABY LAW AND PRECEDENTS. Columbus, Georgia, In 1868, of a member of the Constitutional-Convention, orders were Issued for the more effectual suppression of disorder and violence, news- papers and public speakers were enjoined not to indulge in inflammatory 1339 language, the writing of threatening letters was denounced, &e." In such and other " cases the civil authorities were required to co-operate with the military in the keeping of the peace and the arrest of offenders. On the other hand the military were ordered to assist the civil authorities where necessary — as in the suppression of vagrancy," and in the collection of taxes when resisted by violence." Such precautions were further taken as to provide that a sheriff's posse should not be limited to persons of his own political party," and that, where freed persons were to be arrested the posse should In general be composed of persons of the same race or color." Provision for the poor and the colored people, and regulation of labor. The proceeds Of licenses, forfeitures and fines were devoted to the poor; or the local authorities were required to provide for them through the proper taxes, &c., the cooperation of the military being directed:" special provision was also made for the support and comfort of the indigent and Insane at asy- lums and penitentiaries." No discrimination was allowed to be made against colored paupers," nor against colored persons as to admission Into public Institutions," subsistence in prisons," rights in public conveyances," the selec- tion of jurors," the payment of poll tax or penalties," or generally as to the administration of justice of the enjoyment of the benefits intended to be secured by the Act of Congress, for the protection of persons In their civil 1340 rights, of April 9, 1866." The freedmen were duly Instructed as to the procedure of registration and voting," and protected from intimida- tion and interference on the part of their employers and others." The same validity and effect were required to be given to parol contracts between white and colored as to contracts between whites," and provision was made that colored laborers should not be defrauded out of the just wages of their labor." In the Second District post commanders were authorized to enforce the per- formance of labor by the citizens on the roads and bridges," or to require them when expedient to serve as roadmasters and overseers." In the Third District work on the highways was authorized to be exacted as a punishment for minor offences." » G. 0. 25, Third Mil. Dist., 1867 ; Do. 51, Id., 1868. •• See also G. O. 42, Third Mil. Dist., 1868 ; Clrc, Fourth Id., July 29, 1867. " G. O. 23, Fourth Mil. Dist., 1867. " G. 0. 77, Third Mil. Dist., 1867. " G: O. 7, Fifth Mil. Dist., 18C9. " 6. O. 23, Fourth' Mil. Dist., 1867. » G. O. 51, First Mil. Dist., 1867 ; Do. 164, Second Id., 1867'; Circ, Id., June 17, 1887 ; G. O. 53, Id., 1868. " See G. O. 136, First Mil. Dist., 1869. '" G. O. 31, Third Mil. Dist., 1868 ; Do. 25, Fourth Id., 1867. " G. 0. 31, Third Mil. Dist., 1868. " 6. O. 44, Third Mil. Dist., 1868. »»G. O. 32, Second Mil. Dist., 1867 " G. O. 53, 55, Third Mil. Dist., 1867 ; Do. 32, Fourth Id., 1869. » G. O. 15, 25, Fourth Mil. Dist., 1867. "G. O. 4, Third Mil. Dist., 1867. " G. O. 5, 61, Fourth Mil. Dist., 1867 ; Do. 61, Second Id., 1868.. "G. O. 61, Second Mil. Dist., 1868; Do. S7, 58, Third Id., 1868; Do. 16, 55, Fourth Id., 1867. "6. O. 134, Second Mil. Dist, 1867. " G. O. 19, Fourth Mil. Dist., 1867. "G. O. 95, Second Mil. Dist., 1867. » G. O. 117, Second Mil. Dist, 1867, •• G. O. 69, Third Mil. Dist, 1868. MILITARY LAW AND PRECEDENTS. 859 Imposition, &c., of taxes and granting of licenses. In several Instances the District Commanders exercised the power of levying taxes," -and in others they remitted or suspended the collection of taxes deemed unauthorized or oppressive," or reduced taxes as too heavy, extended the time for their pay- ment, or granted exemptions from the same." The granting of licenses for the sal« of liquor, &c., and the application of the moneys received therefor, v^ere also subjects regulated by military order." Prohibitions and directions as to judicial and legal proceedings. 1341 The civil courts were, In repeated cases, prohibited from entertaining suits or prosecutions against military persons on account of acts done under military orders," (as also against citizens who could not have a fair trial because of their adherence to the Union during the war ; " and from discharg- ing, on habeas corpus, persons who were held in military custody for the reason that they could not be fairly tried by the civil tribunals." Sales of land, crops, or other property, upon execution or foreclosure of mortgage, or under- deeds of trust, as also suits on judgments, were suspended where unreasonable sacrifice and oppression would result." In some Instances . rules as to juris- diction and procedure were prescribed to the courts," and directions were Issued as to the quallfyihg of their clerks," the qualifications and drawing of jurors,'" &c.' Exercise of legislative power — ^Making, Unmaking and modifying statute law. The legislative power pertaining to the military government ' was mani- fested by such acts of the district commanders as — enacting a formal statute " to punish obstruction of railroads," which, among other things, prescribed the death penalty for one of the forms of offence enumerated ; " " annulling " 1342 or " rescinding " a provision of a State law Imposing a poll tax, and sub- stituting another ; * extending an appropriation Act so as to make it apply to a further fiscal year ; ' construing so as to extend, modifying, of sus- pending, statutes relating to tenancies, stay of executions, recovery of .debts, — . f ■ "As, In G. O. 139, Second Mil. Dlst., 1867, a tax for the support ot the proTlsional goyernment of South Carolina ; and. In Do. 41, Fifth Id., 69, a special county tax as a provision for the more efficient administration of justice. •> 6. O. 92, Second Mil. Dist., 1867 ; Do. 232, 235, Fifth Id., 1869. " G. O. 81, 102, Second Mil. Dlst., 1868 ; Circ, Id., Oct. 9, 1867 ; G. O. 28, Fourth Id., 1869. See also many cases of staying, &c., the collection of taxes, in the Special Orders of the different Districts. »• 6. 0. 59, First Mil. Dist, 1869 ; Do. 32, 164, Second Id., 1867 ; Circ. Id., June 17, 1867 ; G. 0. 39, Fourth Id., 1867. « 6. 0. 134, Second Mil. Dlst., 1867 ; Do. 45, Third Id., 1867 ; Do. 7, Id., 1868. •• G. O. 134, Second Mil. Dist., 1867 ; Do. 25, Fourth Id., 1867. "G. O. 10, Third Mil. Dlst, 1868. "6. O. 10, 164, Second Mil. Dist, 1867; Do. 14, 63, Id., 1868; Do. 95, Third Id., 1868 ; Do. 12, 25, Fourth Id., 1867. The Special Orders ot the Districts contain also constant and numerous directions as to staying, suspending, dismissing, di^pproving, annulling and confirming of proceedings, judgments, &c., in the civil courts. •• G. O. 46, 97, First Mil. Dist., 1869 ; Do. 11, 81, Second Id., 1868 ; Do. 22, Fifth Id., 1870. "G. O. 46, First Mil. Dlst, 1869. "» 6. O. 89, 100, Second Mil. Dist., 1867 ; Do. 11, Id., 1868 ; Do, 53, Third Id., 1867. »A further Order, of the First Dist., (G. 0. 71 of 1867,) directed the Supreme Court of Virginia to hold a special session on a day named. In G. O. 53, Second Mil. Dlst., 1868, the civil courts of North and South Carolina were invested with jurisdiction of cases of ' selling liquor in violation not only of local police regulations but of military orders. ' As to the extent of this power, see citation from McClelland v. Shelby Co., 32 Texas, 20, ante. "G. O. 120, Second Mil. Dist, 1867. * G. O. 164, Second Mil. Dist., 1867 ; Do. 28, Fourth Id., 1869. •Q. O. 6, First Mil. Dlst., 1870. 860 MHJTAKY LAW AND PRECEDENTS. taxation, education, apprentices, granting of. licenses, pilotage, shipping of lildes, amnesty for offences,' &e. in an Order of the First District,' all civil oflScers, corporations, &c., in Virginia, required by law to make report to the legislature at its annual session, are required to make the same to the district commander. In an Order of the Second District,' — the most remarkable instance in our history of the exercise of legislative authority by a military commander, — "im- prisonment for debt is prohibited " except in cases of fraud ; certain money judgments are forbidden to be " enforced by execution against the 'property or the person of the defendant;"* the sale of property on execution or fore- closure is suspended for one year ; " all proceedings for the recovery of money under contracts, whether under seal or by parol, the consideration for which was the purchase of negroes, are suspended;" wages for labor performed in the production of a crop is made a lien on the crop ; a " homestead exemption " is created ; bail is done away with in actions ex contractu: " the punishment of crimes and offences by whipping, maiming, branding, stocks, pillory, or 1343 other corporal punishment," " Is discontinued ; the punishment of death in cases of burglary and larceny, as authorized by State laws, is abolished, and graded penalties of fine and imprisonment are prescribed for such of- fences; the power of reprieve, pardon and remission is given to the Governors of North and South Carolina ; and imprisonment for overdue taxes is inhibited. The Order concludes as follows : — " Any law or ordinance, heretofore in force in North or South Carolina, inconsistent with the provisions of this General Order, is hereby suspended and declared inoperative." " In an Order of the next month," made by the same commander, " the remedy by distress for rent is abolished." As another Instance of legislative action may be noted the fact that, in ap- proving and ordering into effect, as they repeatedly did, the ordinances of the constitutional conventions, the district commanders In some cases excepted certain provisions, and in others substituted or added provisions of their own." •G. O. 149, First Mil. Dlat., 1868; Do. 59, 80, Id., 1869; Do. 134, 164, Second Id., 1867 ; Do. 11, Id., 1868 ; Do. 17, 68, 139, Fifth Id., 1869, 'G. 0. 7 of 1869. " G. O. 10 of 1867. •These are judgments on causes of action arising between Dec. 19, 1860, and May 16, 1865. It is added : — " Proceedings In such causes of action, now pending, shall be stayed ; and no suit or process shall be hereafter Instituted or commenced, for any such causes of action." "> See the prior act of Congress, of March 2, 1867, c. 170, s. 5, in which it is made the duty of officers of the army, &c., "to prohibit and prevent vihipplng or maiming of the person, as a punishment for any crime, misdemeanor, or offence," in " any State lately in rebellion," and not yet readmitted to representation in Congress. It was held in State v. Kent, 65 No. Ca., 311, that this Order could have no further effect than \o suspend the existing law as to corporal punishment ; the law reviving as soon as, with the discontinuance of the military government, the Order ceased to have effect. " It was mainly with reference to this Order that Atty. Gen. Stanbery, in his opinion heretofore cited, said — " He," the (Dist. Commander,) " assumes, directly or indirectly, all the authority of the State, legislative, executive and judicial, and In effect de- clares — ' I am the State.' " The order was in fact an anticipation of the enactment of the following July, which completed the powers of the military government, and, in doing so, added the injunction that " no district commander shall be bound, in his action by any opinion of any civil officer of the United States." G. O. 10 was materially modified as to some of Its provisions by G. O. 164 of the same year, issued by a subsequent commander of the district. » G. O. 32 of 1867. "G. O. 57. Second Mil. Dist., 1868; Do. 18, 24, 29, Third Id., 1868; Do. 10, Fourth Id.. 1868. MILITARY LAW AND PRECEDENTS. 861 Appropriations from tie State treasuries. In lieu of legislatures, the dls- Irlct commanders not unfrequently exercised the power of appropriating moneys for the support of the civil governments of the States within their commands," as also for the repairs and maintenance of asylums, penitentiaries, and other public institutions." 1344 Quarantine and sanitary regulations. Careful and detailed quar- qptine regulations were issued by the different commanders," and, in the Fourth District, sanitary regulations for the season of epidemics of 186T." Miscellaneous matters. To the acts and orders of the district commanders above enumerated may be added the following :— The prohibition of " the dis- tillation or manufacture of whiskey or other spirits from grain ; " " The in- validating of contracts for the manufacture, sale, &c., of intoxicating liquor ; " The suspension of elections of officers of railroad companies in which any of the States constituting the district possessed an interest;" the making special provision for the arrest and trial of persons guilty of horse-stealing;'" The making provision for the enrollment of the inhabitants of the State, (Texas,) as a force for defence against hostile Indians.^ DUTIES AS TO ELECTIONS, REGISTBATION, &c. The remaining or- ders of the district commanders were chiefly those issued in the performance of the duties devolved upon them by the Acts of March 23 and July 19, 1867, March 11, 1868, and April 10, 1869, with reference to the elections and pro- ceedings thereby prescribed. These orders constituted and appointed boards of registration and superintendents or commissioners of election, and instructed them as to their duties ; provided for due registrations of the qualified voters and revisions of the registry lists; directed elections of delegates to the con- stitutional conventions, and notified those elected to assemble and act; sub- mitted the constitutions when framed to the popular vote, and at the same time ordered the elections for State officers and members of Congress; 1345 regulated by precise and detailed directions the conduct of such elections, so as to secure a full expression and ensure a fair ballot ; " announced " See, for example, G. O. 118, 122, First Mil. Dist., 1869 ; Do. 6, Id., 1870 ; Do. 139, Second Id., 1867; Do. 18, Fifth Id., 3 869; Do. 6, Id., 1870. »G. O. 58, 122, 136, First Mil. Dist., 1869. Other appropriations for such institu- tions, as also for the expenses of State Conventions, are contained in the Special Orders, " G. 0. 42, First Mil. Dist., 1867 ; Do. 39, Id., 1868 ; Do. 75, Id., 1869 ; Do. 3, Second Id., 1867 ; Do. 64, Id., 1868 ; Do. 5, Fourth Id., 1867 ; Do. 23, 34, Fifth Id., 1868 ; Do. 104, Id., 1869. " G. O. 8, Fourth Mil. Dist., 1867. " G. O. 25, Second Mil. Dist., 1867. [Revoked by a subsequent district commander In Do. 164, Id.] See also Do. 12, Fourth Id., 1867. »G. O. 32, Second Mil. Dist, 1867. [Revoked In Do. 164, Id.] "G. O. 84, Second Mil. Dist., 1868. » G. O. 9, Fourth Mil. Dist., 1867 ; Do. 3, Id., 1868. '''G. O. 75, Fifth Mil. Dist., 1869. "To instance some of these regulations — bar-rooms and the like were required to be closed on the day of election and for some time before and after ; the use or exhibi- tion of flre-arms or dangerous weapons at or near the voting places was prohibited ; facilities were afforded for challenging Votes ; the intimidation, directly or indirectly, of voters was guarded against; military interference, unless necessary to repel the armed enemies of the United States or to keep the peace at the polls," (In accordance with the provision of the Act of Congress of Feb. 25, 1865,) was strictly forbidden ; and other precautions were taken against possible fraud or violence. See G. O. 61, First Mil. Dist., 1869; Do. 164, Second Id., 1867; Do. 40, 45, 61, Id., 1868; Circ, Id., March 24, 1868; G. O. 74, Third Id., 1867; Do. 57, 58. Id., 1868; Do. 19, Fourth Id., 1868; Do. 55, Id., 1869 ; S. O. 40, Fifth Id., 1869. In one order, it was directed that no voter should be compelled to work on the public roads, or to attend court as a suitor, juror, or witness, on the day of election, or be subject to arrest on civil process, &c. Do. 61, 862 MlUTABY LAW AND PBECEDENTS. the results of ,the votings ; "* determined the eligibility, In case of question, of persons elected ; directed the administering, to cItU officers elect, of the oath of office prescribed by Congress ; turned over to the new governments the appro- priate, records, public property and powers, and otherwise facilitated their organization. These orders, many of which Involved io their preparation a most careful consideration and great labor, well illustrate the value of the services of the District Commanders in cooperating to bring about the political rehabilitation of the insurgent States. Such were some of the more salient features of the procedure of Recon- struction. So far as concerns the military government exercised' during these three critical years, — Its efforts to secure an Impartial and faithful administra- tion of justice, repress violence and disorder, maintain an efficient police, con- serve the public health, relieve the burdens of the unfortunate, protect the 1346 humble classes against unequal laws and oppressive usages, and, while earnestly promoting the restoration of the States, to worthily assert the "paramount authority" of the United States, niiist; It is believed, fairly out- weigh, in the estimate of history, the unfreqiient manifestations of arbitrary power on the part of individual officials. First Id., 1869. It was further ordered that ,where a fair vote was prevented by violence, a new election should be held. Do. 6X, Second Id., 1868.' And it was enjoined that where Injuries were InStcted upon persons registering in good faith, the damages should be assessed upon the town or county. Do. 66, Second Id., 1867. "* One of these orders, for example — G. O. 19, Fifth Mil. Dlst., 1870, — contained tabular ■tatements of the votings In Texas, covering forty-ieven pages. Part m.— CIVIL PTTWCTIONS AKD REIATIONS OF THE MIHTART. 1347 In Past I have been considered the law and discipline governing the military In the military state ; In Past II has been reviewed the special authority exercised by them, in time of war or like emergency, towards enemies and persons under military government or control. In this third and last divi- sion of this treatise will be examined the subject of their cwil relations and duties as officers and soldiers, and the liabilities, as well as rights, attaching to them as citizens. Part III will be presented under the following Titles : — I. Employment of the military In a civil or quasi civil capacity. II. Liability of tiie military to civil suit or prosecution. III. Other civil relations of the military. I. EMPLOYMENT OF THE MILITARY IN A CIVIL OB QUASI CIVIL CAPACITY. 1. Fob the Protection of a State from Domestic Violence. Sec. 4 of Art. IV of the Constitution declares that : — " The Vnited States shall guarantee to every State in this Union a republican form of government, and shall protect each of them, (against invasion, and,) on the application of the legislature, or of the executive when the legislature camnot he convened, agdinst domestic violence." As observed by the U. S. Supreme Court in 1348 Luther v. Borden,' "it rested with Congress to determine the means proper to be adopted to fulfill this guarantee." So, presently after the adoption of the Constitution, by the Act of Feb. 28, 1795, the President was empowered to call forth the militia, and later, by that of March 3, 1807, to employ the land and naval forces, for the purposes signified.' In Part II it has been seen how the Supreme Court, in Texas v. White,' justified the action of Congress in providing, in view of this constitutional guarantee, for the " reconstruction " of the insurrectionary States by the legislation of 1867. Under the section cited, the protection of th« United States has, in practice, commonly been invoked by governors of States,* in emergencies arising when the legislatures are not in session or cannot be assembled soon enough to take the requisite action.' The protection sought is afforded by the President, by order- ing a sufficient military force to the disturbed locality with the proper in- structions for the repression of the existing violence. No military commander or authority inferior to the President can assume to Initiate such orders. The troops are not furnished to the governor as a posse, nor can they legally be placed under his command or that of any other State official, civil or military. Though employed in a quasi civil capacity and for a local and temporary » 7 Howard, 42. "These statutes are embraced In See. 5297, Rev. Sts. And see therewith Sec. 5300. •7 Wallace, 730. •The constitutional provision does not apply to cases o£ domestic violence In Terri- tories. Digest, 161-2. • 8 Oplns. At. Gen., 8. 863 864 MILITARY LAW AND PRECEDENTS. object, they are still. U. S. troops, representing the sovereignty of the United States, and can duly act only under the command and direction of the Presi- dent and their own ofBcers.' As their purpose, however, is to aid in the execu- tion of the lavFS and the restoration of the peace of the State, their action should in general, as far as practicable, be in concert with the action or views of the State authorities.' While they should of course move and operate with promptitude and efficiency, no more military power than is reasonably 1349 required should be resorted to, nor the disorderly element be treated like an enemy in war unless the emergency is such as to demand extreme measures: often a demonstration in force will be sufficient without resort to arms. It was held by Attorney General Gushing, in the California Vigilance Com- mittee Case,' that a mere "obstruction of law " was not enough to base a requisition upon the President for troops, but that a state of " domestic war " should practically exist to authorize it. This is a strained view, with which the practice has not accorded. " Domestic violence " is not necessarily war or even such a condition as to call for the exercise of martial law. Domestic vio- lence considerably less pronounced than that of the Dorr rebellion, for example, will, it is considered, justify an appeal for military aid, by the authorities of a State, under the Constitution. 2. Fob the Suppression of Insukebction and the Execution of the Laws OF the United States. By Sees. 5297-5299, Title LXIX, Rev. Sts., the President, whenever, in his judg- ment, it becomes necessary, is further expressly authorized to employ the army, (as also the. militia and the navy,) for the suppression of insurrection or rebellion against the Government and the execution of the laws of the United States; as also, specially, for the purpose of maintaining the civil rights of the people of the States, when divested by violent combinations or conspiracies against the laws of the State or of the United States.* Under, these Sections, the assistance of the military may be resorted to in any instance of such insurrection or lawless combination, from an isolated case of riotous obstruction to a rebellion of the magnitude of the recent civil war. In the instance of a rebellion of this character the army would assume a purely mili- tary and hostile attitude as against an enemy, and the law applicable to the situation would be the law of war or martial law treated of in Part II. In cases of lesser disorders the army would be employed more in a quasi civil capacity, as a force to keep the public peace, and similarly as when used to suppress " domestic violence " under the provision of the Constitutiop 1350 heretofore considered ; its operations being conducted exclusively -under the orders and directions of the President and its immediate commanders." The " laws of the United States," the " faithful execution " of which the army may properly be employed to enforce under Sec. 5298, Rev. Sts., would ' See Q. O. 15, of 1894, quoted under the next head ; alao par. 490, A. R. of 1895. ' Sec, in this connection, an interesting pamphlet by Col. B. Otis, 20th Infantry, en- titled " The Army in connection with the Labor Riots of 1877." " 8 Opins., 14-15. • See 16 Opins. At. Gen., 162 ; 17 Id., 242, 333. 10 The view of the author, as expressed here and on the preceding pages, as to the command and disposition of the U. S. military in the contingencies indicated has been adopted in the following recent order, (G. O. 15 of May 25, 3 894,) issued by the Major General Commanding the Army : — • " The following instructions are issued for the government of department commanders : " Whenever the troops may be lawfully employed, under the orders of the President, ta snppresB ' insurrection In any State, against the government thereof,' as provided MILITARY LAW AND PRECEDENTS. 865 probably be mainly such laws as those which relate to the conduct of the federal elections, the government and protection of the Indians, the regulation of immigra- tion, the protection of the public lands from unlawful intrusion or settlement, the collection of taxes or excises, the transportation of the mails, the regula- tion of commerce, the observance of neutrality and rights of neutrals. And with such laws are to be classed treaties recognizing rights of foreigners in this country, &c. On the occasion of the recent strike, of July, 1894, It was mainly for the execution of Sec. 3995, Rev. Sts., prohibiting the obstructing and retarding of the due carriage of the mails on the railways, and incidentally of the provisions of the Act of July 2, 1890, c. 647, " to protect trade and com"- merce against unlawful restraints," &c., that the national forces were employed by the President." 1351 The active interposition of the military under Sections 5297-5299, Rev. Sts., Is required by Sec. 5300 to be preceded by a proclamation of the President commanding " the insurgents to disperse and retire peaceably to their respective abodes within a limited time." " In practice the term " in- surgents " has been treated as including all persons unlawfully combining, conspiring, &c., as indicated in Sees. 5298 and 5299. In most cases the publica- tion of the proclamation In connection with an array or mobilization of troops will do away with the necessity of a resort to force." in section 5297 of the Revised Statutes ; or to ' enforce the execution of the laws of the United States,' when ' by reason of unlawful obstruction, combinations, or assem- blages of persons ' It has ' become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States,' as provided in section 5298 of the Revised Statutes, the troops are employed as a part of the military power of the United States, and act under the orders of the President as Commander-in-Chief and his military subordinates. They cannot be directed to act under the orders of any civil officer. The commanding officers of the troops so employed are directly responsible to their military superiors. Any unlawful or unauthorized act on their part would not be excusable on the ground of any order or request received by them from a marshal or any other civil officer." " See G. O., H. Q. A., of July 24, 1894. See this subject as presented in par. 487, A. R. of 1895. '^ The more recent instances of the proceeding required by Sec. 5300 are those of the proclamations of May 22, 1873, (as to dirorders in Louisiana;) of May 15, 1874, (aa to Arltansas;) of Sept. 15, 1874, (Louisiana;) of Dec. 21, 1874, (Mississippi;) of Oct. 17, 1876, (South Carolina;) of Oct. 7, 1878, (New Mexico;) of May 3, 1882, (Arizona;) of July 31, 1884, (as to the irruption of persons into the Oklahoma lands in the Indian Territory ;) of Nov. 7, 1885, (as to violence and dirorders in Washington Territory, directed against the Chinese population;) of Feb. 9, 1886, (as to unlawful obstructions and combinations at Seattle and elsewhere in the same Territory;) and of July 16, 1892, (on the occasion of the Coeur d' Aleue riots in Idaho.) "Here may be noted the recent order — G. O. 23 of July 9, 1894 — issued from the Headquarters of the .'i^rmy, on the occasion of the employment, under Sec. 5298, of the federal military in the suppression of the unlawful obstructions and combinations conse- quent upon the strike above mentioned, as follows ; — "The following instructions are published for the government of the Army: A mob, forcibly resisting or obstructing the execution of the laws of the United States, or attempting to destroy property belonging to or under the protection of the United States, is a public enemy. Troops called into action against such a mob are governed by the general regulations of the Army and military tactics in respect to the manner in which they shall act to accomplish the desired end. It is purely a tactical question in what manner they shall use the weapons with which they are armed-^whether by the Are of musketry and artillery or by use of the bayonet and saber, or by both, and at what stage of the opera- tions each or either mode of attack shall be employed. This tactical question must neocssarily be decided by the immediate commander of the troops, according to his best judgment of the situation and the authorized drill regulations. In the first stage of an insurrection, lawleSS mobs are frequently commingled with great crowds of comparatively innocent people, drawn there by curiosity and excitement, 440593 0-42-55 866 MtLITAEY LAW AND PRECEDENTS. 3. As A Posse Comitatus. 1362 FBACTIC£ UNDER ACT OF 1789. It was provided In s. 27 of the Judiciary Act of Sept. 24, 1789," tliat the marshal appointed for a judicial district " shall have power to command ali necessary assistance in the exeou- tion-of his imty." This provision was at an early period construed as vesting, fyy implication, in U. S. marshals and their deputies an authority to call upon the military forces of the United States as a posse to assist them in the execu- tion of the process of the TJ. S. courts," and this authority was resorted to In numerous cases where without it the laws would have failed to be efEectually or iJromptly enforced. Instructions were repeatedly issued from the Attorney General's Office and the War Department, and by military commanders, as to the right- of marshals to require the assistance of the military in cases of neces- sity, as to the duty of the military to obey their requisitions, and as to the behaviour of the latter when serving on a posse. It was enjoined that officers and soldiers so serving should act in subordination to and as directed by the sOarslial in making arrests, &c., but should use only such force as was neces- sary and apposite to the object, and should confine themselves strictly to the duties attaching to the special service, initiating no proceeding and assuming no authority beyond the same. But while thus cooperating with and acting under the civil official, the inferiors of the detachment were to observe the principle of military subordination and obey the orders of their immediate military superiors, as on occasions of purely military duty." 1353 limitation of power to summon. The power to summon the military on a posse comitatus, under the Act of 1789, was limited to the marshal or his deputy. No other U. S. civil functionary, — as an officer of the customs or iaternal revenue officer, for example, — has been empowered to exercise a like authority. and Ignorant of the great danger to which they are exposed. Under such circumstances the cammajxding officer should withhold the Are of his troops, if possible, until timely warning has been given to the innocent to separate themselves from the guilty. Under no circumstances are the troops to fire into a crowd without the order of the commanding officer, except that single sharpshooters, selected by the commanding officer, may shoot down Individual rioters who have fired upon or thrown missiles at the troops. As ti general rule the bayonet alone should be used against mixed crowds In the first Stages of a revolt. But, as soon as sufficient warning has been given to enable the inno- cent to separate themselves from the guilty, the action of the troops should be governed solely by the tactical considerations involved in the duty they are ordered to perform. They are not called upon to consider how great may be the losses inflicted upon the public enemy, except to inalte their blows so effective as to promptly suppress all resistance to lawful authority, and to stop the destruction of life the moment lawless resistance has ceased. Punishment belongs not to the troops, but to the courts of justice." " Now embraced in Sec. .787, Rev. Sts. « 16 Opins. At. Gen., 162 ; 17 Id., 242, 333 ; Digest, 162, 593. '» See' the law and instructions as laid down and communicated In the following papers, opinions and orders : Instructions from Atty. Gen. Evarts to the Marshal of the No. Dist. of Fla., of Aug. 20, 1868 ; 6 Opins. At. Gen., 471 ; 13 Id., 451 ; 16 Id., 162 ; G. O. 96 of 1876 ; Communication from Headquarters of the Army to Maj. Gen. Meade, Comdg. Dept. of the South, Aug. 25, 1868 ; G. O. 65, Dept. of the Cumberland, 1868 ; Circ. 14., Oct. 5, 1868 ; Circ, Id., March 11, 1870 ; Do., Dept. of Va., March 4, 187d ; G. O. 29, Dept. of the Mo., 1870 ; Do. 3 Id., 1874 ; Do. 2, Dept. of Texas, 1870 ; Do. 54, 75, Dept. of the South, 1874 ; Do. 29, Dept. of the Gulf, 1874 ; Digest, 593-4. The only substantial point of difference between the instructions of the Attorney General and those of the military authorities appears to be that the former indicate that the marshal Is authorized absolutely to require the assistance of the miliary when and in such force as may in his opinion be necessary, (see Instructions Atty. Gen. Evarts ;) while the latter in effect declare that it is for the officer commanding the troops summoned to decide whether the service required is lawful or necessary. (Communication to Maj. Gen. Meade, ante; G. O. 29, Dept. of the Mo., 1870.) The former is the correct view. MIUTABY LAW AND PRECEDENTS. 867 The powef Is also one that cannot legally be exercised by sheriffs or other State officials, who, though they might be authorized to summon members of the army as citizens, could not legally call upon them in their armed and military capacity as officers and soldiers of the United States land forces." The army as such can constitutionally take no part in preserving the peace of States, or in executing the laws of the States, otherwise than as it may be employed to protect the States against domestic violence under the provision of the Constitution above considered," or to suppress insurrection under Title LXIX, Rev. Sts. EFFECT OF THE LEGISLATION OF 1878. But the power derived from the Act of 1T89 has been abruptly divested by a recent statute, and practically exists no longer. This statute is a provision of the Act of June 18, 1878, c. 263, which in s. 15, declares that — " From and after the passage of this Act it shall not be lawful to employ any part of the Army of the United States 1354 as a posse comitatus, or otherwise, for the purpose of executing the laws, except m such cases and under such circumstances as such em,ployment of said force may be expressly authorized by the Constitution or by Act of Congress."" This legislation, evolved as it was out of a terapdrary political antagonism on the question of the extent of the authority of the President to employ the military to preserve order at elections in the States,'" remains, now that the occasion for its enactment has passed, a mere impediment to the constitutional exercise of the executive power of the nation.^ In the remoter West especially It has proved a serious embarrassment to the efficient execution of the process of the U. S. courts. Where, indeed, there exists a combination to resist the enforcement of the laws, the President may proceed to avail himself of the army, as authorized and prescribed in Sees. 5298-5300, heretofore considered. But for making arrests in individual cases, of persons charged with offences against the United States, the U. S. marshal, although the military stationed in the vicinity may be the only force adequate to effectuate such arrests, is not In general empowered to avail himself of their assistance under the existing law." Excepted cases — Express statutory authority for employment of military for civil purposes. The Act of 1878 excepts, as has been seen, from its opera- tion, those cases in which the employment of a military force " as a posse comitatus, or otherwise, for the purpose of executing the laws," may be " ex- pressly authorized " by the Constitution or by statute. While in the Constitu- tion such express authority is nowhere vested in terms, the same is con- veyed in sundry sections of the Revised Statutes, as follows : — Sec. 1984, author- izing a resort to the land forces for aid in arresting persons offending 1855 against the laws for the protection of civil rights; Sec. 1989, further authorizing the President to employ the land forces in the execution of the provisions of Title XXIV, relating to civil rights ; " Sec. 1991, requiring " The armed force for them to summon, if any, is the mttitia. See Instances in Raush V. Ward, 44 Pa. St., 289 ; Curtis «. Allegheny Co., 1 Philarl., 237. " See instructions of Atty. Gen. Evarts, above noted ; also Digest, 162, 164, 593-4. "Compare, as in pari materia, the Acts of June 23, 1879, c. 33, s. 6; and May 4, 1880, c. 81, s. 2. *■ It is singular that the Act of 1878 did not In terms repeal the provision of the Act of Feb. 25, 1865, incorporated in Sec. 2002, Rev. Sts., wrhich in effect expressly authorizes the employment of the U. S. military " to keep the peace at the polls " at elections in the States. On the contrary, it left such provision in full force. See text, post. ^ Mr. Garfield said of this Act, in the debate on its passage, (45th Cong., 2d Sesa., Uecord, p. 3845,) — "It puts the command of the Army into the hands of Congress." a See 16 Oplns. At. Gen., 162 ; 17 Id., 71, 242, 333 ; 19 Id., 203, 570. " See 19 Opins. At. Gen., 570. 868 MIUTAKY LAW AND PRECEDENTS. military persons to aid in enforcing the law abolishing peonage in New Mexico; Sec. 2002 authorizing the use of the military to keep the peace at elections; Sees. 2118 and 2147, authorizing him to employ the military to re- move persons from Indian lands or the Indian country who are there con- trary to law ; Sees. 2150, 2151 and 2152, authorizing him to employ the army to prevent the introduction of unauthorized persons or things into the Indian country, to destroy distilleries set up therein, to make certain seizures," to apprehend persons being illegally in such country as well as criminal Indians, to put an end to hostiUties between Indiau tribes, &c. ; Sec. 2460, authorizing the President to employ the military to aid in preserving the timber belonging to the United States in Florida ; "^ See. 4792, requiring military officers com- manding on the coast to aid in the .execution of the quarantine laws ; Sec. 5275, authorizing the President to employ the army for the custody of extradited persons; Sees. 5287 and 5288, authorizing him to employ them in executing the neutrality laws; Sees. 5297, 5298, and 5299, authorizing him to employ them in suppressing insurrection and unlawful combinations, (considered under a previous head ; ) Sec. 5316, authorizing him to employ them to prevent the re- moval of vessels or cargoes seized for condemnation as contraband; Sec. 5577, authorizing him to employ them to protect the rights of discoverers of guano." 1356 Included among the exceptions under consideration are also the special statutes expressly authorizing the employment of officers of the army for certain civil duties, such as follows: — Sec. 1225, Rev. Sts., authorizing the President to detail such officers as professors of colleges, &e. ; Sec. 2062 " and the Act of July 13, 1892, c. 164, authorizing or requiring the President to detail such officers as Indian agents ; Sec. 2190, authorizing the Secretary of War to direct such officers to aid in taking the census ; Sees. 4684, 4685 and 4687, authorizing the President to employ such officers on topographical work, &e., In connection with the Coast Survey ; Act of June 11, 1878, providing for the detail of an engineer officer as one of the Commissioners of the District of Columbia; Act of June 23, 1879, authorizing the detail of an officer, not above the rank of captain, " for special duty with reference to Indian education ; " " Acts of June 28, 1879, and July 5, 1884, authorizing the appointment of three engineer officers on the " Mississippi River Commission " and the " Missouri River Commission," respectively, and the detail of other such officers for service " See 18 Opins. At. Gen., 546. ■In connection with this Section, (2460,) sec Act ot March 3, 1807, c. 46, a. 1, in- cluded with this class of statutes In G. O. 26 of 1894, post. "See par. 487, A. E. of 1895. G. O. 26, H. A., of 1894, in calling the attention of ofBcers to these statutes, concludes as follows — " Officers of the Army will not per- mit the use of the troops under their command to aid the civil authorities as a posse comitatus or in execution of the laws, except as authorized in the foregoing enact- ments. If time will admit, the application for the use of troops for these purposes must be forwarded, with a statement of all the material facts in the case, for the consideration and action of tlie President ; but, in cases of sudden and unexpected invasion, insurrection, or riot, endangering the public property of the United States, or In cases of attempted or threatened robbery or interruption of the United States mails, or other equal emergency so imminent as to prohibit communication by telegraph, officers of the Army may, if they think a necessity exists, take such action before the receipt of instructions from the seat of Government as the circumstances of the case and the law under which they are acting may justify. In every such case they will promptly report their action and the circumstances requiring it to the Adjutant General for the information of the President." [Now incorporated in par. 489, A. S. of 1895.1 " See 15 Opins. At. Gen., 405. " See DIGEST, 164-5. and note. MILITARY LAW AND PRECEDENTS. 869 therewith ; Act of June 16, 1880, authorizing the detail of two officers of the Ordnance corps to serve with the Geological survey; Act of October 1, 1890, authorizing the assignment of officers (and transfer of enlisted men) for duty with the Weather Bureau of the Agricultural Department; Act of March 1, 1893, constituting the California Debris Commission, to consist of officers of the corps of Engineers of the Army. In all such excepted cases, the military in general, or the particular officers (or enlisted men) indicated, may still be employed for the purpose of the execu- tion of the designated law, notwithstanding the general prohibition of 1878. 1357 4. Foe the Execution of the Laws Relating to Indians and thk Indian Cotjntet. (1) AS TO INDIANS NOT ON BESERVATIONS. It is the policy of the government to assemble all the Indian tribes and bands upon lands reserved for the purpose, and, with a view to their location and maintenance upon such lands, treaties have been from time to time entered into with them, and appro- priations are annually made by Congress. Indians omitting or'refusing to enter into treaties or to locate upon reservations, and remaining at large, are in general to be regarded as In a state of actual or quasi hostility, and may be treated by the military authorities, under the orders of the President, either as hostile or merely not friendly, as circumstances may dictate. In the latter relation, the attitude of the military toward them is to be one of watchfulness and precaution ; in the former they are public enemies, and the laws of war, so far as practicably or reasonably applicable, will govern the army in its operations and proceedings against or with regard to them." (2) AS TO BESEBVATION INDIANS AND THE INDIAN COUNTRY IN GENEBAX — The law applicable. It is to such Indians and their country that the statutes heretofore indicated specially apply ; viz. Sees. 2118, 2140, 2147, 2150, 2151, 2152, Eev. Sts., which authorize the employment of the military in the civil duty of removing trespassers from the Indian country, in appre- hending persons found there in violation of law and conveying them to the civil authorities, in preventing the unauthorized introduction of spirituous liquors therein, in making seizures of property and arrests of criminals, &c. What is Indian country. What is to be regarded as Indian country 1358 is now well established by the decisions of the courts and rulings of the law officers, as consisting of — "(1) Indian Reservations occupied by Indian tribes; and (2) Other districts so occupied to which the Indian title has not been extinguished." " The question whether Indian title has or not *• " Outside of the well defined limits of their ReaervatlonB, all Indians are under the original and exclusive Jurisdiction of the military authorities." G. O. 20, Div. of the Pacific, 1870. And see Circular, Dept. of the Columbia, Nov. 16, 1870, publishing com- munications from Commissioner of Indian Affairs concurred in by the Secretary of War. As to the application of the law to hostilities with Indians, see 14 Opins. At. Gen., 249, cited on p. 14 ante [?] ; also, (as to what constitutes war with Indians,) Alire v. V. S., 1 Ct. 01., 238 ; Marks v. U. S., 28 Ct. Cl., 147. *• G. 0. 97 of 1877. Or as it has been more recently defined by the Supreme Court in Ex parte Crow Dog, 109 U. S., 556, — " All the country to which the Indian title has not been extinguished within the limits of the United States, whether within a reserva- tion or not." And see further, on this subject, Am. Fur Co. v. U. S., 2 Peters, 358 ; TJ. S. V. Forty-three Gals, of Whiskey, 93 U. S., 188 ; Bates e. Clark, 85 D. S., 204 ; D. S; V. Sevelofl, 2 Sawyer, 311 ; In re Carr, 3 Id., 318 ; U. S. v. Leathers, 6 Id., 17 ; U. S. V. Sturgeon, Id., 29 ; U. S. d. Martin, 8 Id., 473, and 14 Fed., 817 ; 14 Opins. At. Gen., 290, 327 ; 19 Id., 512 ; G. 0. 98 of 1873 ; Do. 40 of 1874 ; Do. 97 of 1877 ; Dl- GIST, 450. 870 MILITAEY LAW AND PRECEDENTS. been extinguished as to any district will of course mainly depend upon the treaty or treaties entered into with the tribe." Before making arrests of persons or seizures of property, as being. illegally within Indian country, (not included in a reservation,) officers of the army will properly inform themselves as to whether the district is Indian country in fact ; otherwise they may become sub- ject, as in the case of Bates v. Clark,'" to a civil suit and judgment for damages. Bemoval of tresspassers under Sees. 2118, 2147, R. S. Authority to re- move intruders from a public reservation when necessary for the protection of property of the United States is a measure of public self-defence which would exist in the absence of statutory provision. Under the above Sections relating to the removal of persons who are in the Indian country in violation of law, the military may be employed summarily to remove therefrom persons who are there for the purpose of making settlements on the land, or carrying on traffic in violation of the laws regulating intercourse with the Indians, or for any other illegal or unauthorized purpose, or Who, as speculators, outlaws, vaga- bonds, &c., are simply commorant there contrary to the provisions of an ex- isting treaty with the tribe or without the permission of the agent or 1359 officer in charge." And the order of the President or Secretary of War directing such removal will be " an adequate protection " to the officers and soldiers who may perform the service." The above statutes, considered in connection with Sees. 2150 and 2151, are regarded as contemplating the mere removal of persons as intruders, and the apprehending of persons with a view to action by the civil authorities, as distinct proceedings, — so that the military may be employed simply to remove without apprehending. Whether persons are or not in the Indian country in violation of law is a question to be determined by the executive authorities charged with the custody and protection of the Indians and the execution of Indian treaties. " The courts will not review their decision in these matters." '^ It has been held, generally, by the Attorney General that — " the Commissioner of Indian Affairs and his subordinate, the Indian Agent, have full discretion to remove from the Indian reservation any person not of the tribe of Indians entitled to remain thereon, and can not be interfered with by mandamus or injunttion of any court;" and " in so doing the agent may use, by direction of the President, any military force necessary for the purpose." '" Apprehension of persons under Sees. 2150 and 2151, B.. S. The authority and duty of officers of the army under these Sections, and the necessity for observing strictly their terms, are pointedly illustrated by the rulings of- the U. S. Circuit Court for the Ninth Circuit in the cases of In re Carr" and Waters v. Campbell," and of the same Court for the Eighth Circuit in U. S. v. Crook." " See the communication of the Secretary of the Interior, published In G. 0. 97 of 1877, as to a certain ciistrlet formerly Indian country but restored to the public domain by the operation of treaties with the Sioux and other tribes. »^95 U. S., 204. >= 6 Opins. At. Gen., 665 ; 16 Id., 268, 451 ; 15 Id., 601 ; 19 Id., 511 ; G. O. 72 of 1870 ; Do. 16 of 1880 ; Do. 83 of 1884 ; Digest, 163. Where trespassers have intruded in a body, especially when their intrusion is concerted or organized, formal notice to them to quit is sometimes given before resorting to military force. See, In this connec- tion, the two recent proclamations of the Presideat, of April 17 and Aug. 7, 1885. "14 Opins. At. Gen., 453. =5 U. S. V. Sturgeon, 6 Sawyer, 30. »»20 Opin^., 245, 247. "3 Sawyer, 816. » 5 Sawyer, 17. And see Barclay v. Goodale, 3 Id., 318. "Ex rel. Standing Bear and twenty-five others, 5 Dillon, 453. MIUTARY LAW AND PRECEDENTS. 871 In the two former of these cases, it was held, In regard to the action 1360 of such officers under Sec. 2151 — (1) that as the officer, in. malsing the arrests autliorized, acts in a civil capacity, his proceeding should be justified by affidavit or affidavits, (made by himself or other person or per- sons,) in accordance with the provision of Art. IV of the Amendments of the Constitution, which declares that " no warrants shall issue- but upon probable cause supported by oath or affirmation and particularly describing" the place to be searched and the person or things to be seized; " (2) that the officer Is In no event empowered to detain a person arrested longer than five days before commencing to remove him to the custody of the civil authorities, and that, If he has no means of removing or commencing to remove his prisoner within that period, he must discharge him; (3) that during the five days, or during the process of removal, he can confine or restrain the prisoner only so far as may be necessary to his safe-keeping and cannot put him to labor or subject him to military discipline. In the case of In re Carr, a proceeding upon habeas corpus, the prisoner was held entitled to be discharged from the custody of the oflicer because he had been held more than five days — in fact " nearly ninety days " — before an attempt was made to remove him. In Waters v. Campbell, an action for false imprisonment, the officer was held lial^le lu $2000 damages, for the reason that, in the absence of facilities for removing his pris- oner, he had detained him fifty-six days before removal, and, in detaining him, had required him to do " fatigue duty " of the same character as that performed by the soldiers at the post. The court held that while the party, for the purposes of custody, could legally be placed in the guard-house, Txe "'ought not, being a non-military person — a citizen merely under arrest upon the charge of having committed a non-military crime — to have been compelled to worli during his confinement or to perform any auty unless it was to take care of his person." In the case of U. S. v. Crook, — a proceeding instituted for the release on habeas corpus of certain Ponca Indians, apprehended by the military under Sec. 2150, — ^the provision of this Section, requiring the removal of apprehended persons " by the nearest convenient and safe route to the civil authorities of the judicial district, &c., to be proceeded against in due course Of law," was aftly Interpreted by Dillon J. These Indians had left without authority the Indian Territory in which they had been placed, and betaken themselves to the 1361 Omaha Indian Reservation. It was held that, upon theii* apprehension by the military under Sec. 2150, they " should have been brought to Omaha and turned over to the U. S. Marshal and Attorney," and that, as this course was not pursued, but It was attempted to remove them bacfc to the Indian Territory against their consent, they were entitled to be .discharged from military custody as Illegally restrained of their liberty^" "To quote from the opinion of the court: — When troops are employed under 3ec. 2150, " they must exercise the authority in the manner provided by the section. » • » The duty of the military authorities is here very clearly and sharply defined, and no one can be justified in departing therefrom, especially in time of peace. * * * In time of peace no authority civil or military exists for transporting Indians from one sectton of the country to another without the consent of the Indians, nor to confine them to any public reservation against their will ; and where officers of the government attempt to do this, and arrest and hold Indians who are at peace with the govern- ment, for the purpose of removing them to and confining them on a reservation in the Indian Territory, they will be released on habetu corpus." The Court add, (p. 467 [?],) — " In what Gen. Crook has done in the premises, no fault can be Imputed to hipi. He was simply obeying the orders of his superior officers." And see the further reference to Gen. Crook's position in the case, on page 454 [ ?1. 872 MILITARY LAW AND PRECEDENTS. Seizures of Property under Sec. 2150, B. S. When the military are em- ployed under this section to make seizures of property for a violation of a provision of Title XXVIII, Rev. Sts., or otlier statute, or of a treaty, the fact of the seizure made should be forthwith reported to the U. S. District Attorney, and, as soon thereafter as is reasonably practicable, the property should be "placed in the custody of the proper civil officer," (as U. S. Marshal or officer of the customs,) not held by the military to abide official adjudication." That the military could not properly retain the property is illustrated by the Attorney General, as follows : — " The residence of the military forces is con- stantly liable to change, and that change may be sudden and to distant points, outside of the jurisdiction of the court where the rlghtfulnes^^f the seizure is required by law to be determined. The property seized or its proceeds, from the nature of the proceeding, must be so secured as to be constantly sub- ject to the direct commands, orders, and decrees of the proper court, and in such hands that a failure to obey such orders or decrees can be directly 1362 and immediately punished by the court. Were the custody of the prop- erty left in the hands of the military forces, the danger of misunder- standing and collision between the civil and military authorities would be In- curred. The possibility that the property might suddenly be carried beyond the jurisdiction of the court would be involved." " (3) RELATIONS OF THE MILITARY TO INDIAN A6!ENTS. The mili- tary, as employed in the Indian country, under the special orders or general instructions of the President, are employed in great part as a force auxiliary to the Indian Agents, detachments of the army being frequently stationed upon or near Indian reservations in order to render to such Agents the needful co- operation and assistance when required and legally authorized to be rendered. They should " act in harmony " with such Agents and the officers of the In- terior Department,- and be careful not to interfere in any manner with the details of the administration of the Indian Bureau." Where, in compliance with their ord.ers or instructions, they make arrests or seizures under the statutes above specified, or act — as in general they may — as a reserve police for the protection of public property or the keeping of order on a reservation, they will often and properly do so at the instance of an Agent who has first become apprized of the occasion for action; the commanding officer, unless specially ordered, not usually taking the initiative where there is an Agent present." It need hardly be added that the military cannot legally be em- ployed in aid of the authority of an Indian Agent, where such employment would be within the prohibition of the Act of 1878 above considered. (4) SPECIAL AUTHORITY OF OFFICERS OF THE ARMY WHEN ACTING AS INDIAN AGENTS. It was provided by a statute of 1834, incor- porated in Sec. 2062, Rev. Sts., that " The President may require any 1363 military officer of the United States to execute the duties of an Indian Agent ; " " and it was held by the Attorney General that under this Section, considered in connection with Sec, 1224, Rev. Sts,, the President might, in his discretion, " assign a military officer to execute the duties of Indian •"IS Opins. At. Gen., 544. " Id., p. 546-7. *" CJ. O. 2, Div. of the Missouri, 1891. And see, In general, as to " the action of troops operating in the Indian country," the valuable Circular, No. 2, Dept. o£ the Mo., 1889. (Gen. Merrltt.) "See G. O. 20, Dlv. of the Pacific, 1870; Clrc, Dept. of the Mo„ May 22, 1876; also 16 Opins. At. Gen., 601. " That this .agency Is a eivU offioe — Sec. 2662 in effect Ingrafting an exception upon the provision of Sec. 1222, prohibiting the holding ol civil offlce by officers on Ihe active list of the army — see 14 Opins. At. Gen.. 573. MILITAKY LAW AND PRECEDENTS. 873 Agent, If this could be done without separating the officer from his company, regiment, or corps, or otherwise interfering with the performance of his military duties." But it was further held that, (under Sec. 2059, Rev. Sts.,) the President might transfer an Indian agency " to the vicinity of a military post should it be contemplated to require a military officer to perform the duties of agent." " By more recent legislation on tMs subject, the Act of July 13, 1894, c'. 164, it is declared — " That from and after the passage of this Act, the President Shall detail officers of the army to act as Indian Agents at all Agencies where vacancies from any cause may hereafter occur, who, while acting as such Agents, shall be under the orders and direction of the Secretary of the Interior, — except at agencies where, in the opinion of the President, the public service would be better promoted by the appointment of a civilian." Under this statute an army officer now detailed as an Indian Agent will be, as such, exclusively under the direction of the Interior Department and Indian Office, and will be governed by the laws pertaining to Indian Agents in general," and by the regulations issued under Sec. 2058, Rev. Sts." His principal duties will be to maintain the effi- ciency of the police and keep the peace at his Agency, to promote the adminis- tration of justice through the tribal courts, to prevent any illegal Intercourse or trade with the Indians, especially the trade in spirituous liquors, to prevent depredations, such as the cutting or removal of timber, hay, &c., on the Reserva- tion, to remove therefrom trespassers and all unauthorized persons, to 1364 maintain existing treaties " and agreements with the tribe or tribes under his charge, to induce the Indians to engage in useful labor, and generally to watch over their interests and promote their welfare as wards of the na- tion." If a military force is placed under his command, he will be, as to such force, under the orders of his military superiors, and in its disposition will be governed by the laws already considered relating to the employment of the army for civil purposes. He will perform his duties with regard to individua:ls of a tribe as well as toward the tribe as a whole," and will be careful not to overstep the limits of his jurisdiction." Where he gives bond for the faith- ful discharge of his office,"' he will not in general be held responsible for the negligence of subordinates unless he could have prevented the same by reason- able diligence." As a disbursing officer he and his sureties will be held liable for publiq money paid to an employee not authorized to be employed by him ; " but in an action on his bond for a failure to account for property alleged to have come into his hands, the government, where it has lost nothing by such failure, can recover nominal damages only." Jurisdiction of criminals. An officer of the army serving as Indian Agent may sometimes be called upon to take action, under Sec. 2139, 2150, or 2152, Rev. «15 Oplns., 405. " The Act of May 17, 1882, requires the Commissioner of Indian Affairs to furnish Indian Agents with printed copies of all the Statutes relating to their duties. " Published In the volume entitled " Regulations of the Indian Office," revised to March 12, 1894. *• Such treaties are to be liberally interpreted. The Kansas Indians, Wallace, 737. » See tJ. S. V. Hm-shman, 53 Fed., 543, cited post. » U. S. V. Earl, 17 Fed., 95. « See La Chapelle v. Bubb, 62 Fed., 545. "For form of Agent's bond, see the above Regulations, p. 233. Its condition is that he shall carefully discharg*' the duties of his office, and faithfuUj- disburse all public moneys and account for all public funds and property coming into bis hands or placed in his charge. "D. S. V. Young, 44 Fed., 168. « U. S. V. Sinnott, 26 Fed., 84. " U. S. V. Young, ante. 874 MILITARY LAW AND PBECEDENTS. Sts., or other provision, with reference to the apprehension or disposition of persons charged with homicide or other crime or offence, committed upon an Indian reservation. The existing law. Act of March 3, 1885," (on the subject of the jurisdiction of crimes, &c., committed by Indians, ) provided that in a case of the commission by an Indian within a Territory of the offence of 1365 murder, manslaughter, rape, assault with intent to kill, arson, burglary or larceny, the Territorial court shall have jurisdiction ; and in a case of the commission of such an offence by an Indian within an Indian reservation in a State, the jurisdiction shall be in a court of the United States. This leaves the jurisdiction of such crimes when committed in a State, but not on a reservation, to the State courts. As to other offences not specified in this Act, (as robbery, mayhem, and as- sault and battery,) the jurisdiction would remain as under the pre-existing law." If the crime was committed in a Territory, the jurisdiction would be in a II. S. court, unless the United States had surrendered the jurisdiction to the tribe ; if in a State, it would be in a State court, unless the crime was com- mitted on a reservation exclusive jurisdiction over which had been retained by the United Staies or ceded to the tribe under treaty."' In cases of crimes committed by whites in the Indian country, the jurisdiction, under Sec. 2145 and 2146, Rev. Sts., would be in the U. S. courts unless otherwise provided by statute or treaty."" In an instance of any of the above offences, committed by a person under his charge or control, it will be the duty of the officer acting as Agent to cooperate with the Territorial sheriff or.U. S. marshal in securing the arrest of the offender. In the event o'f an assault, or of a killing, committed against the Agent himself, (or against an Indian policeman, or an Indian deputy marshal, posse comitatus, or guard,) or in case of his or their being obstructed in the execution of duty by threats or violence on the part of an Indian, the U. S. District Court, " exercising criminal jurisdiction where the offence was committed," is invested with jurisdiction of the case, by the Act of June 9, 1888 — a statute affording material protection to an Indian Agent. In a case of an offense of this class committed against any one of the persons 1366 above mentioned other than himself, It would also properly devolve upon the Agent to assist in securing the apprehension of the offender with a view to his trial and punishment. As to the function of an Indian Agent In contributing to the administration of justice through the trWal courts, or " Courts of Indian Offences," reference will properly be made to the " Regulations of the Indian Office, 1894," wliich are full and explicit on this subject. Introduciiigr intoxicating liquor into the Indian country. Sec. 2139, Rev. Sts., forbidding and making punishable the introduction of " ardent spirits " into the Indian country, and the selling, &c., to Indians, of " any spirituous liquors or wine," has been amended by the Act of July 23, 1892, c. 234, which adds " ale " and " beer " to the liquors prohibited, specifies the procedure to " Held constitutional In U. S. v. K«gama, 118 U. S., 375. And see Gon-sliay-ee, Peti«"ner, 130 U. S., 343. See this Act as published In G. O. 38 of 1886, with revoca- tlc a regulation In conflict therewith. »■ ,...• Sec. 2146, Kev. Sts. "• See TI. S. v. Rogers, 4 Howard, 567 : Ex parte Crow Dog, 109 V. S., 556 ; TJ. S. v. Yellow Sun, 1 Dillon, 271 ; Ex parte Reynolds, 5 Dillon 394 ; U. S. v. Sa-coo-da-cot, 1 Abb., 377 ; State v. Doxtater, 47 Wis., 278 ; U. S. v. Shanks, 15 Minn., 369 ; Rubideaux ■V. Vallle, 12 Kans., 28 ; 17 Opins. At. Gen., 460 ; 18 Id., 138. ""TJ. S. V. Rogers, ante; U. S. v. Bridleman, 7 Sawyer, 243. As to the Jurisdiction of crimes committed In the Indian Territory and the Territory of Oklahoma, see " Regu- lations of the Indian Office " § 578, 579. MEUTABY MW AND PBBCEDENTS. §75 be pnrsnied to cases of arrests of offenders, and provides that persons ar- rested " ^all, unless discharged upon, examination, be held to answer and stand trial before the court of the United States having jurisdiction of the offence." A previous enactment of July 4, 1884, c. 180, had provided that nothing in Sec. 2139, or in Sec. 2140, should be a, bar to the prosecution of any officer, soldier, employee, .&c., of the army, who should " barter, donate, or furnish in any mjinuer wbatapever, liquor^, yirines, beer, or any intoxicating beverage whatsoever to any Indian.'* That is to say, the fact that a person is connected with the army does not dispense with his being speciflcally lioensed, to authorize his introducing or furnishing liquor as above. This authority, must proceed frgm the Secretary of War.' No military com- mander or officer is empowered to license a trader or other person to traffic with the Indians." In the recent case of United States v. Hurshman,'" it was held to be indictable, under Sec. 2139,, to sell liquor to an Indian of the Nez Perces tribe, although he was at the time an enlisted soldier. It was conceded by the court that "consistently with, title maintenance of military discipline, there can be no control by officers of the Departipent of the Interior of soldiers while on duty or during their terms of enlistment. But " — it is added — " when an Indian enlists in the military service, the officers of Indian 1367 affairs are only pa,rtlally relieved of their charge concerning him, and but temporarily dpprived of power to control his person. While he Is In the army, said officers continue to be charged with the duty of caring for his family and property and interests as a membgr of his tribe, and upon his discharge from the army their right to control him will be fully restored. * * » Neither the IntJians themselves, the officers of the army, who induce them to enlist, or officers of the Interior Department who consent to it, have any power to change the laws ; and no act of either, affecting for the time being the actual situation of an Indian, can change his status frpm that of a ward of the nation," Under the existing law on the, present subject — ^See. 2189, Eev. Sts„ as above amended — the jurisdiction of offences Is- exclusively in the U. S. courts. And this jurisdiction, it has been held, is not affected, although the liquor Is furnished to the Indian outside of any reservation and within the territory of a State." (5) EXCEPTIONAX CASES OF OPFICEBS IN CHABGB OE INDIANS. Where an officer of the army-^not as an Indian agent but in his military capacity — is placed in charge of captured or surrendered Indians heM upon a reservation as prisoners of war, he exercises an exceptional authority not strictly within the scope! of the general statute law above considered. This authority is a modified form of nlilitary government under the laws of war, and is, strictly, without limitation except in so far as it may be restricted by those laws or the orders of nillltary -superiors. In his government, however, the officer will properly not resort to the summary proceedings peculiar to a war status except in extreme cases, and where a difficulty can be disposed of under the existing sfetiite taw applicable to reservation Indians, he will dispose of it accordingly rather than by a resort to the discipline of camps. The dlsciplihe which he will «xe»clse will In general consist in preserving peace « 16 Oplns. At. Gen., 403. " 53 Fed., 543. (Novemlber, 1«9>2.) -V. S. *. Holliday, 3 Wiallaea, 307 J tJ. Si ■». Shaw-mux, 2 Sawyer, 364; D. S. v. Burdick, .1 Dak., Itt^. " No State can by either its constitution or other legislation withdraw the Indians within its limits- from the operation of the laws of Congress regulating trade with them." V. S. ■». Holliday. 876 MIUTAEY LAW AND PKEeEDENTS. and good order, in bringing offenders to trial and punishment by their own tribunals or the proper cItU court, in preventing Indians from leaving the 1368 reservation without authority, in enforcing such health regulations as circumstances may require, and in seeing that the provision made by Congress for the care and maintenance of the Indians is efficiently and equitably executed." (6) RELATION IN GENERAL OF THE MILITARY TOWARD PEACE- ABLE INDIANS. It remains to remark that the relations of the military with the friendly Indians should be distinguished by a particular and scrupulous justice, humanity and discretion, for the reason that the former specially repre- sent to the latter the power of the United States. For an officer or soldier to fail in his duty toward such Indians is a peculiarly serious offence, since it materially compromises the government and sensibly Impairs Its authority over this class of its subjects, and moreover tends to Induce them to lapse Into hostility. In a case, in the Department of the. Columbia," of an aggravated in- jury Inflicted by a soldier upon an Indian, the offence was chatacterized by the Department Commander, (Gen. Canby,) as a graver one than If committed by a civilian, because — as It was expressed — " the Army has been made, under the direction of the President, an Important agent In the execution of. the laws regulating intercourse with the Indian tribes, and such acts by soldiers are not only violations of the statute but gross breaches of discipline and of trust." 5. Foe the Removal or Intbtjdebs fbom Militaby Resebvattons." The enactment of 1878 above cited restricted the employment of the military " for the purpose of executing the laws" but not otherwise. It did not there- fore affect the general authority of the President as Commander-in-chief to use the army for the removal of trespassers and intruders from the military reser- vations or posts under his command, this not being properly an execution of a law, but a form of conservating and protecting the public property in his 1369 charge and exercising an ordinary and reasonable police power over the same. The authority of the President to employ the military forces for this purpose exists as fully as does the authority, expressly — as we have seen — con- ferred by statute for the removal of intruders from the Indian lands or country. Its existence and exercise from an early period have been repeatedly recognized and sanctioned in legal opinions and General Orders." Such authority extends to the expulsion of squatters or other trespassers entering upon and occupying the land, whether or not under a claim of title, as well as of all persons coming within the reservation for Illegal traffic or other unauthorized and improper purpose, to the prejudice of military discipline or the detriment of the public Interests. In removing the person his property may be removed with him. But no unnecessary force should be employed in the process, nor should the use of force be continued after the removal has been effectually accomplished." And where convenient and practicable, a reason- " See Memo, of Agreement between the Secretary of War and the Secretary of the Interior as to the Apache Indians on the San Carlos Beservation, dated July 7, 1883. •• G. O. 10, Dept. of the Columbia, 1871. " As to what is a military reservation, and as to the power of the President to reserve lands for military purposes, see Digest, 510-12, and note authorities there cited. " 1 Oplns. At. Gen., 164, 471, 475, T03 ; 2 Id., 574 ; 3 Id., 268, 566 ; 4 Id., 407, 489 ; 7 Id., 534 ; 9 Id., 106. 476, 521 ; 10 Id., 70, 184 ; 6. O. 62, 74, of 1869 ; Do. 26 of 1883 ; Do. 216, Fifth Mil. Dlst., 1869. And see Army Regs., par. 138. " " Due caution should be observed, however, that, in executing t^ls duty, there be no unnecessary or wanton harm done to persons or property." 9 Oplns. At. Gen., 476. MIIilTABY LAW AND PKECEDENTS, 877 able notice to quit, and remove property if any, will properly be given before force is resorted to." Tills duty of conservation and police is one devolving upon the 11. S. military. Tlie peace officers of an adjoining town or district are not empowered, In tlie absence of the authority of U. S. statute, to enter upon a military reservation and arrest intruders. Such authority is believed to have been given in but a single instance, that of the Act of Congress of June 4, 1888, c. 342,. which pro- vides that " whenever called upon by the proper military authorities, the City of San Francisco shall be permitted to send any part of its police force to 1370 arrest trespassers, intruders, and disorderly persons upon " the Eeserva- tlon of the Presidio of San Francisco. ATTITUDE OF THE MILITAEY TOWABD THE CIVIL COMMXTNITY WHEN NOT ATTTHOmZED TO BE EMPLOYED AS HERETOFOBE IN- DICATED. Except as and when employed and ordered under the statutes and authority above specified, the U. S. military are not empowered to intervene or act as such on any occasion of violation of local law or civil disorder, or in the arrest of civil criminals. While officers or soldiers of the army may individu- ally, in their capacity of citizens, use force to prevent a breach of the peace or the commission of a crime in their presence,™ they cannot, (except as above,) legally take part, in their military capacity, in the administration of civil justice or law. Their attitude, therefore, toward the civil community and the civil authorities, at a period of riot or lawless disturbance should in general be a strictly neutral one: whatever the temptation or occasion, they should re- main simply passive until required by the President, through their immediate commanders, to act. A zealous officer Is sometimes induced, especially when serving on a western frontier, to intervene at least for the arrest of a criminal whom the civil authorities are apparently powerless to reach, and who, in the absence of any interposition on the part of the military, will probably escape legal pulshment. Such intervention, however, will in general be unauthorized by law, and subject the officer and the members concerned of his command to actions for false arrest and imprisonment." • II. LIABILITY OF THE MILITARY TO CIVIL SUIT OR PROSECUTION. GENERAL PRINCIPLES OF AMENABILITY — Subordination of mili- tary to civil. It is not unfrequently enunciated as a general principle that the military authority Is subordinate to the civil." This, however, is not 1371 to be understood as implying that the military state as such is not fully governed by Its own code, or that the army, in time and on the theatre of war, is liable to be controlled by other than military orders. What is chiefly meant by the proposition is that officers and soldiers of the army do not become ••As to the authority of the Secretary of War to grant to a civilian a revocable lipenee to enter upon and occupy the soil of a military reservation, in contradistinction to a usufructuary Interest in the land as property, (which can be granted only by the authority of Congress,) the student is referred to the Title — " Public Property," in the Digest, pp. 623-633; where the general subject will be found to be fully illustrated. And see 19 Opins. At. Gen., 628; Clr. No. X2, (H. A.,) 1891. ™ Burdett v. Abbott, 4 Taunt., 449 ; Simmons i 1097-1100. And see ante, Ch. XXV — " Twenty-Fourth Article." 1 See Digest, 164. "i Dow V. Johnson, 100 U. S., 169 ; San Francisco Sav. Union v. Irwin, 28 Fed., 708,(citing U. S. V. Lee, 106 TJ. S., 196;) Ew parte McRoberts, 16 Iowa, 601 ; Rawie on the Const., 161 ; Halleck, Int. Law, 303 ; 6 Opins. At. Gen., 415, 417, 451 ; Tytler, 153 ; Willes, C. J., in Frye v. Ogle, 1 McArthur, 344 ; Clode, M. L., 144-S ; O'Brien, 26-28 ; Digest, 50. And Compare the declarations of the Continental Congress on this subject, in 2 Jour., 68, 232, 672 ; 3 Id., 77, 211, 243, as cjted under the " Fifty-Ninth Article," ch. XXV 878 MIOTABY LAW AND PBECBDENTTS. relieved of their dvll obligations by assuming the military character, bnt, aa citizens or civilian inhabitants of the country, remain liable, equally with other civilians, to the jurisdiction of the eivll courts for oflenoes against the local laws, as well as for wrongs done or responstbillties incurred toward indlvidu- ■ als." On the other hand, Qie soldier Is equally entitled, in a proper case, to the benefit of the civil law — ^has, as it Is expressed by Samuel," " a property " in the same. Thus the military law does not " abrogate, or derogate from " the gen- eral law of the land," but Is in fact in harmony with it." Exemption from arrest. By Sec. 1237, Rev. Sts.," enlisted men are expressly exempted from arrest on civil process, except for certain debts contracted be- fore enlistment. The statute law does not extend this exemption to oflScers." The. general principle, however, of public policy, that public officers shall not be subject to such arrest when engaged in the iwrformance of their official duties, extends to and protects officers of the army equally with other officials." But neither the statutory exemption nor principle indicated extends to arrest on criminal process." 1372 Double amenability. That a military person may be amenable both to the military and the civil jurisdiction for the same act, is -a further principle which has heretofore been remarked upon with reference especially to conduct of a criminal character. We have seen that where the acts constituting a military offence involve also an offence against the laws of the United States or of the State, the officer or soldier may be brought to trial both by a court-martial for the offence against the Articles of war and by a civil tribunal for the civil crime, the offences not being " same " but dis- tinct ; the court which first assumes jurisdiction, by the arrest of the offender or otherwise, being the one to be permitted first to pass upon the case." In the same manner a military person may be liable to a civil suit on account of a trespass, &c., for which he has been tried or may be triable by a court- martial as a breach of military discipline. Thus an officer liable to military trial for an illegal punishment or other unauthorized treatment of a soldier, or for the unauthorized ^izure of the property of a citizen, may, either before or after such trial, be sued in damages for the injury or loss to the individual. Oio&cial and discretionary acts. It is also a general principle, applicable to officers of the army equally with other public officers, that such officials are not to be made civilly responsible for the consequences of the ordinary and regular discharge of their official duties." Were it otherwise, " no man,'' as was observed by the court in a leading English case,'° " would accept office on these terms." It is a further principle, similarly applicable, that where n •• Tiie soldier is still a citizen, and as sucli is always amenable to the civil au- thority." State V. Sparks, 27 Texas, 632. The tact that a party is an officer in tiic pub- lic service of the United States is not aufflctent, as a ground of comity or pubUc policy, to induce a State court not to entertain a suit against him. Wilson v. Maclsenzie, 7 Hill, 100. "Page 183. " V. S. V. CashicI, 1 Hughes, 556. "1 Bishop, C. Ii. S 46. " The original of this provision was an enactment of March 16, 1802. " McCarthy v. Lowther, 3 Kelly, 397 ; Ex parte Harlan, 39 Ala., 565 ; Moses v. Mellett,. 3 Strobh., 210. " TJ. S. V. Kirby, 7 Wallace, 483 ; Coxon v. Doland, 2 Daly, 66. "° See authorities cited in last note. s> On this subject, see authorities cited under " Double Amenability," ante, vol. I, ch. VIII. " 5 Opins. At. Gen., 759 ; Wilkes v. Dinsman, 7 Howard, 89 ; Sbackford V. Newing- ton, 46 N. H., 415 ; Barton v. Fulton. 40 Pa. St., 157 ; Fenwick v. Gibbs, 2 Desau., 629 ; Stewart v. Southard, 17 Ohio, 402. « Gidley v. Ld. Palmerston, 2 Brod. & Bing., 286. MILITARY LAW AND PRECEDENTS. 879 such offlcers are invested with discretion as to the matter of the performing of an official act, they cannot be held to account for such performance in the same manner as if their function were ministerial only, but their acts, though mistaken, are In general to be presumed to be authorized and legal." .ia73 rORMS OP CIVIL AMENABILITY. The above general principles having been adverted to, we proceed to consider the subject of the amenability of military persons to civil suit or prosecution under the follow- ing heads — 1. Amenability to the United States; 2. Amenability to other mili- tary persons ; 3. Amenability to civilians. 1. AMENABILITY TO THE UNITED STATES — Criminal liability. This is incurred where the party becomes chargeable — (1) either with the com- mission of a crime of one of the classes known as crimes against the operations of the government, crimes against justice, acts of official misconduct, &c.," made punishable in Title LXX of the Revised Statutes or otherwise ; (2) or with the commission of one of the more familiar crimes, such as murder, manslaughter, larceny, arson, &c., similarly made punishable when committed in a place over which the United States has exclusive jurisdiction," or in respect to public property ; " (3) or vrith the commission of treason. 1374 Civil liability. As a general rule of law, all public offlcers are liable to the United States for any pecuniary loss to the same which may be incurred by them in the course of the discharge of their public duties.*' This principle is especially applied in practice to cases of disbursing offlcers who have become chargeable with deficits of public money or failure to account for public property entrusted to them for a public purpose. Where bonded offi- cers, they may in general be sued either with their bondsmen or separately. As has been noticed in treating of the Sixtieth Article of War,™ the laws enacted for the safe-keeping and proper disposition of the public moneys" are especially strict and specific, making officers personally liable for amounts lost in their charge, and constituting their acts legal embezzlement when perhaps the loss may have resulted from no fault of their own but from some incident, (such as the failure of a bank in which their funds had been regularly de- " See Kendall v. Stokes, 3 Howard, 97 ; Wilkes v. Dlnsman, 7 Id., 89 ; Allen v. Blunt, 3 Story, 742 ; Durand v. HoUins, 4 Blatch., 451 ; Druecker v. Salomon, 21 Wis., 621. Compare bere the cases in wbicb it lias been beld by tbe Supreme Court tbat public officers cannot be required, tbrough a writ of mandamus or injunction, to perform acts as to tbe doing or not doing of wblch they are invested with an official discretion — <. e, acts wbicb are not purely ministerial. Marbury v. Madison, 1 Crancb, 137 ; tJ. S. «. Seaman, 17 Howard, 230 ; U. S. «. Guthrie, Id., 284 ; Gaines v. Thompson, 7 Wallace, 347 ; The Secretary e. McGarraban, 9 Wallace, 298 ; Litchfield v. The Register & Receiver, Id., 575 ; Marquez v. Frisbie, 101 U. S., 473. And see Ex parte Reeside, Brunner, 571 ; U. S., ex rel. Warden v. Chandler, 2 Mackey, 527 ; U. S. -u. Whitney, 5 Id., 370 ; U. S. o. Bayard, Id., 428. " Such as counterfeiting, perjury, extortion, accepting bribes, &c. "As by Sees. 5339, 5341, 5345, 5346, 5348, 5356, 5385, Rev. Sts. See, as leading cases of this class of crimes, U. S. v. Carr, 1 Woods, 484, a case of tbe killing by a sol- dier of another soldier at Fort Pulaski, in 1872 ; U. S. v. Travers, 2 Wheeler, Cr. C, 490, a case of a killing of one marine by another at the Charlestown Navy Yard, In 1814 ; TI. S. V. Cornell, 2 Mason, 91, a case of the killing by a soldier of another soldier at Fort Wolcott, Newport, in 1810 ; also U. S. v. Clark, 31 Fed., 710, and U. S. v. King, 34 Fed., 302, similar cases at Fort Wayne and Fort Hamilton, respectively — all considered, as to the matter of their Justification and defence, in vol. I, ch. XVII, " Requirements of Mili- tary Discipline." And see tbe similar case of Kelly v. U. S., 27 Fed., 616 ; State v. Kelly, 76 Me., 331. " See Sees. 5439, 5456, 5488, 5490, 5491, 5492, 5495, 5496, Rev. Sts., and Act of March 3, 1875, making punishable embezzlement, larceny, &c., of public funds or other property. ""Cooley, Prins. of Const. Law, 123. "Ante, Ch. XXV. " See Ch, Six of Title LXX. Rev. Sta. 880 MILITARY LAW AND PKECEDENTS, posited,) which could not have been foreseen or guarded against." But by legis- lation of 1866, (Sec. 1059, Rev. Sts.,) the Court of Claims was empowered by Congress to hear and determine claims of disbursing officers for " relief from responsibility, on account of capture or otherwise," for public funds while in their charge ; and under this provision that Court has allowed claims of disburs- ing officers to be credited with amounts of funds taken from them by robbery ' or theft without fault or negligence on their part," as also with funds lost by the failure of a bank," and by fire.** In cases not coming within this provision disbursing officers will have in general no other recourse except to apply to Congress for a special act for their relief. Whether an officer can be made personally responsible for losses of public money incurred by his subordinates will depend upon the official relation which, under the existing law, they bear to him or to the United States. If 1375 they are his own appointees or employees, or merely clerks, &c., acting as his assistants, he will in general legally be liable for their deficits: If they are, equally with himself, distinctive officers of the United States, ap- pointed or commissioned by a common superior, the mere fact that they may exercise their functions under his direction will not, (in the absence of any law or regulation to the contrary,) render him pecuniarily responsible for their shortcomings, but they will themselves, on their bonds or otherwise, be personally holden for their respective losses." The civil liability of an officer to the United States for public funds may sometimes be conveniently enforced by way of a counter-claim or offset inter- posed on the part of the government in a case in which he has himself instituted suit in the Court of Claims for moneys claimed to be due him as pay, allowances, &c. Marked eases of such counter-claims adjudged against officers of the army are to be found in the recent decisions of that court." a. AMENABILITY TO OTHEB, MILITARY PERSONS — For acts as members of courts-martial. It is a general principle of law that a judicial officer cannot be made liable in an action for damages for any judgment, how- ever erroneous, that he may have rendered, provided he had jurisdiction of the case." So, while the members of a court-martial may be made thus liable to an officer or soldier tried thereby, where the court was without jurisdiction, or its proceedings or sentence were otherwise unauthorized and illegal,™ — for error merely in their rulings or judgment they are not subject to a civil action." Where indeed the judgment of the court is clearly shown to have been actuated by malice — as by personal hostility or injurious prejudice — a member or mem- bers implicated may be held liable in damages though the court had juris- 1376 diction of the case ; but this would be a rare condition. Suits against members of courts-martial have not been frequent- In the old and " See U. S. ». Freeman, 1 W. & M., 45. " Scott V. U. S., 18 Ct. CI., 1 ; Broadhead -v. U. S., 19 Id., 125 ; Wood v. U. S., 25 Id., 98. " Hobbs V. U. S., 17 Ct. 01., 189. " Hoyle V. TJ. S., 21 Ct. CI., 300. "Compare 14 Opins. At. Gen., 268, 474, 485, as to the liabilities to the United States, for public moneys disbursed, Ac, of the Commissioner of the Freedmen's Bureau and his subordinates. "" See, for example. Miller •». U. S., Montgonfery v. U. S., and Runkle v. U. S., 19 Ct. CI., 338, 370, 396. " Druecker v. Salmon, 21 Wis., 621. And see Mllllgan v. Hovey, 3 Bissell, 13 ; Tyler v. Pomeroy, 8 Allen, 484. ■*Thus, to cite an extreme case, if an accused dies under the infliction of an illegal sentence, the members of the court will be " liable to be hanged." Warden v, Bailey, 4. Taunt., 77. ■" See Vanderheyden v. Young, 11 Johns., 150. MIUTABT LAW AND PRECEDENTS. 881 often-dted English case of Frye v. Oglej — a suit by a naval officer against the president of a naval court-martial by which he had been tried, — ^the plaintiff recovered £1,000 damages, the court being adjudged to have exceeded and abused its authority in a most arbitrary manner."" In the later case, however, of Mann v. Owen,' in which an officer of the British army sued the president of a court-martial, (which had sentenced him to be dismissed,) on the ground that it had no jurisdiction, — having tried him, under the Article corresponding to our present Art. 62, for an act which he claimed was not within the purview of such Article,^ — the civil court held otherwise and gave judgment for the de- fendant. In the case of Jekyll v. Moore,' the officer who preferred the charges sued the president of the court-martial by which they were tried, the ground of action being that the court, in " fully and honorably " acquitting the accused, had reflected upon the charges as " malicious." But this was held by the civil court to be not an abuse of power on the part of the court-martial, but an exer- cise of an authority sanctioned by military law, and the action was not sus- tained. In the further English case of Hou^e v. Bentinck,* it was held that an alleged injurious statement in the opinion of a court of inquiry furnished no ground for an action of libel, by the officer claiming to be injured, against the president of the court; the opinion, rendered as it was to the proper militaiy superior, being a privileged communication. In this country, the principle of the liability to damages of the members of a court-martial acting without jurisdiction was recognized in a few early 1377 cases.' In the later and more Important case of Milligan v. Hovey* and others where the action was brought by a civilian who had been sentenced to death against the members of the military commission which tried him, (and the officers who caused his arrest, &c.,) judgment was given for the plaintiff on the ground that the proceedings of the commission had previously been held void for want of jurisdiction by the U. S. Supreme Court.' In view, however, of the fact that the defendants had acted in good faith under the orders of the President and that their proceedings had been approved by him, (evidence of which was admitted in mitigation of damages,) the actual dam- ages awarded by the jury were merely nominal. It has been noticed by Griffiths' that the fact that the court, in taking the action which has given rise to the suit, consulted and proceeded upon the opin- ion of its judge advocate, cannot affect the question of its legal liability. This is true ; the fact, however, is one which a court would be entitled to have con- sidered as showing good faith, upon the question of the quantum of damages. For executing an illegal sentence of a military court. That an officer who executes the sentence of a military tribunal which was without jurisdic- tion, or whose proceedings or judgment were otherwise illegal so that the sen- tence is invalidated, is a trespasser, and liable to an action for damages on the 100 McArthur, 229, 344 ; Tulloch, 92 ; Franklyn, 26. In Moore v. Bastard, 4 Tannt., 70, the officer recovered £300 in a suit against the president of his court-martial for an Illegal and arbitrary assumption of authority. [At the date of this case and that of Frye v. Ogle, courts-martial or their presidents exercised some of the powers now exer- cised by commanding officers.] ' 9 Barn. & Cres., 595. ' See the reference to this case under the " Sixty-Second Article " in Ch. XXV. •Bos. & Pull., (N. R.) 341. * 2 Brod. & Bing., 130. ' See Shoemaker v. Nesbit, 2 Bawle, 201 ; Duffield i;. Smith, 3 S. & K., 590, '3 Bissell, 13. ' In Em parte Milligan, 4 Wallace, 2. ■Page 42. And see O'Brien, 222, 223. 440S93 0-42-96 882 MTLTTABY LAW AITD FBECEDENTS. part of the person sentenced, has been asserted by the conrts In several cases. Suits of this Wnd, however, have been rare. To render the officer liable it Is not Indeed necessary that he should have acted with any personal animus against the accused. But in the absence of such animut, and where it appears that the defendant, though acting illegally, simply discharged what he believed to be an official duty, " vindictive " damages will not be awarded." For wrongs and injuries in general. Actions have not unfrequently 1378 been instituted, (more frequently, however, in England than in this country,) by officers or soldiers against superior officers for wrongs al- leged to have been done them by such acts as — ^unauthorized arrest and im- prisonment, malicious prosecution before a military court, preferring of false charges, libel in an official report, and illegal punishment or unjustifiable viol- ence. In cases of alleged unauthoriaed arrest and confinement, the civil courts have in general refused to afford relief except where the act was absolutely illegal," or where absence of probable cause, (in making the arrest, initiating the pro- ceeding, &c.,) and the existence of malice, on the part of the defendant, have been established by the evidence." Where the platntifC has failed to show these elements, the case has been regarded as one of purely military right or liability, which could properly be disposed of only by a court-martial, and the civil action has not been sustained. As remarked by the court in Dawkins v. Ld. Rokeby," " cases involving questions of military discipline and military duty alone are cognizable only by a military tribunal, and not by a court of law." Or, as it is more briefly expressed in another report of the same case," " military matters between military men are for military tribunals to deter- mine." Civil courts Indeed have always evinced a disinclination to enter upon controversies of this nature." 1379 In cases of this class arising in time of war stricter proof of absence of probable cause or malice will in general be required than in cases oc- curring in time of peace." • Wlae 1). Withers, 3 Cranch, 331 ; Dynes v. Hoover, 20 Howard, 65 ; Fisher v. McGlrr, 1 Gray, 45 ; Bell v. Tooley, 11 Ire., 605 ; White «. McBride, 4 Bibb, 62 ; Hutton v. Blaine, 2 S. & R., 78. u See Milllgan v. Hovey, 3 Blssell, IS. ■^ As an Instance of an officer without merits recovering damages because of an illegal- ity in the mere form of his imprisonment, see Lieut. Allen's Cases. Simmons § 752, 780. The fact, however, that he was without merits, having been duly convicted of crime, was held materially to affect his claim to damages. Id. " Sutton V. Johnstone, 1 Term, 493 ; Freer v. Marshall^ 4 Fost. & Fin., 485 ; Kelghly v. Bell, Id., 763 ; Dawkins v. Ld. Rokeby, Id., 806 ; Boughton v. Jackson, 18 Q. B., 378 ; Lieut. Blake's Case, 2 M. & S., 428. The most essential point to establish is the absence of probably canse, since from this the element of malice may generally be implied. Sutton ti. Johnstone. " 8 Law Rep. 271. " 4 Fost & Fin., 837. And fo a similar efFect, see Eeighly v. Bell, Id., 736 ; Freer v. Marshall, Id., 485 ; In the matter of Foe, 5 B. & Ad., 681 ; In re Mitnsergh, 1 B. & S., 400 ; Dawkins v. Paulet, 6 L. B., 94. " " I cannot help observing upon the extreme impropriety of this court, a civil court, unacquainted with military matters, coming to a conclusion upon matters which military men know best." Willes J. in Dawkins v. Rokeby. And see other cases cited in last note ; also Tyler v. Pomeroy, 8 Allen, 484. In the recent case of Holbrow v. Cotton, 9 Quebec L. R., 105, (an action of slander brought by a militia soldier against his com- manding officer for charging him with stealing an article of military property,) the court say : " All matters of complaint of a purely military character are to be confined to the military authorities. Military discipline and military duty are cognizable only by a military tribunal, and not by a court of law." " Warden «. Bailey, 4 Taunt., 66 ; Sutton v. Johnstone, 1 Term, 493. And see Tyler v. Pomeroy, 8 Allen, 484, MILITAB'Sc LAW AlTD FBECBDEKTS. 883 Malice may sometimes be inferable from a protracted arrest. In certain cases, however, of this class in which the ground of action was an arrest and confinement for an unreasonable period (several months) without trial, judg- ment was given for defendant where it appeared that the act was not " wanton or oppressive ; " — as where the defendant had himself no power to convene a court ; " or where the delay was caused by the absence of witnesses or an exigency of the service." So, the defendant was held not liable where a delay of two months to discharge a prisoner, after he had been acquitted, was oc- casioned by the failure of a superior to take final action upon the proceedings." In other cases, however, where malice clearly appeared, the plaintiff recovered damages for an unreasonably protracted arrest without trial. Thus in Hanna- ford V. Hun," where the plaintiff, when finally tried by court-martial, received only a reprimand, he recovered £300 damages. In Wall ^ v. Macnamara," a case of aggravated treatment under a protracted confinement, indicating a specially evil animus, the plaintiff was awarded £1,000. As to the act of preferring false and malicious charges, or engaging In a malicious prosecution, — this, in Cobbett's case, was held to constitute a valid cause of action." But charges against an ofiicer or soldier, made to a 1380 superior, not maliciously and causelessly but in good faith and the dis- charge of an official duty, are privileged communications, for which the preferring officer cannot be held legally amenable though the charges themselves be not finally sustained. It is not enough that they are not true; they must be wilfully untrue." So, a complaint against an officer, addressed to a competent superior, for the purpose of obtaining proper redress for a wrong done, constitutes no ground for a civil action. Thus where a creditor of an army officer made an appli- cation to the Secretary of War, with the view of enlisting his influence toward requiring the officer to pay his just debts, and stated therein facts derogatory to the officer, not however for the purpose of slandering him but of securing reparation, such complaint was held to be, not a libel, but a privileged communi- cation." So of any offlcial report made by an inferior to a superior officer, in which the acts of a third are injuriously reflected upon : — ^such a report, when made in good faith and in the execution of a duty, is held to be a privileged com,- munication and one upon which an action for damages cannot be based.*' On the other hand, in a case" where a statement in regard to the misconduct " Kelghly v. Bell, 4 Fost. & Fin., 763. " Lieut. Blake's Case, 2 M. & S., 428. " See Warden v. Bailey, 4 M. & S., 400. The mere fact that the party was acquitted does not establish that the prosecution was without probable cause. » 2 C. & P., 148. " 1 Term, 536. And see Swlnton v. MoUoy, Id. " Proceedings upon charges by Wm. Cobbett against Capt. Powell and other officers of the 54th Foot — Opinion of Law Officers, London, 1809. M Dickson «. Earl of Wilton, 1 Fost. & Fin., 419; Dickson v. Combermer*, 3 Id., 527 ; Kelghly v. Bell, 4 Id., 763 ; Mitchell v. Kerr, Kowe, 537. And see G. C. M. O. 19 of 1886. M Falrman v. Ives, 5 Barn. & Aid., 642 ; Rex v. Bayley, Bac. Abr., " Libel," A., 2. ^Dawkins v. Ld. Paulet, 9 B. & S., 768, 5 Q. B., 94. And see Home v. Ld. Bentlnck, 2 Brod. & Bing., 130 ; Oliver v. Ld. Bentlnck, 3 Taunt., 456 ; Beatson v. Skene, 5 Hurl. & Norm., 837 ; Gardner v. Anderson, 22 Int. Rev. Kec, 41 ; 11 Oplns. At. Gen., 142 ; 15 Id., 378 ; 415. It is scarcely necessary to add that, as held In the English cases, all evidence given before a court-martial or court of inquiry Is " absolutely privileged." Dawklns v. Ld. Eokeby, 8 Q. B., 55 ; Same v. Prince Edward of Saxe Weimar, 1 Q. B, D., 499. " Harwood V, Green, 3 C. & P., 141 — *60 damages awarded. 884 MILJTABY LAW AND PRECEDENTS. and incapacity of a master of a transport ship was made by an officer of tlie navy, not by a report addressed to the Government, but by an informal and unofficial publication, this mode of communication was held not privileged, but ground for an action for libel. In the leading American case of Maurice v. Worden, where the Superintendent of the Naval Academy was sued for an alleged libel in officially reporting to the Navy Department the gross mls- 1381 conduct of a subordinate, and judgment was given for the defendant, it was held by the Supreme Court of Maryland," that such a communica- tion was " privileged to the extent that the occasion of making It rebuts the presumption of malice, and throws upon the plalntlfC the onus of proving that it was not made from duty but from actual malice, and without reasonable and probable cause." Illegal punishment or unjustifiable violence. An action will not lie againsl an officer for an exercise, upon a subordinate, of discipline severe in itself, pro- vided it be sanctioned by military usage; otherwise where the severity is not thus sanctioned. Thus a naval commander was held not liable to damages for ordering a midshipman to the mast-head, this being a disciplinary punishment Justmed by the usage of the service." In several English cases, however, heavy damages have been awarded for illegal or excessive flogging inflicted upon Inferiors by the command of superior officers." In Barwis v. Keppel,'" where a regimental commander disapproved the sentence adjudged by a court-martial upon a sergeant as not being In his opinion sufficiently severe, and thereupon imposed a more severe one of his own, it was held that from such illegal act malice was to be presumed, which would have rendered the defendant liable in damages, except that for another reason the court was without jurisdiction of the offence. In the most marked English case of this class, that of Joseph Wall, commandant of the garrison and governor of Goree, in Africa, this official, for causing the death of a ser- geant by inflicting upon him summarily without trial, and without reasonable cause, eight hundred lashes, was, twenty years afterwards, brought to trial In England, sentenced to death and executed." 1382 In the American service, while officers of the army have not unfre- quently been brought to trial by cowt-martial for inflicting illegal punish- ment, or using unnecessary violence toward Inferiors," the instances of civil suits, as well as criminal proceedings, based upon such causes of action have been rare. In the leading case of Dinsman v. Wilkes,°° in which an officer of the navy was sued by a marine upon whom he had Imposed a corporal punish- ment, it was held by the Supreme Court that where in such a case the officer, (as the defendant in this case was found to have done,) acts within his dis- cretionary powers and without malice, he Is not amenable to civil proceed- "54 Md., 257. "Leonard v. Shields, 1 McArthur, 159. =" See the cases of Col. Bailey, Capt. Tonyn, and the officers of the Devon militia cited In the report of Warden v. Bailey, 4 Taunt., 70. See also Grant V. Shard, 4 Taunt., 84, where a superior, for striking an inferior officer and calling him a " stupid person " because he had failed to communicate an order as directed, was adjudged to pay £20 to the inferior. ■"2 Wilson, 314. "28 Howell, S. T., 51. Compare the case cited by Samuel (p. 272), of Major Mc- Kenzie, convicted by a criminal court of homicide in causing a mutineer to be "blown from a gun." " See Vol. I, Chapter XX, p. 678 — " Disciplinary Punishments." »t Howard, 89; 12 Id., 390. MItlTABY LAW AND PBECBDENTS. 885 Ings." In a case of another naval officer alleged to have exceeded hlB discipli- nary authority In assaulting and Imprisoning a subordinate at sea, an action of trespass was held to be maintainable in a State Court." But, as heretofore indicated, civil courts are reluctant to entertain this class of questions, which, except in a clear case of legal liability, belong rather to the province of the military authorities and tribunal. Cause of action resulting from negligrence. Where, in the performance of duty, an officer or soldier, unintentionally but through negligence, does any considerable injury to another officer or soldier, or to his property, the latter has his action for damages against the former in the same manner as would a dvUlan. Thus where a soldier, on skirmish drill, so negligently discharged his musket as to wound another soldier, he was adjudged liable for damages in a suit instituted on. account of the injury." 3. AMENABILITY TO SUITS BY CIVILIANS— Liability for abuse or excess of authority. It Is a general principle that the Government is 1383 not legally liable for unauthorized wrongs or injurious acts done by its officers (or soldiers) to or against civilians, though occurring while en- gaged in the discharge of their official duties." It is the officer (or soldier) therefore who Is personally amenable where he exceeds or abuses his authority, and thus commits a wrongful act to the injury of a civilian.'' And the absence of an intent to violate law cannot afCect the question of liability, though it may be material to the question of the quantum of damages. The English courts have been especially disposed to indemnify the citizen in this class of cases. The often-cited English cases of Mostyn v. Fabrlgas and Comyn v. Sabine, and Capt. Gambler's and Admiral Palliser'a cases, were early instances in which military or naval commanders were held liable in damages to civilians for personal injury or the seizure of private property, although the transcending of authority was apparently the result of zeal in the discharge of a sup- 1384 posed duty." The later cases of Cooke v. Maxwell," and Glynn v. Hous- •* Here may be noted the case of Freer v. Marsball, 4 Fost. & Fin., 485, In which a private sued his regimental commander for maliciously causing his discbarge from the regiment. It was adjudged that he could not maintain his suit, inasmuch as the com- mander had by law the power to discbarge at discretion, and had here also reasonable ground for the action taken, so that malice on bis part could not be presumed. "•Wilson V. Mackenzie, 7 Hill, 95. "' Weaver e. Ward, Hobart, 134. « Carpenter v. U. S., 45 Fed., 341 ; Gibbons v. U. S., 8 Wallace, 269 ; U. S. ». Lee ; 106 V. S., 196 ; In re Ayers, 123 U. S., 501-2 ; 19 Oplns. At. Gen., 24. And see U. S. v. Maxwell Land Grant Co., 21 Fed., 19. This principle has recently, (1891,) been affirmed in Head v. Porter, 48 Fed., 481, a suit brought by a patentee against an officer in charge at the Springfield Armory for infringement of his patent in the manufacture of breech-loading flre-arms. The defend- ant's plea that " all his acts In relation thereto were done under the orders of the Secretary of War and his superior officers, he having acted only as the agent of the government and under Its authority," and that it was the United States and not he that should be held liable, was overruled by the court. M " For a malicious exercise by a military officer of lawful authority, or for acts of a military officer, (or court,) In excess of authority, though done in good faith, toward those in the military service, and a fortiori toward those who are not, where the civil laws are in full force, the person injured " may " obtain redress In the ordinary way against the wrongdoer." Tyler v. Pomeroy, 8 Allen, 435. " Cowper, 161-181. Mostyn and Sabine were military governors of Monorca and Gibraltar. The former was adjudged to pay £3000 to a native Minorguin whom he had imprisoned without due cause and banished from the island ; the latter £500 for executing an illegal sentence of Hogging against a civil employee. Capt. Gambler had £100X) damages awarded against him for exceeding bis authority in pulling down the buildings of certain sutlers who sold liquor to the navy In Nova Scotia. The repre- sentatives, however, of Admiral Boscawen, under whose orders he acted, assumed the 886 MTT.TTABY LAW AUTD PBBCEDBNT8. ton," were of a similar character. An early and leading American case of die same class is that of Smith v. Shaw," in which a military commander, who had caused to be arrested and held for trial by court-martial a civilian who was not in fact subject to the military jurisdiction, was adjudged to be amenable to damages for the tort. Here are also to be classed the suits insti- tuted against military commanders, provost marshals, or other officers who during the late war made arrests with a view to trial by military commission, or executed the sentences of such commissions, in cases of persons held not to be subject to the jurisdiction of these tribunals." A more recent case of dam- ages awarded against an officer of our army who had acted in entire good faith though illegally, is that of Bates v. Clark," in which a captain of infantry was adjudged a trespasser for seizing liquor in a region supposed by him to be Indian country which was not so in fact. In a further case, — ^Waters v. Camp- bell," — theretofore remarked upon, damages were recovered by a civilian against a captain of the army, who, when acting in good faith in the line of duty, had held the plaintiff in arrest for a longer period than was authorized by the exist- ing statute law. In general, in the absence of statutory authority, a commanding officer 1385 would not be authorized in confining, temporarily and for safe keeping, a civilian offender in the guard house at a military post. But where the ofCence was clear, and no appreciable Injury was done the party, he would recover no more than nominal damages, if any." Ziiability for acts in suppressing riots. Inasmuch as such acts would in general give rise rather to criminal than to civil proceedings, this liability will be considered under the Title of — " Amenability to Criminal Prosecution in State Courts," post. Iiiabllity of inferior when acting under orders — ^Relative amenability of superior and Inferior. The material question has not unf requently been raised as to how far an inferior officer or soldier, sued or prosecuted on account of an act done by him in his military capacity, may justify under an order given him by a military superior. Of course where the authority of the superior is complete it shields all who duly act under him." An inferior in duly execut- ing a valid authority or order is protected much as is a sheriff by his precept, and if he proceeds upon probable cause and without malice, will in general be defence of tbe suit and paid the damages adjudged. Tbe cause of action against Admiral Palllser was the unauthorized destroying of fishing boats on the coast of Labrador. With these cases see Sutherland v. Murray, 1 Term, 538, in which a colonial judge of Minorca recovered £5000 damages against the military governor for Improperly suspend- ing him from office. In Swlnton v. Molloy, where the captain of a ship unadvisedly Imprisoned the purser three days " without Injury and then released him," he was held liable by Lord Mansfield for his " incautious though upright conduct." 1 Term, R., 637. " In this case the plaintiff, an American, recovered £1000 damages from Colonel Maxwell, GSovernor of Sierra Leone, who bad seized his factory on the Congo, upon suspicion of Its being used in the slave trade. Stocgueler, Hist. Brit. Army, 190. «2 Man. & Gr., 337. This was an action against the military governor of Gibraltar for a false arrest and Imprisonment imposed upon a civilian who had been mlstalcen for another person. Damages £50. "12 Johns., 257. " See Skeen v. Monkheimer, 21 Ind., 1 ; GrifBn «. Wilcox, 27 Id., 391 ; Johnson e. Jones, 44 Ills., 142; In re Kemp, 16 Wis., 369; Mllllgan v. Hovey, 3 Bissel, 13. And see Bean c. Beckwith, 18 Wallace, 610, a, case of a provost marshal who made an arrest In Vermont without adequate authority. «95 TJ. S., 204. «5 Sawyer, 22. " See Thompson v. The Stacey Clarke, 64 Fed., 534. "Teagarden v. Graham, 31 Ind., 422. MILITARY LAW AND PRECEDENTS. 887 Justified though he commit error." But where the order of the superior Is illegal, how far, If at all, can it serve as a defence to the subordinate who, ignorant of its illegality, executes it in good faith? At military law, indeed, the inferior, bound as he is at his peril to obey all orders not palpably illegal upon their face, may, if brought to trial for an act committed In obedience to an order, apparently legal but illegal in fact, plead in defence his obligation to obey, and such defence will in general be accepted as a sufficient answer to the charge." In some civil cases a similar view has been taken ; the order of the superior when apparantly regular and valid being held to protect the Inferior because he was bound to obey it." In some other civil cases the inferior 1386 is considered to be justified on the ground that he is, under the cir- cumstances, acting under duress or a quasi compulsion, much as a wife Is supposed to act by the compulsion of her husband." But in the great majority of the adjudications it has been held that an order which is in fact illegal — ^which commands the doing of an act which is unlawful or legally un- authorized — can, however regular, proper, or just it may appear on its face, protect no one concerned in the performance ; that the superior who gives it and causes Its execution, and the inferior who actually executes it as ordered, will both, or either, be liable In damages as for a trespass to any person ag- grieved,"" That the illegal order may have proceded from the highest authority of the government — may have been in fact given directly by the President as Commander-in-chief — cannot render it of any greater eflBcacy in protecting the subordinate who acts upon it." In this class of cases, however, the inferior, if he has acted In good faith, will ordinarily be charged with but slight or normal damages." On the other hand the superior, if sued, will, as the principal offender, be held to a stricter ac- countability " and made liable for all such acts of the inferior or inferiors of the command, by whom his orders were executed, as were within the scope of such orders." A superior, however, cannot be made responsible 1387 for the personal negligence of a subordinate in executing an order," or « Despan v. OIney, 1 Curtis, 306 ; Wilkes y. Dinsman, 7 Howard, 89 ; Hawley v, Butler, 54 Barb., 490 ; Ruan v. Perry, 3 Calnes, 120. '• See Digest, 28 — " The Twenty-First Article." " See Higgs v. State, 3 Cold., 85 ; Trammell v. Bassett, 24 Ark., 499 ; Taylor v. Jenkins, Id., 337. These Indeed were cases occurring In time of war, when the obligation of the Inferior to obey Is more imperative than In peace. See Bates v. Clark, 95 U. S., 204. « McCall V. McDowell, Deady, 233 ; Wltherspoon v. Woody, 5 Cold., 149. But see U. S. V. Greiner, 4 Phllad., 396. " Harmony v. Mitchell, 1 Blatchford, 356 ; Clay ■». TI. S. Devereux, 25 ; Holmes v. Sheridan, 1 Dillon, 351 ; Bates v. Clark, 95 U. S., 204 ; U. S. v. Carr, 1 Woods, 480 ; Com. V. Blodgett, 12 Met., 56 ; U. S. i). Greiner, 4 Philad., 396 ; Skeen v. Monkhelmer, 21 Ind., 4 ; Griffln v. Wilcox, 27 Id., 391 ; State -o. Sparks, 27 Texas, 632 ; Koonce «. Davis, 72 No. Ca., 218 ; Stanley v. Schwalby, 85 Texas, 348. So, at criminal law, a shoot- ing without sufficient cause, (as for direspectful words merely,) by one soldier of another, resulting In the death of the latter, at the order of an officer, is " murder both In the officer and the soldier." U. S. v. Carr, 1 Woods, 480. " Little V. Barreme, 2 Cranch, 179 ; U. S. ». Buchanan, 8 Howard, 105 ; Bifort v. Bevlns, 1 Bush, 460 ; Richardson v. Crandall, 47 Barb., 335 ; Griffln v. Wilcox, 27 Ind., 391 ; Cooley, Prins. Const. Law, 119, 157. And see Head e. Porter, 48 Fed., 481, cited ante. "State V. Sjmrks, 27 Texas, 632. It may be otherwise, however, In a criminal case. Thus where a soldier fires and takes life In obedience to an unlawful order, the homicide is not reduced to manslaughter, but is murder. D. S. v. Carr, 1 Woods, 480. » Trammell v. Bassett, 24 Ark., 499 ; State v. Sparks, 27 Texas, 617. " Bla V. Smith, 5 Gray, 122 ; Taylor v. Jenkins, 24 Ark., 337. " See Regina v. Hutchinson, 9 Cox, 555 ; State v. Sutton, 10 E. I., 159 — cases of homicide caused by negligence on the part of subordinates in executing orders. 888 MILITARY LAW AND PEECEDBNIS. for ucts done by the latter on his own responsibility." If, Indeed, he expressly ratifies the same by his own action, he will be liable." In justifying himself by the order of a superior, in a civil suit instituted against him, the inferior need not show that the order was a written one: a verbal order if explicit will be of equal efEect." Nor need he exhibit the com- mission of his superior or prove his appointment as such : it will be sufficient to show that the superior publicly acted and was recognized in the capacity ascribed."' Liability for mode of executing' an order. An order may be legal, but its mode of execution the reverse. Thus, in the case of an arrest, only the proper degree of force should be employed ; otherwise the officer or soldier executing It becomes civilly amenable."' So an unduly severe or inappropriate confine- ment may, of itself or with other circumstances, constitute ground of action. Thus a civil prisoner is not in general to be subjected to the same restraint or exactions as a soldier," nor a political prisoner to the same as a criminal." So, holding a prisoner confined for an unreasonable or illegal period will render the responsible official liable to suit." 1388 Measure of damages. Upon this point, already noticed, it need only be added that where. In a suit by a civilian against an officer, or soldier, damages are awarded to the plaintiff, the quantum of the same will depend mainly upon the animus of the defendant as developed by the testimony .*" Where it ap- pears that, though under a mistake as to the law or facts of the case, he acted in the honest discharge of what he reasonably believed to be his duty, the dam- ages should in general be no more than compensatory, i. e. enough to cover the actual loss or injury to the plaintiff. Where it is shown that the- defendant acted maliciously, i. e. with an intent to injure or other malevolent motive, or wantonly, the damages may properly be exemplary or punitive." Courts will Indeed set aside verdicts awarding excessive damages. Thus, in the early case of McConnell v. Hampton," (1815,) where the jury awarded $9,000 as damages to a civilian, against a military commander by whom he had been un- justifiably arrested, confined and brought to trial by court-martial for alleged giving information to the enemy, &c., the court set aside the verdict as un- reasonable and excessive. In the more recent case of Waters v. Campbell," referred to under a previous head. It was ruled by the court that the damages given, $3,500, were excessive, and that there must be a new trial on this ground " Nicholson V. Mounsey, 15 East, 383. " Smith V. Shaw, 12 Johns., 257. •» Pollard V. Baldwin, 22 Iowa, 328. •1 Eei V. Gardner, 2 Camp., 513 ; Lebanon v. Heath, 47 N. H., 359. Hardage v. Coff- man, 24 Ark., 256. " This rule of evidence applies with more force to military than to civil ofiScers. Soldiers in many cases are placed under the command of officers of whom they know nothing ; they are continually being changed from one command to another ; and should they be required to produce the commissions of their commanding officers, or even to prove that they had ever been commissioned, they could rarely indeed sustain a plea of justification for any act done in obedience to orders." Jones i/. Johnson, 24 Ark., 260. " McCall V. McDowell, Deady, 233. "Waters v. Campbell, 5 Sawyer, 17 ante. •* McCall 1). McDowell, ante. "= Hawley v. Butler, 48 Barb., 10 ; In re Carr, 3 Sawyer, 316 ; Waters v. Campbell, ante. •» Wall V. McNamara, 1 Term, 537. " Walker v. Crane, 13 Blatchford, 1 ; Milligan v. Hovcy, 3 Bissell, 14 ; McCall v. McDowell, Deady, 233 ; Holmes v. Sheridan, 1 Dillon, 351 ; Bates v. Clark, 95 U. S., 209. « 12 Johns., 234. "5 Sawyer, 22. MILITARY LAW AND PRECEDENTS. 889 unless the plaintiff consented to a reduction of the same to $2,000, which he thereupon did. The relative proportion of damages properly adjudged where a superior who issued an order, (held to be illegal or unauthorized,) and an inferior who exe- cuted it, are sued together, has been indicated above. Liability for injuries in. time of war. For an act done jure telli, or for the exercise of a belligerent right, an officer or soldier cannot be called 1389 to account in a civil proceeding." Thus an officer is not properly liable to a suit for the seizure or destruction, in an adequate emergency of war, or in the course of the performance of military duty in war, of the private property of individual citizens." So it has been held that a soldier was not liable to prosecution for shooting and killing, under proper orders, a " bush- whacker " or guerilla, in the late war, in Tennessee." The existence, how- ever, of war will not, — as heretofore indicated under Past II — justify wanton trespasses upon the persons or property of civilians, or other injuries not sanctioned by the laws or usages of war," nor will it justify wrongs done by irresponsible unauthorized parties." For such acts the offending officer or soldier may be made liable in damages. But in general, in time of war, a greater discretion is conceded to commanders, and to military persons execut- ing orders.'" Obliged as they are to act promptly upon emergencies," it would not be fair to hold them to the same strict accountability before the courts as for acts in disregard of private right in time of peace. 1390 Liability on public contracts. An action will not lie against an officer of the army on a contract duly made by him for the United States in an official and representative capacity." He is not personally bound upon such a contract, but the United States only, and recourse can be had thereon to the United States alone; a suit in the Court of Claims being the usual form of " Com. «. DoIIand, 1 Duvall, 182 ; Soyle v. Armstrong, 2 Id., 533 ; Price v. Poynter, 1 Bush, 387 ; Bell v. L. & N. R. R. Co., Id., 404 ; Safford v. Mercer, 42 Ga., 556 ; Ford v. Surget, 46 Miss., 130; Coolidge v. Guthrie, 8 Am. L. Reg. (N. S.) 22; 1 Opins. At. Gen., 255. The common law will not " undertake to rejudge acts done flagrante bello in the face of the enemy." Tyler v. Pomeroy, 8 Allen, 484. " Ever since the case of Dow V. Johnson, 100 U. S., 158, the doctrine has been settled In the courts that. In our late civil war, each party was entitled to the benefit of belligerent rights, as in the case of public war, and that, for an act done in accordance with the. usages of civilized warfare, under and by military authority of either party, no civil liabllty attached to the officers or soldiers who acted under such authority." Freeland v. WUliams, 131 U. S., 416. " Harmony v. Mitchell, 1 Blatchford, 549 ; Do., 13 Howard, 115 ; Holmes ». Sheridan, 1 Dillon, 351 ; Yost v. Stout, 4 Cold., 205 ; Thomasson v. Glisson, 4 Heisk., 615 ; Drehman ». Stifel, 41 Mo., 184 ; Bryan v. Walker, 64 No. Ca., 141 ; Koonce v. Davis, 72 Id., 218 ; Broadway v. Rhem, 71 No. Ca., 195. "JSa; parte Hurst, 2 Flippin. 510. " Hough V. Hoodless, 35 Ills., 166 ; Christian Co. Ct. v. Rankin, 2 Duv., 502 ; TerrlU V. Rankin, 2 Bush, 453 ; Lewis v. McGuire, 3 Id., 202 ; DIUb v. Hatcher, 6 Id., 606 ; Riggs V. State, 3 Cold., 85 ; Merrltt v. Mayor, 5 Id., 95 ; Bowles v. Lewis, 48 Mo., 32 ; Williamson v. Russel, 49 Id., 185. " Worthy v. Kinamon, 44 Ga., 297, Hogue v. Penn., 3 Bush, 663 ; Branner v. Felkner, 1 Heisk., 228 ; Cochran v. Tucker, 3 Cold., 186. " Sutton V. Johnstone, 1 Term, 493 ; Wall v. McNamara, Id., 536 ; Olmstead's Case, Brightly, 9 ; HefEerman v. Porter, 6 Cold., 391. " In war, " military commanders must act to a great extent upon appearances. As a rule they have but little time to take and consider testimony before deciding." V. S. V. Diekelman, 92 D. S., 527. " Macbeath v. Haldimand, 1 Term, 172 ; Rice v. Chute, 1 Bast, 579 ; Crowell v. Crispin, 4 Daly, 100 ; Worsley, Civil Remedies for Military Offences, p. 6. That even V. S. Courts will not enjoin executive offlcerg of the government from performing public contracts, see 1 Opins. At Gen., 681 ; 2 Id., 178 ; 3 Id., 667. [State courts of course cannot do so. 15 Id., 624 ; 16 Id., 257 ; Digkst, 247.] 890 MILITARY LAW AND PRECEDENTS. proceeding. Nor can an officer be sued upon a contract of the Government which it is simply his part to execute. Thus a paymaster whose business it is to pay certain troops or employees cannot be sued by an individual for his pay or wages." An officer Is liable to an individual who is a party to or is inter- ested in a public contract, only where he has acted without authority or ex- ceeded his authority under or in regard to the same, thus making himself personally responsible : ™ here, as in other cases of tortious acts of public offi- cers, the government cannot be made liable, but resort must be had to proceed- ings against the officer.™ It may be remarked that where the Head of an Executive Department of the Government enters, as he may legally do," into a contract with an officer of the army, (or navy,) as, for example, with one who is the patentee of an inven- tion of which the Government desires to avail itself, the relation and liability to the United States of the officer are precisely such as would be those of a civilian contractor in similar circumstances. 1391 Liability of offi.cer as garnishee. Nor can an officer of the army, (or other public officer,) be sued as garnishee or trustee, for or on account of public money in his official possession. Money in the hands of a disbursing officer for disbursement remains public funds till actually paid over to the person or persons entitled to receive it as due them. To allow it to be at- tached would be to divert the moneys of the United States from the specific purposes for which they have been appropriated by Act of Congress, and, while a violation of law, would also seriously embarrass, and so far suspend, the operations of the Government. A government cannot properly be placed In the position of a stakeholder between parties to whom it owes money and their assignees or creditors. Thus, upon a principle of public policy as well as law, proceedings against public officers by way of garnishment, trustee process, or foreign attachment, as the form is variously designated, are not legitimate and will not be sustained by the courts.*" Liability under writ of habeas corpus — Form of return. Military officers are not unfrequently made respondents in civil proceedings by the service upon them of writs of habeas corpus, sued out by or In behalf of enlisted men or military prisoners claiming to be discharged from the military service or from military custody, on the ground of Illegal enlistment or absence of jurisdiction or authority over them on the part of the military authorities. State courts, as it was finally adjudged and settled, in 1871, by the Supreme Court of the United States," have no power whatever to discharge such persons when duly held by the authority of the United States. Should any State or municipal tribunal issue the writ in such a case, while the officer In charge of the petitioner and upon whom service Is made Is not, strictly, required to make any return or " See Carter v. Hall, Starkie, 361, in which It was held that a purser's steward could not recover his pay by a suit against the purser. " Richardson v. Crandall, 47 Barb., 335 ; Crowell «. Crispin, 4 Daly, 100 ; 2 Oplns., At. Gen., 661. «» Johnson -v. V. S., 2 Ct. CI., 391; TJ. S. v. Marwell Land Grant Co., 21 Fed., 19; 12 Opins. At. Gen., 397. As to the effect of the statutes regulating the making and execution of contracts for the army, the authority of officers concerned In the same, &c., see Diqbst, 275-307, Title — " Contract." a Burns v. V. S., 4 Ct. CI., 113 ; Do., 12 Wallace, 246 ; 20 Oplns. At. Gen., 329. "Buchanan v. Altxander, 4 Howard, 20. And see Averill v. Tucker, 2 Cranch, C. C, B44 ; Derr v. Lubey, 1 McArthur, 187 ; 1 Opins. At. Gen., 604 ; 3 Id., 605, 718 ; 5 Id., 560, 759 ; 10 Id., 120 ; 13 Id., 566 ; Digest, 428. " Tarble's Case, 13 Wallace, 497 — affirmed In the recent case of Robb v. Connolly, 111 V. S., 632-634. And see In re Robb, 9 Sawyer, 582-588. The case of Tarble is cited in full in DioKST, 433-434, and note. MILITARY LAW AND PKECEDENTS. 891 response to the same, he will yet, as a matter of comity, always properly do so, so far as to advise the court that he holds the petitioner by the authority 1392 of the United States, as an enlisted soldier, military convict, &c., — setting forth In brief th* status of the individual. He will decline, however, In respectful terms to produce the body of the petitioner before the court, on the ground stated of Its want of jurisdiction over the subject-matter." On the re- turn day of the writ, he will properly appear and present his return, whereupon the court will In general as a matter of course dismiss the proceeding. Should the State court assume jurisdiction and commit the officer for contempt, he will forthwith sue out a writ of habeas corpus for his own release in the U. S. Circuit or District Court. If the State authorities attempt to-take the soldier from military custody, they should be prevented by the use of such military force as may be necessary for the purpose. Where, on the other hand, an officer of the army is served with a writ of habeas corpus Issuing from a court of the United States, he will make full return to the same, setting forth all the facts of the case and the authority under which the petitioner Is held, and on the return day will appear with the body of the petitioner before the court to abide by its order thereupon." Defence and indemnification by the government of officer sued, &c. As has been already remarked, an action will not in general properly lie against a public officer In his representative capacity," and where he is sued in such capacity, or as a nominal defendant in a case in which the United States is the party in interest, it will properly devolve upon the Government to assume the defence of the case and bear the expenses of the proceeding." Where a public officer is sued on account of an alleged wrong or Injury committed In the discharge of official duty, the general rule is that he 1393 must provide for his own defence," the question of indemnification for his expenses, or for damages recovered against him, being left to be determined by the law and facts as developed in the investigation. Where military persons have been or are about to be sued or prosecuted on account of acts done in the performance of their duties, their proper course, If believing and desiring that their defence should be assumed by the United States, Is to apply for counsel, (reporting the facts,) as prescribed by par. 1057 of the Army Regulations, to the Secretary of War, who, if deeming the application reasonable, will, under the existing law, refer the question, whether counsel can legally or properly be employed in the case by the United States, to the Department of Justice. Upon the Attorney General as the head of that Department, on its establishment by the Act of June 22, 1870, c. 150," was exclusively devolved the authority to provide for the defense of public officers in civil proceedings. Whether he will decide to do so In any particular case will In general mainly be determined by the amount of "interest," pecuniary or otherwise, which the United States may have in the case or the questions in- " See par. 1061, Army Regulations ; 13 Opins. At. Gen., 451. *■ See forms of return in Appendix. " 6 Opins. At. Gen., 7, referring to a replevin suit commenced against a public officer for property as in his possession, where the possession was in fact that of the United States. " 5 Opins. At. Gen., 397. " To avoid any doubt about the method of payment of the expenses of these officers, it Is better In all cases that when they are the nominal defendants In suits brought against them In the official discharge of their duties, they should be subpoenaed on the part of the government, who is the party In interest, to appear as witnesses." Circ. No. 3, (H. A.,) 1887. <^ 5 Opins. At. Gen., 397 ; 6 Id., 77, 220. " See a. 17 of that Act, as incorporated in Sees. 189, 366, Bev. Sts. 892 MILITARY LAW AND PRECEDENTS. TOlved therein," considerations of justice to tlie individual being also taken into account." For indenmification for any damages other than nominal that he may be required to pay, as also for the expenses of his defencg where not assumed by the United States, the officer will in general have no recourse except to Con- gress.'"' That body has from time to time passed special Acts for the 1394 relief of officers of the army or navy, who have been subjected to pecu- niary losses on account of suits for acts done in the honest discharge of duty.'; AMENABILITY TO CMMINAL PBOSECTTTION IN STATE COXTBTS. Except where the act was committed upon a reservation or other premises within the exclusive jurisdiction of the United States, an officer or soldier is liable, for a criminal offence against the local law, to prosecution in the courts of the State or Territory, in the same manner as is a civilian. His being in the military service of the United States affects in no degree his amenability to such prosecution; nor is it affected by the fact that he was at the time of the offence engaged in the performance of military duty, if in such performance he exceeded his authority or was culpably negligent." The principal occasions and acts upon or for which a military person may render himself liable to indictment in the local criminal courts have already been noticed in Chapter XXV, of Part I, (in reviewing the separate Articles of war,) and elsewhere, and need not be recapitulated. Prosecutions of officers and soldiers for crimes in State courts are not indeed of frequent occurrence. Per an exceeding of authority — A recent illustration. What would prop- erly be the criminal liability of an officer of the army for an exceeding or abuse of authority is illustrated in the recent case of Commonwealth v. Hawkins and Streator. In this case, which originated during the strike in Pennsyl- vania, in July 1892, and which was tried in the Court of Common Pleas of that State, the defendants were officers of militia indicted for assault 1395 and battery, committed by way of summary punishment, without trial, upon the person of one lams, a private of their command, by hanging "See Sees. 361, 363, 364, 366, 367, Rev. Sts.; Digest, 310. And compare 6 Opins. At. Gen., 77. The question will also be practically affected by the state of the oppro- pWation available for the purpose. " Attorney General Black, in 9 Opins. At. Gen., 52, observes as follows : — " When an oflScer of the United States is sued for doing what he was required to do by law, or by the special orders of the Government, he ought to be defended by the Government. This is required by the plain principles of justice as well as by sound policy." It has therefore " been the uniform practice of the Federal Government, ever since its founda- tion, to take upon itself the defence of its ofBcers who are sued or prosecuted for executing Its laws." And he cites many instances of such practice. He further holds, (p. 53,) that where such an oflBcer carries on his own defence without appealing to the government pending the cause, he has a just claim for the sum that he may be " out of pocket," though he is " not to be allowed any unreasonable or extravagant expenses." And see 12 Id., 368. "See 6 Opins. At. Gen., 77; 14 Id., 71. " Thus, by the Act of Feb. 11, 1880, the Secretary of the Treasury is directed to pay to Capt. J. B. Campbell, U. S. A., the amount of the judgment and costs In the case of Waters v. Campbell, (U. S. Circuit Ct., 5 Sawyer, 17, hereinbefore referred to,) " said judgment " — it is added — " having been obtained against him, and costs Incurred by him, while acting In the line of bis duty as Captain, &c." Later, by the Act of August 5, 1882, t. 390, making appropriations for the Navy Department, &c., the sum of seven hundred and fifty dollars was appropriated " for legal expenses incurred by Rear Admiral John L. Worden, in defending the suit of Bernard Maurice against him for alleged damages caused by the official acts of said Admiral Worden in the discharge of his duty while Superintendent of the Naval Academy In 1872." " Sec military cases referred to, ante, p. 967 [ ?] — " Manslaughter." MrUTABY LAW AND PRECEDENTS. 893 him up by the thumbs and subjecting him to have his head shaved and be drummed out of camp. Under the peculiar rulings of the judge the jury rendered a verdict of acquittal. The offence of lams, on account of which these punishments were inflicted, had consisted, not in a resort to violence or a doing of any overt act, but In the speaking of words only. The words used were foolish, unmllltary and Intemperate, and, (in expressing sympathy for a person of the class which the militia was intended to oppose and restrain, who had attempted to take the life, by shooting, of the manager of a manu- facturing company against which the strike was mainly aimed,) indicated a refractory spirit. But there was at the time no mutiny or attempt at mutiny in the command, nor any insubordination or disorder whatever ; nor did the utterance of lams produce any breach of the peace or other disturbance. Yet because the militia had been called out by the Governor to act as a posse in aid of the sherifC of Allegheny county, and to assist in maintaining the peace and suppressing a formidable riot, the judge charged the jury that the officers and men of the command were " subject to the same general principles of law by which any arm,y in actual war is governed," were "governed by the same rules that would prevail in case of actual war," and that the punish- ments imposed, not being shown to have been actuated by malice or ill will toward the individual, were authorized and legal. Indeed the jury was charged that Inasmuch as Streator, the commander of the regiment and principal de- fendant, was actuated only by proper motives, it was " very important that he should not be found guilty!" In the opinion of the author this view was exaggerated and unsound. The misconduct of lams was not of marked gravity, nor did it produce any appre- ciable effect. He did not attempt to avoid arrest, and might readily have been held and brought to trial, and, upon conviction, been awarded a penalty ade- quate to his offence. The course taken by his superiors was not justified by necessity or by the requirements of military discipline. It was opposed to military law and precedent, and in the army would not have been sanctioned or excused. Had the defendants been army officers, their conviction by the State court and consequent reasonable punishment would have been accepted as legal and just. 1396 For a killing, &c., in suppressing a riot. The English civil courts and authorities, in passing upon the conduct of public officials In the presence of riots, — as in the cases of the Gordon riots of 1780 "^ and the Bristol riots in 1831,°° — while affirming that the firing by the military upon a mob can be justified " only on proof of extreme necessity," " have however held such officials to a legal responsibility for the due suppression of lawless assem- blages." So military officers who have failed to act with due vigor when called upon to disperse such gatherings and protect property from their violence, have " Parliamentary History, vol. xxl, p. 688. " Rex V. Plnney, 5 Car. & Payne, 254 ; Rex v. Kennett, Id., 282. And see Reg. t*. Neale, 9 Id., 431. " See Worsley, Juridical Society Papers, vol. 3, p. 3 ; also Case of Porteous, Prender- gast, 165. " See Rex i;. Kennett, ante, and other cases above cited. " It is one result of the law, as laid down by the foregoing authorities, that a military officer refusing or fall- ing, on a proper occasion, to bring into action against a riotous or an insurrectionary mob, the force under his command, would be guilty of an indictable offence at common law, and might be prosecuted accordingly for breach of duty, independently of his lia- bility to military censure." Prendergast, 177-8. The status, however, of officers under the British law differs here from the position of officers of our own army in similar circumstances, in that, under the former, " the primary duty of preserving public order rests with the civil power," and the officer com- 894 MILITAEY LAW AND PRECEDENTS. been severely disciplined by the military authorities." In this country the sentiment has gained strength that prompt and decided action on the part of the military in dealing with a riotous assemblage, is the only rational 1397 or efEectual course, "° and the courts would doubtless in most cases justify an oificer or soldier in the shooting down, in the discharge of his duty, of a leader of a mob engaged in an aggravated breach of the peace and defiance of the laws. One reason why there have been so few prosecu- tions in our State courts on account of the consequences of firing upon rioters, probably is that the statutes of a considerable number of the States, in recogni- tion indeed of a common law principle,' expressly disclaim the holding liable of officials and others concerned in such firings. Thus, in the statutes of Massachusetts,^ New Hampshire,' Rhode Island,' New Jersey,' Ohio,' Virginia,' West Virginia,' Missouri," Wisconsin " and Oregon," It is declared that where, in the suppression of a riot, a rioter or other person, (even a mere spectator,) Is killed or injured, the magistrates or oflicers duly engaged, or persons assist- ing, in the suppression, or in the dispersing or apprehending of the rioters, shall be " held guiltless," or — as it is sometimes expressed — " held guiltless and justified in law," or " held guiltless and absolutely indemnified." In the statute of Connecticut," the language is — shall be "discharged from all 1398 civil or criminal liability therefor ; " in that of Vermont " — " shall not be liable in a civil or criminal proceeding." In the statutes of Cali- fornia " and Idaho," " homlfcide " is declared to be justifiable when committed mandlng the military is In general placed " under the orders of a maglstrkte." [Thrlng — " Summary of the law of riot and insurrection," Manual of Military Law, ch. xiii.] But with us It ia now rare that the military serves as a posse comitatus: In general it acts by the direction of the President under the Immediate orders of its own commanders. Thus, in the suppression of an Insurrection or unlawful assemblage, a commanding officer of our army would in general be vested with a greater discretion while at the same time charged with a higher responsibility than would such an officer in the British practice. " See the account given by Hough (P.) 581-4 of the trials by court-martial of Col. Brereton and Captain Warrington for their shortcomings on the occasion of the riot at Bristol, (October, 1831.) Captain Warrington was sentenced to be cashiered. Col. Brereton, under the criminating evidence adduced, committed suicide. 100 " It ig better to anticipate more dangerous results by energetic intervention at the Inception of a threatened breach of the peace, than by delay to permit the tumult to acquire such strength as to demand for its suppressioh tliose urgent measures which should be reserved for great extremities." 2 Wharton, brlnilnal Law § 1555. See G. O. 23 of 1894, cited on p. 1351, where a riotous mob Is characterized (though the term Is legally incorrect,) as a public enemy." On the occasion ttf the Railway Strilte of July, 1894, a blow with the sword administered to a leader of the obstructionists at Living- ston, Montana, Inflicting a slight wound, by the Captain commanding the detachment of U. S. troops, contributed most materially to putting an end to the existing formidable obstruction and opening the Northern Pacific Railroad to the transportation of the tr. S. mails and the free transit of passengers. > See Chitty, Cr. Law, vol. 3, p. 486 ; 1 Wharton, Id. § 40T. "Public Laws, p. 1163-4. 'General Laws, i>. 588. * Public Statutes, "p. 670. 'Revision of Statutes, p. 979. "Revised Statutes, Sec. 6895. 'Code, p. 378. 'Code, p. 897. • Revised Statutes, Sec. 3770. "Annotated Statutes, p. 2269-70. " General Laws, p. 872. •« General Statutes, Sec. 1504. And it is similarly specially provided in regard to the militia in Sec. 3139. " Revised Laws, Sec. 4224. "Penal Code i 197. "Bevised Statutes, Sec. 6670. MILITARY LAW AND PRECEDENTS. 895 by any person in lawfully suppressing a riot, " or," as It is added In the enact- ment of the latter State, " in lawfully keeping or preserving the peace." In a few of the States the laws even contain an explicit prohibition of the use of blank cartridges by the militia in dealing with rioters. Thus in Indiana," It is provided that no officer of militia shaU, " under any pretence, or in com- pliance with any order, fire," (i. e. cause to be fired by his command,) "blank cartridges on a mob under penalty of being cashiered by sentence of court- martial." In the Revised Statutes of Missouri," the laws treating of the militia contain the significant provision — " Blank cartridges shall never be used except on driU." In view of such legislation and of the sentiment which it reflects, it is prob- able that members of the army, employed by the President under Sec. 5298, Rev. Sts.," for example, and concerned '•> the killing or wounding of persons engaged In a strike, or other unlawful at,.jmblage, in obstruction of the'execu- tion of the laws of the United States, would be held by the State courts to have but performed a public duty, and be charged with no more liability than would the State militia under similar circumstances. The general rule of pro- ceeding of troops so employed, whether regulars or militia, and which the courts would, it is believed, approve and ratify, should simply be — 1st. To present themselves forthwith at the front with such an appearance and mani- festation of arms and discipline and authority as to overawe and restrain the lawless assemblage before them ; 2d. If overt acts of violence and obstruction are persisted in, to disperse the actors with the bayonet ; " 3d. To fire upon them where the bayonet proves ineffectual. 1399 There is now in force no statute of Congress under which an officer or soldier of the army, prosecuted or sued in a State court, on account of an act performed in the line of his duty, or in a military capacity, can have the proceedings removed to a court of the United States. III. OTHER CIVIL RELATIONS OF THE MILITARY. EPrECT IN GENERAL OP THE MILITARY STATUS. Not only in time of war, but frequently also in time of peace, the officers and soldier.* of the army are so isolated by the exigencies and obligations of the military service that they are not in a position to exercise the common rights of the citizen and do not become subject to his burdens. BESTRICTION OF CIVIL BIGHTS BY V. S. STATUTE. They are also debarred from exercising certain of such rights by express legislation of Con- gress. Thus, by Sec. 1222, Rev. Sts., officers of the army on the active list are In- hibited from holding "any civil offlce;" their commissions being "vacated" upon their accepting or exercising such office.^" By Sec. 1223, Rev. Sts., 1400 aU officers of the army, whether active or retired, are specially precluded from holding diplomatic or consular offlce; the accepting or holding of " Revision of 1894, Sec. 7373. "Revised Statutes, Sec. 6981. "Ante, page 864. " " As a general lule the bayonet alone should be used against mixed crowds In the first stages of a revolt." G. O. 23 of 1894, cited on p. 1351. " As to the construction and effect of this statute, see cases in Digest, tit. " Civil Offlce ; " also 18 Opins. At. Gen., as to the acceptance by Col. GUmore, Corps of Engi- neers, of a certain municipal offlce In Philadelphia. In Clrc, No. 4, (H. A.,) 1890, It is ruled by the Secretary of War as follows — " Any office created by State statutes is, within the spirit of the law quoted above, a civil offlce, and an offlcer of the Army on the active list cannot lawfully accept or hold such an offlce whether In State military organizations or otherwise." Exceptions from the operation of Sec. 1222 can of course be authorized only by Con- gress. See an instance of such an exception, In a case of an engineer offlcer, author- 896 MILITAEY LAW AND PRECEDENTS. such office being declared equivalent to a resignation of the military office, which thereupon becomes vacant." By Sec. 1224, Rev. Sts., officers of the army are precluded from being employed on civil worlis or internal improvements, and from engaging in the service of an incorporated company, if such employ- ment shall involve a separation from their regiments, &c., or " otherwise Inter- fere with the performance of their military duties proper." " By Sec. 1860, Rev. Sts., as amended by the Act of March 3, 1883, all military persons, except retired officers, are prohibited from being elected to or holding civil offices or appointments in Territories." By the same Section it is declared that no mili- tary person " shall be allowed to vote in any Territory by reason of being on service therein, unless such Territory is, and has been for six months, his permanent domicile." And by Sees. 1996, 1998, Rev. Sts., deserters are placed under a disability to hold office under the United States, or exercise other rights of cittzenship." RESTRICTION BY STATE LAWS. So, the constitutions or laws of some of the States disqualify military officers in whole or in part from holding office under the State; " or restrict their right to vote by declaring in effect that they shall not gain a residence or habitation, for that purpose, merely by being stationed therein. In the absence of such provisions, a retired officer or 1401 soldier may hold such office; and any officer or soldier may vote if only he has resided in, or inhabited, the State, county, &c., for the requisite period. While, as a general rule, an officer or soldier on the active list of the army neither acquires nor loses a residence by reason of his military status, but retains a residence in the State in which, if in any, he was domiciled at thq time of his entering the army, yet the fact that he is in the military service does not disqualify a person from obtaining a residence or from changing his domicil." But being, while on the active list, always subject to orders as to the ized by Joint Res. of Feb. 28, 1883. Tbe Act of June 11, 1878, requiring that one of tlie three Commissionors, who constitute the local government of the District of Colum- bia, shall be an officer of tbe Engineer Corps of the Army, has engrafted a permanent exception upon the original statute. As to a retired officer of the army, It has been held by the Attorney General, (19 Opins., 283,) that such an officer is "not ineligible to hold an appointment to a eivll office." A simillar view was taiten by the Court of Appeals of New Yorli, (People v. Duane, 121 N. T., 367,) in holding that Gen. Duane, late Chief of Engineers, D. S. A., retired, did not hold a federal office, in the sense of a statute of New Yorlt which pro- vided that an " Aqueduct Commissioner " should not hold a " federal office." Recently, by the Act of July 31, 1894, Congress has declared retired officers of the Army and Navy, generally, to be eligible to any public office to which they may be elected, or appointed by the President with the concurrence of the Senate. This action followed the admis- sion without objection, by the House of Representatives, to a seat to which he had been elected in that body, of Brig. Gen. D. E. Sickles, a retired officer. " See Badeau v. U. S., 130 D. S., 439 ; 19 Opins. At. Gen., 609. ^ In 19 Opins., 600, it Is remarked by the Attorney General that a leave of absence, granted for the express purpose of enabling an officer to engage in the service of an in- corporated company, would be a " clear evasion of the statute and unwarranted." =»The case of Hill v. Territory, 2 Wash. Ter., 147, holding that a retired officer of the army was disqualified, under Sec. 1860, R. S., from holding the civil office of County Treasurer, in Washington Territory, was decided in 1882, prior to the date of the amendment excepting retired officers from the applicaMon of the original statute. ^ That proof of a conviction of desertion is necessary to ilebar a deserter from ex- ercising the right of suffrage, see ante, p. 646. » See Const, of Illinois, Art. IV S3; Const, of Indiana, Art. 2 | 9 ; Rev Sts New York, Ch. V, Tit. II § 5. "Ames V. Duryea, 6 Lansing, 155. Here it was held that It was as competent for a soldier as for any citizen to abandon one domlcil and acquire another, and that the purchasing or renting by a soldier of a dwelling house, at a locality other than that of his late residence, and his removing to this dwelling with big family and living with them there, constituted evidence of such a change of domlcil. And see Wood v Fitzgerald, 3 Or., 568 ; Hunt v. Richards, 4 Sans., 549 ; G. O, 13, First Mil. Diet., 1868* MILITARY LAW AND PRECEDENTS. 897 period of his stay at any post or station, he cannot, in the majority of ca^es, exercise the volition or entertain the intention necessary to the selection and ac- quisition of a legal residence." By the laws, however, of some of the States a mere habitanoy for a certain period is all that is necessary to entitle the person to exercise the right of sufErage. LIABILITY TO TAXATION. An officer or soldier of the army is of course liable to be taxed for such real estate as he may possess, in the State, &c., in which it may be situate. As to personal property, he is in' general. Whether active or retired, liable to ]be taxed therefor like any citizen, the fact of his being in the military service not afCectlng his obligation in this regard ^ — except when stationed at a military post under a status of jurisdiction yet to be noticed. It is not essential that he should have a permanent residence to subject him to local taxation, personal property taxes being legally imposable upon mere inhatiitants, or upon property as such held at the place, irrespective of the status of the owner. Whether an officer, &c., stationed at a military post is legally liable to 1402 be taxed for his personalty, will depend upon the question whether the State is empowered to exercise jurisdiction over the locality. The effect, in this connection, of a surrender of its jurisdiction by a State to the United States will be considered presently. Exception. But in no event call a State or municipality legally tax the pay or allowances of an officer or soldier of the army, or the arms, uniform, equip- ments, horses, &c., incident to his rank and office, or required or intended to be employed by him in the military service. This, upon the fundamental ptinciple that no lesser sovereignty or authority can restrict or interfere with the means or instruments by or through which the Government of the United States is administered. " The authorities of a State," as the law is declared by Atty. Gen. Black," " cannot impose a tax upon the salary of a federal officer, or upon the compensation paid by the United States to any person engaged In their service." Or, as it is held by the Supreme Court, — " Taxation by a State cannot act upon the instruments, emoluments, &c., which the United States may use and employ as necessary and proper means to execute their sovereign powers." " ErrECT OF BEING STATIONED AT A PLACE, WITHIN A STATE, OVEB WHICH THE UNITED STATES EXERCISES EXCLUSIVE JUK- ISDICTION. Where exclusive jurisdiction over a military reservation or post situated within a State is vested in the United States, either by its having expressly reserved the same upon the admission of the State, or by means of the subsequent cession of its own jurisdiction by the State, (or — ^what Is equiva- lent — the consent of the State to the purchase of the land by the United States,) the persons stationed or commorant upon the premises become isolated, both territorially and as respects their civil relations. In a political sense, the land is no longer a part of the soil of the State, nor are the occupants in- habitants of the State. They are severed from the enjoyment of the rights, and from subjection to the liabilities, of the citizens of the State as en- tirely as if they were residents of a foreign country. They have no " Oraham v. Com., 51 Pa. St., 258 ; Tayloe v. Reading, 4 Brewst., 439. And see Circ, No. 5, (H. A.,) 1886. ^See 14 Opins. At. Gen., 27, 199. >»9 Opins., 477. "Dobbins v. Comrs. of Erie Co., 16 Peters, 435. And see Savings Bk. v. Coite, 6 Wallace, 605 ; 7 Opins. At. Gen., 578 ; Opin. of At. Gen. Hoar, of April 7, 1870 ; Cooley, Const. Lims., 600-1 ; Digest, 734-5. 440593 O - 42 - 97 898 MILITARY LAW AND PEECEDEKTS. 1403 more right to vote In the State, to send their children to the public schools, to use the public- libraries, to be protected by the police or Aire department, &c., than have the citizens of another State. Such opportunities of this class — the use of the public schools or libraries, for example — as may be extended to them are extended as privileges, not as rights. On the other hand, they cannot legally be taxed by the State or municipality for their per- sonal property held on the premises, or be required to perform militia duty, or to serve on juries, or to furnish labor on the roads, &c., in the State. Nor are they subject to the civil or criminal process of the local courts except in so far as the right to execute the same may legally have been reserved to the State; as where — as has been not unusual, and in order that the reservation or place may not serve as an asylum for criminals, debtors, &c., the State has reserved the right to execute within the premises process issued by its courts on account of criminal offences committed or causes of action initiated toithout the same. In all other cases such persons are subject to the jurisdiction and processes only of the United States courts and authorities." This is the status not only of the officers and soldiers stationed at the post but of the civil em- ployees and persons permitted to reside upon the reservation." 1404 Where indeed the State legislature has gone further, and, in professing to surrender jurisdiction to the United States, has reserved to itself a general concurrent jurisdiction over the premises, the grant is not one of exclusive jurisdiction within the sense or meaning of the Constitution." In such case the qualification so far nullifies the grant that the amenability of the military and other persons indicated to the local jurisdiction remains practically unchanged, and the effect above described upon their status is not produced. The distinction, it may here be noted, has been tatcen by the Supreme Court, in a case decided in 1885," between the effect of a consent, such as Is con- templated by the Constitution, given by a State to the purchase of land within Its limits by the United States, and that of a cession of jurisdiction by the State over such land. In the former case an exclusive jurisdiction is vested in the United States absolutely and unconditionally. In the latter only such juris- diction is vested as is granted, and the State may attach to its grant any condition " not Inconsistent with the effective use of the property " by the » It need hardly be remarked that military persons, where not specially excepted, are liable to any general tax imposed by Congress. Thus, it their incomes are within the statute, they are as liable to the income tax imposed by the Act of August 27, 1894, as they were to that imposed by the Act of June 30, 1864. So a post canteen which sells manufactured tobacco, or liquors, is liable, like a club, to the internal revenue tax, if any, imposed upon such sales or for licenses to make the same. See Clrc., War Dept., of Dec. 8, 1888. «0n the general subject of this exclusive jurisdiction — how it is acquired and what is its effect — see the following authorities : U. S. «. Cornell, 2 Mason, 60 ; U. S. v. Davis, 5 Id., 356 ; U. S. v. Travers, 2 Wheeler, C. C, 490 ; U. S. e. Tlerney, 1 Bond, 571 ; Eliot V. Van Voorst, 3 Wallace, Jr., 299 ; Sharon v. Hill, 24 Fed., 726 ; U. S. v. Clark, 31 Fed., 710 ; U. S. v. Bateman, 34 Fed., 86 ; tJ. S. v. King, Id., 302 ; Com. e. Clary, 8 Mass., 72 ; Mitchell v. Tibbetts, 17 Pick., 298 ; Opinion of Justices, 1 Met., 580 ; State v. Dimlek, 12 N. H., 194 ; State v. Kelly, 76 Maine, 331 ; People v. Godfrey] 17 Johns., 225 ; People v. Lane, Edmonds, 116 ; Com. ». Young, Bright, 302 ; Sinks v. Beese, 19 Ohio St., 306; In re O'Connor, 37 Wis., 379; Painter o. Ives, 4 Neb., 122; 2 Story Const. § 1225, 1227 ; 1 Kent. Com., 403-4 ; 1 Hall, Jour, of Jur., 53 ; 6 Opins! At. Gen., 577; 7 Id., 628; 8 Id., 30, 102, 387. 418; 14 Id., 33, 199; 16 Id., 468; 17 Id., 1 ; 20 Id., 242, 298, 611 ; G. O. 8, Dept. of Texas, 1884 ; also the recent case of Fort Leavenworth R. K. Co. v. Lowe, 114 U. S., 525. M 8 Opins. At. Gen., 419 ; 20 Id., 611 ; Fort Leavenworth R. R. Co. V. Lowe, 114 U. S., 626 ; and other cases cited in last note. » Fort Leavenworth R. R. Co. i/. Lowe, 114 U. S., 525. MILITARY LAW AND PRECEDENTS. 899 United States; and, the grant thus qualified being accepted, the condition be- comes legal and operative. Thus, in the case referred to, the State of Kansas, in ceding to the United States " exclusive Jurisdiction " over the Fort Leaven- worth reservation, retained for itself the right to tax the property, on the reser- vation, of a railroad company. The United States not dissenting from the condition. It was held by the Court that the company was liable to the State for the taxes imposed. So a State, in making such a cession, might reserve the right to tax private property held at the post. It is probable, however, that the Government would not accept a grant burdened with such a condition, but would reject it — as it has heretofore rejected grants coupled with reserva- tions incompatible with the exercise of exclusive Jurisdiction, such as the reservation of " Concurrent Jurisdiction," on the part of the State." 1405 It may be noted that where the United States has not, either by an original reservation in admitting the State, or by means of a cession from the State, or a consent to purchase given by its legislature, became vested with ex- clusive Jurisdiction over a military reservation or jwst, such Jurisdiction does not attach to it by the mere fact that it is the owner of the land, or that the same has been duly set apart as a reservation, or been occupied, (for however long a time,) as a military fort or post." In the absence of exclusive Jurisdiction vested as above, the land remains part of the territory of the State, and writs and processes of the State courts may be executed thereon in the same manner and with the same effect as on any other premises within the State limits. To duly vest such Jurisdiction, the action of the sovereign, the State, remains essential. Such a status non-existent in a Territory. We have been treating of the peculiar status of military persons In a locality within a State, exclusive Jurisdiction ovei' which has been vested in the United States. It remains to remark that such a status, political or Jurisdictional, cannot exist where the place — the military post or reservation — is situate in a Territory. A Terri- tory, unlike a State, is not a sovereignty." " It is not within the Jurisdiction Of any particular State," but is " within the power and Jurisdiction of the United States." " All " territory within the Jurisdiction of the United States, not included in any State, must necessarily be governed by or under the authority of Congress."" As it is expressed by the Supreme Court" — " d?fie power of Congress over the Territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, (derived from the treaty-making power and the power to declare and carry on war,) and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property 1406 belonging to the United States." Congress is thus " supreme " over the Territories." In the words again of, the same tribunal" — "A Territory is a political organization, whoUy dependent upon Congress, and subject to its absolute supervision and control. * * * It Is a political community organized by Congress, all whose powers are created by Congress, and all whose acts are subject to Congressional supervision." The Act of Congress '" See 7 Optns. At. Gen., 634 ; 8 Id., 418 ; 20 Id., 242, 298, 611. And note, in this connection, Co. of Cherry f>. Thacher, 32 Neb., 350. ™U. S. V. Stahl, 1 Woolworth, 192; Do., MeCahon, 206; Ea> parte Sloan, 4 Sawyer, 331 ; Clay v. State, 4 Kans., 49 ; U. S. v. Penn., 4 Hughes, 491. " Talbott V. Silver Bow Co., 139 U. Si., 446. "Mormon Church v. United States. 136 U. S., 43. "National Banlc v. Co. of Yankton, 101 U. S., 133. "Mormon Church v. United States, ante. "Mormon Church v. United States, ante; Murphy v. Eamsey, 114, U. S. 15, 44. « Taibott V. Silver Bow Co., ante. 900 MILITAEY LAW AND PBECBDENTS. organizing a Territory is the " organic law " of the Territory, which " takes the place of a Constitution as the fundamental law of the local government." Subject to this organic law, and to the " right of Congress to revise, alter and revoke, at its discretion," the local legislature Is " entrusted with the enact- ment of the entire system of municipal law." " Congress indeed may itself directly legislate for a Territory, but, as a general rule, after organizing a Territory, it leaves the details of the local legislation to the territorial legis- lature."* After erecting the courts for a Territory in the organic Act, it may and usually does leave it to the local legislature to define their .iurisdlction.** Thus the authority of the judges and magistrates, as well as of aU the other civil officials, of a Territory, emanates either immediately or mediately from Congress ; and, as a general rule, in the absence of any provision In the organizing Act or other U. S. statute exempting officers and soldiers of the army from the jurisdiction and authority of the local courts and officials, they will be amenable thereto in the same nianner and to the same extent as are the civilian inhabitants," where such amenability may not interfere with the 1407 due performance of their military functions, and except in so far as this liability may be affected by an existing state of war. The fact that they may be stationed and abiding at a post on a military reservation will not, (as it would were such post within a State and exclusive legislation over it had been ceded to the United States,) affect the question of their legal amenability." In a constitutional sense there can be no such thing as " exclusive jurisdiction " in a Territory. And, unless exempted as above, such officers and soldiers will be subject to be taxed by the Territorial authorities for their property, (except such as may be instrumental for or incidental to the performance of their military duties,) equally as are civilians. As it is observed by the Supreme Court " — " Under the general territorial system, as expressed in the various organic Acts, the power of taxation " possessed by a Territory " is absolute save as restricted by the Constitution or constitutional enactments." But Congress, it may be sup- posed, would not ratify any legislation of a Territory which subjected the personnel of the army to oppressive taxation. " National Bank v. Co. of Yankton, ante. " Hoi-nbuckle i;. Toombs, 18 Wallace, 655. " National Bank v. Co. of Yankton, ante. " Hornbuckle v. Toombs, ante. " See G. O. 30 of 1878, publishing an opinion of Judge Advocate General Dunn, ap- proved by the Secretary of War, to the effect that a Territorial Justice of the Peace may exercise jurisdiction in cases of military persons stationed on a military reservation In the Territory. An opinion contra, of Hoyt, J., of the District Court of 'Washington Territory, published in Circular No. 21. Dept. of the Columbia, 1883, appears to pro- ceed upon a confounding of Territories with Statts as to the matter of " exclusive ju- risdiction." « " The distinction between the federal and State jurisdictions under the Constitu- tion of the United States, has no foundation in the Territorial governments; and con- sequently no such distinction exists, either in respect to the jurisdiction of their courts or the subjects submitted to their cognizance." Neither the system of govern- ment or of laws of a Territory " is subject to the constitutional provisions in respect to State and Federal jurisdiction." Benner v. Porter, 9 Howard, 242. « Talbott V. Silver Bow Co., 139 U. S., 448. APPENDIX, Page. 1409 I. Ordinance of Richard I, of 1190 903 II. Articles of War of Richard II, of 1385 904 III. Articles of War of Gustavus Adolphus, of 1621 907 IV. Extract from the " English Military Discipline " of James II, of 1686 919 V. Articles of War of James II, of 1688 920 VI. The First British Mutiny Act, of 1689 929 VII. British Articles of War in force at the beginning of our Revo- lutionary War -. 931 VIII. The Massachusetts Articles of War 947 IX. The American Articles of War of 1775 953 X. The American Articles of War of 1776 961 XI. The American Articles of War of 1786 972 XII. The American Articles of War of 1806 976 XIII. The American Articles of War of 1874 986 XIV. Additional Statutory Provisions in the nature of Articles of War_ 997 XV. Act of 1890, establishing the Summary Court 999 XVI. Act of 1892, amending Articles of War, and changing procedure of courts-martial, &c 1000 XVII. Executive Order of 1895, prescribing limits of punishment 1001 XVIII. Act of the Confederate States Congress establishing " Military Courts," of Oct. 9, 1862, with amendments 1006 XIX. Act of Same, " to suspend the privilege of the Writ of Habeas Corpus," &C., of February 15, 1864 1008 XX. Forms of Charges under the Articles of War 1010 XXI. Form of Record of a General Court-Martial 1024 XXII. Form of Subptena for Civilian Witness, with return 1031 XXIII. Form of Process of Attachment of Witness 1032 XXIV. Form of deposition by Stipulation 1 1033 XXV. Forms of Return to Writs of Habeas Corpus 1035 XXVI. Extracts from the new Army Regulations of 1895 1036 901 1411 ORDINANCE OF RICHARD I— A. D. 1190. [" Chiefly meant to prevent disputes between the soldiers and sailors, In their voyage to the holy land." Grose, Hist. Eng. Army, vol. 2, p. 63.] " Richard, by the grace of God, King of England, Duke of Normandy and Aquitalne, and Earl of Anjou, to all his subjects about to proceed by sea to Jerusalem, greeting. Know ye, that we, with the common consent of fit and proper men, have made the enactments underwritten. Whoever shall slay a man on ship-board, he shall be bound to the dead man and thrown into the sea. If he shall slay him on land he shall be bound to the dead man and buried in the earth. If any one shall be convicted, by means of lawful witnesses, of hav- ing drawn out a knife with which to strike another, or shall strike auother so as to draw blood, he shall lose his hand. If, also, he shall give a blow with his hand, without shedding blood, he shall be plunged in the sea three times. If any man shall utter disgraceful language or abuse, or shall curse his com- panion, he shall pay him an ounce of silver fpr every time he has so abused him. A robber who shall be convicted of theft shall have his head cropped after the manner of a champion,' and boiling pitch shall be poured thereon, and then the feathers of a cushion shall be shaken out upon him, so that he may be known, and at the first land at which the ship shall touch, he shall be set. on shore. Witness myself, at Chinon." ^ Champions hired to light legal duels, in cases of murder and homicide, had their hair clipped close to their heads. (Note bjr Samuel.) 903 II. 1412 AKTICLES OF WAR OF RICHARD II— A. D. 1385. These are the Statutes, Ordonnances and Customs, to be observed in the Army, ordained and made by good consultation and deliberation of our most Excellent Lord the King Richard, John Duke of Lancaster, Seneschal! of England, Thomas Eai-1 of Essex and Buckingham, Constable of England, and Thomas de Mowbray, Earl of Notingham, Mareschall of England, and other Lords, Earls, Barons, Banneretts, and experienced Knights, whom they have thought proper to call unto them ; then being at Durham the 17th Day of the Month of July, in the ninth Year of the Reign of our Lord the King Richard II. I. Firstly. That all manner of persons, of what nation, state, or condition they may be, shall be obedient to our lord the King, to his constable aud mareschall, under penalty of everything they can forfeit in body and goods, II. Item, that none be so hardy as to touch the body of our Lord, nor the vessel In which it is contained, under pain of being drawn, hanged and beheaded. III. Item, that none be so hardy as to rob and pillage the church, nor to destroy any man belonging to holy church, religious or otherwise, nor any woman, nor to take them prisoners, if not bearing arms; nor to force any woman, upon pain of being hanged. IV. Item, that no one be so hardy to go before, or otherwise than In the battail to whicli he belongs, under the banner or pennon of his lord or master, except the herbergers, whose names shall be given Ip by their lords or masters to our constable and mareschall, upon pain of losing their horses. V. Item, that no one take quarters, otherwise than by the assignment of the constable and mareschall and the herbergers ; and that, after the quarters are assigned and delivered, let no one be so hardy as to remove himself, or quit his quarters, on any account whatsoever, under pain of forfeiture of horse and armour, and his body to be in arrest, and at the King's will. VI. Item, that every one be obedient to his captain, and perform watch and ward, forrage, and all other things belonging to his duty, under penalty of losing his horse and armour, and his body being in arrest to the mareschall, till he shall have made his peace with his lord or master, according to the award of the court. 1413 VII. Item, that no one be so hardy as to rob or pillage another of money, victuals, provisions, forage, or any other thing, on pain of losing his head ; nor shall any one take any victuals, merchandise, or any other thing whatsoever, brought for the refreshment of the army, under the same penalty ; and any one who shall give the names of such robbers and pillagers to the constable and mareschall, shall have twenty nobles for his labor. VIII. Item, no one shall make a riot or contention in the army for debate of arms, prisoners, lodgings, or any other thing whatsoever, nor cause any party or assembly of persons, under pain (the principals as well as the parties) of losing their horses and armour, and having their bodies in arrest at the King's will, and if it be a boy or page he shall lose his left ear. Any person conceiving himself aggrieved shall make known his greviance to the constable and mareschall, and right shall be done him. IX. Item, that no one be so hardy as to make a contention or debate in the army on account of any grudge respecting time past, or for any thing to come ; if in such contest or debate any one shall be slain, those who were the occasion shall be hanged; and if any one shaU proclaim his own name, or that of his lord or master, so as to cause a rising of the people, whereby an affray might happen in the army, he who made the proclamation shall be drawn and hanged. X. Item, that no one be so hardy as to cry " havok," ' under pain of losing his head, and that he or they that shall be the beginners of the said cry shall likewise be beheaded, and their bodies afterwards be hanged up by the arms. XI. Item, that no one make the cry called mounts," or any other whatso- ever in the army,, on account of the great danger that may thereby happen to 1 " Havok " wns the word given as a signal for the troops to disperse and pillage. [Note by Grose.] 2 " ilLOunti," i. e. montex — to horse. Probably this was either a mutinous cry, call- ing on the cavalry to taek horse and leave the army, or might be the method of call- ing to arms from a supposed approach of the enemy aud was what would now be called raising a false alarm. [Note by Grose.] 904 MILITARY LAW AND PRECEDENTS. 905 the whole army ; which God forbid ! and that on pain, if he be a man at arms, or archer on horseback, of losing his best horse ; and If he be an archer on foot or boy he shall have his left ear cut off. XII. Item, if In any engagement whatsoever an enemy shall be beat down to the- earth, and he who shall have thus thrown Mm down shall go forwards in the pursuit, and any other shall come afterwards, and shall take the faith or parole of the said enemy, he shall have half of the said prisoner, .and he who overthrew him the other half; but he who received his parole shall have the keeping of him, giving security to his partner. XIII. Item, If any one takes a prisoner, and another shall join him, 1414 demanding a part, threatening that otherwise he will kill him (the prisoner), he shall have no part, although the share be granted to him; and if he kills the said prisoner he shall be in arrest to the mareschall without being delivered till he has satisfied the party, and his horses and armour shall be forfeited to the constable. XIV. Item, that no man go out on an expedition by night or by day, unless with the knowledge and by the permission of the chieftain of the battail In which he is, so that they may be able to succour him should occasion require it, on pain of losing horse and armour. XV. Item, that for no news or affray whatsoever that may happen in the army, any one shall put himself in disarray in his battail, whether on an ex- cursion or in quarters, unless by assignment of his chieftain, under pain of rosing horse and armour. XVI. Item, that every one pay to his lord or master the third of all manner of gains. of arms; herein are Included those who do not receive pay, but only have the benefit of quarters, under the banner or pennon of arms of a captain. XVII. Item, that no one be so hardy as to raise a banner or pennon of St. George, or any other, to draw together the people out of the army, to go to any place whatsoever, under pain, that those who thus make themselves captains shall be drawn and hanged, and those who follow them be beheaded, and all their goods and heritages forfeited to the King. XVIII. Item, that every man of what estate, condition, or nation he may be, so that he be of our party, shall bear a large sign of the arms of St. George before, and another behind, upon peril that if he be hurt or slain in default thereof, he who shall hurt 6r slay him shall suffer no penalty for it ; and that no enemy shall bear the said sign of St. George, unless he be a prisoner, upon pain of death. XIX. Item, that if any one shall take a prisoner, as soon as he comes to the army, he shall bring him to his captain or master, on pain of losing his part to his said captain or master ; and that his said captain or master shall bring him to our lord the King, constable or mareschall, as soon as he well can, without taking him elsewehere, in order that they may examine him concerning news and Intelligence of the enemy, under pain of losing his third to him who may first make it known to the constable or mareschall; and that every one shall guard, or cause to be guarded by his soldiers, his said prisoner, that he may not ride about at large in the army, nor shall suffer him to be at large in his quarters, without having a guard over him, lest he espy the secrets of the army, under pain of losing his said prisoner; reserving to his said lord the third of the whole, if there is not a partner in the offence ; and the second part to him that shall first take him ; and the third part to the constable. On the like pain, and also of his body being in arrest, and at the king's will, he shall not suffer his said prisoner to go out of the army for his ransome, nor for any other cause, without leave of the King, constable, and mareschill, or the com- mander of the battalion in which he is. 1415 XX. Item, that every one shall well and duly perform his watch in the army, and with the number of men at arms and archers as is as- signed him, and that he shall remain the full limited term, unless by the order or permission of him before whom the watch Is made, on pain of having his head cut off. XXI. Item, that no one shall give passports or safe conduct to a prisoner nor any other, nor leave to any enemy to come into the army, on pain of for- feiture of all his goods to the ..King, and his body in arrest and at his will ; except our lord the King, Monsieur de Lancaster, seneschall, the constable, and marshall : and that none be so hardy as to violate the safe conduct of our lord the king, upon payne of being drawn and hanged, and his goods and heritage forfeited to the King; nor to infringe the safe conducts of our said lord of Lan- caster, seneschall, constable, and mareschall, upon pain of being beheaded. 906 MILITAEY hkW AND PRECEDENTS. XXII. Item, If any one take a prisoner, he shall take his faith, and also his baclnet, or gauntlet, to be a pledge and In sign that he Is so taken, or he shall leave him under the guard of some of his soldiers, under pain, that If he takes him, and does not do as Is here directed, and another comes afterwards, and takes him from him (if not under a guard) as is said, his baclnet or right gauntlet in pledge, he shall have the prisoner, though the first- had taken his faith. XXIII. Item, that no one be so hardy as to retain the servant of another, who has covenanted for the expedition, whether soldier, man at arms, archer, page or boy, after he shall have been challenged by his master, under pain that his body shall be In arrest till he shall have made satisfaction to the party com- plaining, by award of the court, and his horses and armour forfeited to the constable. XXIV. Item, that no one be so hardy to go for forage before the lords or others, whosoever they may be, who mark out or assign the places for the foragers; if it is a man at arms, he shall lose his horses and harness to the constable, and his body shall be arrested by the marischal, and If It is a valet or boy, he shall have his left ear cut off. XXV. That none be so hardy as to quarter himself otherwise than by the assignment of the herbergers, who are authorized to distribute quarters, under like penalty. XXVI. Item, that every lord whatsoever cause to be delivered to the con- stable and marischal the names of their herbergers, under penalty, that if any one goes forward and takes quarters, and his name is not delivered in to the constable and mareschall, he shall lose his horses and armour. "The Rules and Ordonnances of War" of Henry V are printed in Upton's " De Studio Militarl," and in Grose's Antiquities of England and Wales, vol. 1, p. 34. The military code of Henry VIII Is said to be preserved, in MS, in the College of Arms, London. III. 1416 CODE OF ARTICLES OF KING GUSTAVUS ADOLPHUS OF SWEDEN. (1621.)' Aeticles and Militaby Lawes to be Obsekved in the Wakbes. ImprimAs. No commander nor private Souldier whatsoever, shall use any kind of Idolatry, Witchcraft, or Inchantlng of Armes, whereby God is dis- honored, upon pain of death. 2. If any shall blaspheme the name of God, either drunk or sober, the thing being proven by two or three witnesses, he shall sufCer death without mercy. 3. If any shall seem to deride or scorne God's Word or Sacraments, and bee taken in the fact, hee shall forthwith bee convented before the Commissioners Ecclesiasticall, to be examined, and being found guilty, he shall be condemned by the Court of Warre to lose his head : but if they were spoken through haste or unadvisedly, for the first offence hee shall bee in yrons fourteen days, and for the second, be shot to death. 4. If any shall swear in his anger by the name of God, being convicted, shall pay halfe a moneth's pay unto the poor: Or if any bee found drinking, or at any other evil exercise, he shall forfeit half a moneth's pay, and at the next assembly of prayer or preaching he shall be brought upon his knees before the whole assembly, and there crave pardon of Almighty God. 5. To theend that God's Word be by no means neglected, Our will is, that publike prayers bee said every morning and evening throughout the whole Camp, at one time, in every several Regiment, they being called thereunto by the sound of the General's or Marshal's Trumpets, and the Drums of every private Company and Regiment. 6. Whatsoever Minister sha}l neglect his time of prayer, except a lawfull occasion hinders him, he shall for every time being absent, pay half a moneth's pay. 7. Whatsoever Souldier shall neglect the time of prayer, and is thereof advised by his Captain, he shall lie in prison 24 hours, except a lawfull occasion hindered. 8. If any Minister be found drunk or drinking at such time as he should preach, or read prayer, for the first offence he shall be gravely admonisht by the Commissioners Ecclesiasticall, and for the second fault be banisht the Leaguer. 9. Every Holy-day and every Sabbath-day at least, shall bee kept solemn with preaching in a place convenient, before and after noon; this 1417 also to bee done twice every week, if the time will permit ; if there be any holy-daies to come in the following week, the Minister shall after such Sermons or Prayers publikely bid them : who so shall neglect the time appointed (unlesse he have some lawful let or occasion) shall be punished as aforesaid. 10. All merchants and sellers of commodities whatsoever, so soon as they hear the Token or call to bee given, shall immediately shut up their doors, and so keep them during the said time of Prayer and Sermon ; they that presume in that season to sell any thing, shall make forfeit of all things so sold, whereof the one half to goe to the Generall, and the other halfe to the nest Hospitall ; over and above which, the offender shall for one whole day be put in prison. 11. AU drinkings and feastings shall In the time of Prayer bee given over, upon pain of punishment, as is before mentioned in the seventh Article; if any Souldier herein offends, he shall forfeit half his week's pay to the poor ; and If he be an Officer hee shall forfeit what shall be awarded. * Translated and printed In Ward's "Animadveisiona of Warre," London, 1639. 907 908 MILITARY LAW AND PKECEDENTS. 12. For the explaining of this Article formerly exprest: If there bee none to complaine of these abuses, then shall the Minister himself give notice thereof unto the Colonell or Captain, and if he shall suffer such abuses to goe unpunished, then shall he give the Generall notice thereof, who shall doe him right. . 13. All Priests and Ministers that are to be in our Camp or Leaguer, shaii be appointed by the Bishop of the same Diocesse or Land from whence the Souldiers come whom he is to be among: no Colonell nor Captain shall take what Minister he shall think good, but shall be content with whom the Bishop shall appoint him. 14. To the intent that all Church buslnesse, as well in the field as otherwhere, may have an orderly proceeding ; We ordain, That there be one Eccleslasticall Consistory or Commission In our Leaguer, the Presldente or chlefe person whereof shall bee Our own Minister, when We ourselves are personally pres- ent in the field. In Our absence shall the chlefe Minister to the Generall be the man; his fellow-Commissioners or ordinary Assessors shall be the chlefe Ministers to every Regiment of Horse and Foot; unto whom We give full power and authority to be Judges In all Church affaires, according to the Law of Gk)d and holy Church ; what- shall be by them decreed, shall be of as great force and strength, as If it were determined in any other Consistorie what- soever. 15. No Captain shall have liberty to take any Minister without the consent of his Colonell, and of the Consistory. Neither again shall he discharge any, but by permission of the Consistory, he having there first shewed that Ministw not to be worthie of his Charge. 16. If any Minister be found ill Inclined to drunkenness or otherwise; then may his Colonell or Captain of Horse of Foot complain of him in the Con- sistory; and if his fellow-Ministers find Mm guilty, then may they discharge him of his place. In such complaints, shall the whole Consistory and the President severely also reprehend him, that others of the same calling may take example thereby, and be warned of such grosse errors, and give good example unto others. 17. For that no government can stand firmly, unlesse it be first rightly grounded ; and that the Lawes be rightly observed ; We, the King of, &c., 1418 doe hereby make known unto all our Souldiers and Subjects, as well Nobles as others ; that in our presence they presume not to doe any un- seemly thing: but that every one give us our due honour, as we ought to re- ceive; who presume to doe the contrary, shall bee punished at our pleasure. 18. Next shall our Officers and Souldiers be obedient unto our Generall and Field-Marshal, with other our Officers next under them, in whatsoever they shall command belonging unto our service, upon paine of punishment as foUoweth. 19. Whosoever behaves not himself obediently unto our great Generall, or our Ambassador coming in our absence, as well as If we our selves were there in person present, shall be kept in irons or In prison until such time as he shall be brought to his answer, before a Councell of Warre, where being found guilty, whether it were wilfully done or not, he shall stand to the order of the Court, to lay what punishment upon him they shall thinke convenient, accord- ing as the person and fact Is. 20. And if any shall offer to discredit these great Officers by word of mouth or otherwise, and not be able by proof to make It good, hee shall be put to death without mercy. 21. Whosoever offers to lift up any manner of Armes against them, whether hee doth them hurt or not, shall be punished by death. 22. If any offers to strike themr with his hand, whether hee hit or misse, he shall lose his right hand. 23. If it falls out that our great Generall in any feast, drinking, or otherwise, doth offer Injury to any Knight, Gentleman or other, which stands not with their honour to put up; then may they complain to the Commissioners for the Councell of Warre, where hee shall answer them, and bee censured by them according to the quality and importance of the fact. 24. As it is here spoken of our Generall ; so also It is of all other our great Officers, as Field-Martlall, Generall of the Ordnance, Generall of the Horse, Serjeant-Major Generall, Quarter-Master Generall, and Muster-Master; all which, if they commit any such offence through envie or other by-respect, they shall answer it before the Court of Warre, as is before mentioned. MILITAKY LAW AND PRECEDENTS. 909 25. A^ every Officer and Souldler ought to be obedient unto our Generall and other great Officers; so shall they in the under Regiments be unto their Colonell, Lleftenant-eolbnell, Serjeant-Major, and Quarter-Master, upon palne of the same punishment before mentioned. 26. If any Souldler or Officer serving either on horseback or foot, shall ofCer any wrong or abuse unto his superior Officer either by word or d^ed, or shall refuse any duty commanded him, tending unto our service, he shall be punisht according to the Importance of the fact. 27. If any Colonell, Lieftenant-Colonell, Serjeant-Major, or Quarter-Master, shall command any thing not belonging unto our service, he shall answer to the complaint before the Court. 28. In like manner if any inferlour Officer either of horse or foote does challenge any common Souldler to be guilty of any dishonest action; the Souldier finding himself guiltless, may lawfully call the said Officer to make proofe of his words before the Court as his equall. 29. If any Souldier either of horse or foote shall offer to strike his Officer that shall command him any duty for our service, he shall first lose his 1419 hand, and be then turned out of the Quarter. And if it be done in any Fort or place beleagured after the watch is set, he shall lose his life for it. 30. And if he doth hurt to any of them, whether it be in the field or not, he shall be shcjt to death. 31. If any such thing falls out within the compasse of the Leaguer or the place of Garrison, in any of the Souldiers lodgings where many of them meete together, the matter shall be inquired into by the Officers of the Regiment, that the beginner of the fray may be punished according to desert. 32. He who in the presence of our Generall shall draw his sword, with pur- pose to doe mischief with it, shall lose his hand for it. 33. He who shall in anger draw his sword while his Colours are flying, either in Battell or upon the March, shall be shot to death; if it be done in any strength or fortifyed place, he shall lose his hand, and be turned out of the Quarter. 34. He who shall presume to draw his sword upon the place where any Court of Justice is holden, while it is holden, shall lose his life for it. 35. He that drawes his sword in any strength or Fort to doe mischlefe there- with, after the watch is set, shall lose his life for it. 36. No man shall hinder the Provost Marshall Generall, his Lief tenant or servants, when they are to execute anything that is for our service; who does the contrary, shall lose his life. 37. Leave is given unto the Provost Marshall Generall to apprehend all whatsoever that offend against these our Articles of Warre. All other i)llenders he may likewise apprehend by his owne authority. 38. If the Provost Marshall Generall shall apprehend any man by his owne authority ; he may keep him either in prison or in irons, but by no means doe execution upon him after the Court of Warre is ended, without first giving the Generall notice thereof. 39. The Provost Marshals of every Regiment, have also the same priviledge under their owne Regiment and Company, that the Provost Marshall Generall hath in the Leaguer. 40. Every Serjeant Major commanding in the whole Leaguer what appertains to his Office, shall be obeyed by every man with his best endeavour. 41. Whatsoever is to be published or generally made knowne shall be pro- claimed by sound of Drumme and Trumpet, that no man may pretend ignorance in it ; they who after that shall be found disobedient, shall be punished accord- ing to the quality of the fact. 42. No Souldier shall thinke himselfe too good to work upon any peece-of Fortification, or other place where they shall be commanded for our service upon paine of punishment. 43. Whosoever shall do his Majesties businesse slightly or lazily, shall first ride the wooden horse, and lie in prison after that, with bread and water, ac- cording as the fact shall be adjudged more or lesse hainous. 44. All Officers shall diligently see that the Souldiers plye their worke, when they are commanded so te doe; he that neglects his duty therein shall be punished according to the discretion of the Court. 45. All Souldiers ought diligently to honour and obey their Officers, and es- pecially being by them commanded upon service ; but if at any time they 1420 can on the contrary discover that they are commanded upon a service which is to our prejudice any manner of way; then shall that souldier 910 MILITABT LAW AND PHECEDENTS. not obey him what charge soever he receives from him, but Is presently to give notice of it. 46. No Colonell or Captaine shall command his souldiers to doe any unlaw- ful thing; which who so does, shall be punished according to the discretion of the Judges. Also if any Colonell or Captaine or other Officer whatsoever, shall by rigpur take any tiling away from any common souldier, he shall answer for it before the Court. 47. No man shall goe any other way in any Leaguer wheresoever, but the same common way laid out for every man, upon paine of punishment. 48. No man shall presume to' make any Alarme in the quarter, or to shoot off his Musket in the night time, upon paine of death. 49. He that, when warning is given for the setting of the watch by sound of Drumme, Fife, or Trumpet, shall willfully absent himself without some lawful excuse ; shall be punisht with the wooden horse, and be put to bread and water, or other pennance, as the matter is of importance. 50. He that is taken a sleepe upon the watch, either in any strength, trench, or the like, shall be shot to death. 51. He that comes ofE his watch where he is commanded to keepe his Guard, or drlnkes himselfe drunke upon his watch or space of Sentinell, shall be shot to death. 52. He that at the sound of Drumme or Trumpet repaires not to Ijis Colours, shall be clapt In irons. 53. When any march Is to be made, every man that is sworn shall follow his Colours ; who ever presumes without leave to stay behind shall be punished. 54. And if it be upon mutiny that they doe it, be they many or be they few, they shall die for it. 55. Who ever runnes from his Colours, be he Native or Forreiner, and does not defend them to the uttermost of his power so long as they be in danger, shall suffer death for it. 56. He that runnes from his Colours in the field shall dye for it ; and if any of his Comrades kill him in the meane time time he shall be free. 57. Every man is to keep his own ranck and file upon the march, and not to put others from their orders ; nor shall any man cast himselfe behind, or set himselfe upon any waggon, or horse-back ; the offenders to be punished accord- ing to the time and place. 58. Whatever Regiment shall first charge the enemy and retire afterwards from them befose they come to dint of sword with them, shall answer it before our highest Marshals Court. 59. And if the thing be occasioned by any Officer, he shall be publikely dis- graced for it, and then turned out of the Leaguer. 60. But if both Officers and Souldiers bee found faulty alike, then shall the officers be punished as aforesaid. If it bee in the Souldiers alone, then shall every tenth man be hanged; the rest shall bee condemned to carry all the filth out of the Leaguer, until such time as they performe some exploit that is worthy to procure their pardon, after which time they shall bee cleer of their former disgrace. But if, at the first, any man can by the testimony of ten men prove himselfe not guilty of the cowardize, he shall goe free. 1421 61. When any occasion of service is, hee that first runs away, if any man kill him, hee shall be free; and if at that time he escape, and be apprehended Afterwards, he shall be proclaimed Traitor, and then put out of the Quarter; after which, whosoever killeth him, shall n§ver be called to account for it. 62. If any occasion be to enter any Castle, Towne or Sconce by assault or breach, he v^ho retires from the place before hee hath been at handy blowes with the enemy, and hath used his sword, so farre as it is possible for him to doe service with it, and beforehe bee by main strength beaten from it by the enemy, shall be punished as the Court shall censure liim. 63. Whatsoever Ensigne-bearer shall flye out of any place of Battery, Sconce or Redout, before hee hath endured three assaults, and receive no reiiefe, shall be punished as before. 64. Whatsoever Regiment, Troop or Company refuseth to advance forwards to charge the enemy, but out of fear and cowardize stayes behind their fellows, shall be punished as before. 65. Whatsoever Regiment, Troop or Company is the beginner of any mutiny shall be punished as is before mentioned ; the first authour to die for it, and the next consenter to bee punished according to the discretion of the Court. MILITARY LAW AND PEECEDENTS. 911 66. If any Regiment, Troop or Company shall flye out of the Field or Battell. then shall they three several times (six weeks being betwixt every time) answer for it before the Court, and if there it can be proved that they have done ill, and have broken their Oath, they shall be proclaimed Traitors, and all their goods shall be confiscated, whether they bee present to answer it before the Court or not : if they bee absent they shall bee allotted so many dales as wee shall appoint them for liberty to come in to answer it before the Court, where, if they cleer themselves, well and good ; if not, they shall have so many dales to retire themselves after which, if they be apprehended, then shall they be punisht according as the Court shall doom them. 67. Whatsoever Regiment, Troop or Company shall .treat with the enemy, or enter into any conditions with them whatsoever (without our leave, or our Generals, or chief Commander in his absence) whatsoever ofHcer shall doe the same, shall be put to death for it, and all his goods shall bee confiscated ; of the souldlers every tenth man shall be hanged, and the rest punished, as afore- said. 68. Whosoever presuming to do the same, and shall be taken therewith, shall bee proceeded withall like those that flye out of the field ; their goods also shall be confiscate. 69. If any that then were in company with such, can free themselves from being partakers in the crime, and can prove that they did their best to resist it ; then shall they be rewarded by us according as the matter is of importance. 70. Whoever, upon any strength, holds discourse with the enemy, more or lesse, without our leave, our Generals, or the Governour of the place; shall die for it. 71. If it bee proved that they have given the enemy any prorate Intelligence, by letter or otherwise, without our leave as aforesaid ; shall die for it. 72. They that give over any strength unto the enemy, unlesse it be for 1422 extremity of hunger or want of Ammunition ; the Governour, with all the Officers, shall die for it; all the souldiers shall be lodged without the quarters, without any Colours, they shall be made to carry out all the filth of the Leaguer ; thus to continue untill some noble exploit of them be per- formed, which shall promerit pardon for their former cowardize. 73. Whatsoever souldiers shall compell any Governour to give up any Strength, shall lose their life for It : those, either officers or Souldiers, that consent unto it, to be thus punished; the Oflicers to die all, and the Souldlers every tenth man to be hanged : but herein their estate shall be considered, if they already have suffered famine and want of necessaries for their life, and bee withall out of hope to bee relieved, and are so pressed by the enemy, that of necessity they must within a short time give up the Peece, endangering their lives thereby, without all hopfe of reliefe: herein shall our Generall, with his Councell of Warre, either cleer them, or condemne them according to their merit. 74. If any number of Souldiers shall, without leave of their Captain, assemble together for the making of any convention, or taking of any councell amongst themselves; so many inferiour OflScers as be in company with them shall suffer death for it, and the souldiers be so punished as they that give up any Strength. Also at no time shall they have liberty to hold any meeting amongst themselves, neither shall any Captain permit it unto them ; he that presumeth to suffer them shall answer it before our highest Court. 75. If any being brought in question amongst others, shall call for help of his own Nation or of others, with intention rather to bee revenged than to defend himself; he shall suffer death for it, and they that come in to help him shall be punished like Mutiners. 76. Whosoever giveth advice unto the enemy any manner of way, shall die for it. 77. And so shall they that give any token, signe or Item unto the enemy. 78. Every man shall be contented with that Quarter that shall be given him either in the Town or Leaguer ; the contrary doer to be accounted a Mutiner. 79. Whoever flings away his Armes, either in field or otherwhere, shall be scourged through the Quarter, and then be lodged without it, be enforced to make the streets clean until they redeem themselves by some worthy exploit doing. 80. He that selleth or pawneth his armes or any kind of ammunition what- soever, or any Hatchets, Spades, Shovels, Pickaxes, or other the like neces- sary instruments used In the field, shall be, for the first and second time, beaten through the Quarters, and for the third time, punish'd as for other theft: he 912 MHITAEY LAW AND PRECEDENTS. also that buieth or taketh them upon pawn, be he souldier or be he victualler, he shall first lose his money, and then bee punished like him that sold them. 81. He that wilfully breaketh any of his Armes or Implements aforesaid, shall again pay for the mending of them, and after that be punish'd with bread and water, or otherwise, according to the discretion of the Court. 82. Hee that after warning to the contrary, shall either buy or sell, shall first lose all the things so sold or bought, and then be punished for his diso-- bedlence, as is aforesaid. 83. No man that once hath been proclaimed Traitor, either at home 1423 or in the field, or that hath been under the hangman's hands, shall ever bee endured again in any Company. 84. No Duell or Combat shall be permitted to bee fought either in the Leaguer or place of Strength: if any offereth to wrong others, it shall bee decided by the Officers of the Regiment; he that challengeth the field of another shall answer it before the Marshal's Court. If any Captain, Lieutenant, Ancient, or other interiour officer, shall either give leave or permission unto any under their command, to enter combat, and doth not rather hinder them, shall be presently cashiered from their charges, and serve afterwards as a Reformado or common souldier; but if aiiy harnr be done he shall answer it as deeply as he that did it. 85. Hee that forceth any woman to abuse her, and the matter bee proved, hee shall die for it. 86. No Whore shall be suffered in the Leaguer ; but if any will have his own wife with him, he may ; it any unmarried woman bee found, hee that keeps her may have leave lawfully to marry hei-, or else be forced to put her away. 87. No man sfcill presume to set fire on any Town or Village in our Land : if any doe, he shall be punished according to the importancy of the matter, so as the Judges shall sentence him. 88. No Souldier shall set fire upon any Tovm or Village in the enemies' Land, without he be commanded by his Captain : neither shall any Captain give any such command unlesse hee hath first received it from us or our Generall : who so doth the contrary, he shall answer it in the Generals Councell of Warre according to the importance of the matter ; and if it be proved to-be prejudiciall unto us, and advantaglous for the enemy he shall suffer death for it. 89. No Souldier shall pillage anything from our subjects upon any March, Strength, Leaguer, or otherwise howsoever, upon pain of death. 90. He that beats his Host or his household servants, the first and second time hee shall be put in yrons, and made to fast with bread and water according as the wrong Is that he hath done, if the harme be great, hee shall be pnnish'd thereafter, according to the discretion of the Court. 91. None shall presume to do wrong to any that brings n'ecessaries to our Leaguer, Castle or Strength whatsoever, or to cast their goods down of^ their Horses, and take away their Horses perforce; which who so doth siiail die fdr it. 92. They that pillage or steal either in our Land or in the enemies, or from any of them that come to furnish our Leaguer or Strength, without leave, shall bee punish'd as for other theft, 93. If it so please God that we beat the enemy, either in the field or in his Leaguer, then shall every man that is appointed follow the chase of the enemy, and no man give himselfe to fall upon pillage, so long as it is possible to follow the enemy, and until such time as he be assuredly beaten ; which done, then may their quarters be fallen upon, every man taking what he findeth in his owne quarters ; neither shall any man fall to plunder one in anothers quarters, but rest himselfe contented with that which is assigned him. 94. If any man give himselfe to fall upon the pillage before leave be given him so to doe, then may any of his Officers kill him. Moreover, if any 1424 misfortune ensue upon their greedinesse after the spoyle, then sha'u all of them suffer death for it ; and, notwithstanding there comes no damage thereupon, yet shall they lye in Irons for one moneth, living all that While upon bread and water, giving all the pillage so gotten unto the next hospitall. He that plunders another quarter, shall also have the same punishment. 95. When any Fort or place of Strength is taken in, no man shall fail upon the spoyle before that all the places in which the enemy is lodged be also taken in, and that the Souldiers and Burgers have-layed downe their Armes and that the quarters be dealt out and assigned to every body; who so does the contrary, shall be punished as before. MILITARY LAW AND PliECEDENTS, 913 96. No man shall presume to pillage any Church or Hospitall, although the Strength be taken by assault; except he be first commanded, or that the Souldiers and Burgers be fled thereinto and doe harme from thence; who dares the contrary, shall be punished as aforesaid. 97. No man shall set fire upon any Hospitall, Ghnrche, Schoole, or Mill, or spoyle them any way, except he be commanded ; neither shall any tyrannize over any Churchman, or aged people, men or women, maides or children, un- less they first take arms against them, under paine of punishment at the dis- cretion of the Judges. 98. No souldier shall abuse any Churches, Colledges, Schooles or Hospitalls; or offer any kind of violence to Ecclesiasticall persons, nor in any way be troublesome with pitching or inquartering upon them, or with exacting of con- tribution from them ; no souldier shall give disturbance or offence to any person exercising his sacred function or Ministry, upon paine of death. 99. Let the billet and lodgings in every City be assigned to the Souldiers, by the Burge-masters or chiefe Head-burroughes ; and let no Commander pre- sume to meddle with that office ; no commander or common souldier shall either exact or receiv* of the Townesmen or Citizens anything, besides what the King or his Generall in his absence hath appointed to be received. 100. No Citizen nor Countryman shall be bound to allow unto either Souldier or Officer anything but what is contained in the King's Orders, for contri- butions and enquarterings ; (viz.) nothing besides house-roome, fire-wood, candle, vinegar and salt, which is yet to be understood that the inferiour Offi- cers, as Serjeants and Corporalls, and those under them, as also all common Souldiers, shall make shift with the common fire and candle of the house where they lie, and do their businesse by them. ' 101. If so be that Colonels and other Commanders have any servants or at- tendants, they shall not te maintained by the Citizens or Yeomandry, but by their own Masters. 102. No Commander shall take any house or lodging in his protection, or at his owne pleasure give a ticket of freedome, when such tickets are not ex- pressly desired of him, nor shall he receive any bribe or present to mend his owne commons wlthall, imder any colour or pretext whatsoever. If any man desire a personall safeguard, let him be contented with that which is appointed In the King's Orders. 103. To Commanders and Souldiers present, let the usuall allowance be of- fered by the Citizens, but let no care be taken for such as are away. 104. New-levied Souldiers are to have no allowance before they be entertained at the Muster. 1425 105. Nothing is to be allowed the Souldiers in any house but in the same where he is billited ; if they take anything otherwhere by force, they are to make it good. 106. If either Officer, Souldier, or Sutler be to travell through any Country, the people are not to furnish them with Waggons, Posthorse, or victuals but for their ready money, unless they bring a Warrant either from the King or the Generall. 107. No Souldier is to forsake his Colours, and to put himself under the en- tertainment of any other Colonell or Garrison, or to ramble about the Gountrey, without he hath his Colonel's Pass, or his that is in his stead : who so doth, It shall bee lawfuU for any man to apprehend him, and send him prisoner to the next garrison of the King's, where he shall be examined, and punished ac- cordingly. 108. Whosoever have any lawful! Passes, ought by no means to abuse the benefit of them, or practise any cheats under the pretence of them. If any be found with any pilfery, or to have taken any man's cattell or goods ; it shall be lawfuU for the Countrey-people to lay hands upon them, and to bring them to the next garrison ; speciaU care being had, that if the prisoner hath any letters of moment about him, they be speedily and safely delivered. 109. Our Carriers or Posts, though they have lawfuU Passes to travell wlthall, yet shall they not ride their Post-horses, which they hire, beyond the next Stage. And if they shall take away any horse from one or other, to tire out with hard riding, and beyond reason; they shall be bound to return the horse again, or to make satisfaction for him. The same order shall take place too, when any Regiment or Troops of ours shall remove from one Quarter to another; namely, when they shall hire Postillions or baggage-Waggons for the carriage of their Valises, Armes or Ammunition, 440593 0-42-58 914 MIUTAEY LAW AND PRECEDENTS. 110. The houses of the Princes or Nobility which have no need to borrow our Guard to defend them from our enemy, shall not be pressed with souldiers. 111. Moreover, under a great penaltie, It Is provided, that neither Officers nor Souldiers shall make stay of, or arrest the Princes Commissaries or Officers, or any Gentlemen, Councellors of State, Senators or Burgers of any Cities, or other countrey-people ; nor by any fact of violence shall offend them. 112. Travellers, or other passengers going about their businesse into any Gar- risons or places of Muster, shall by no means bee stayed, injured, or have con- tribution laid upon them. 113. Our Commanders shall defend the countrey-people and Ploughmen that follow their husbandry, and shall suffer none to hinder them in it. 114. No Commander or common souldier whatsoever, either in Town of Gar- rison, or place of Muster, shall exact anything upon Passengers, nor shall lay any Custome or Toll upon any Merchandize imported or exported ; nor shall any bee a hindrance to the Lord of the place, in receiving his dpe Customes or Toll-gathering; but to further them. 115. If any of our Officers having power of Command, shall give the Word for any Remove or March to some other Quarter; those souldiers either of Horse or Foot that privily lurk behind their fellows shall have no power 1426 to exact part of the contributions formerly allotted for their maintenance in that place; but shall severally be punished rather for their lingering behind the Army. 116. Whatsoever is not contained in these Articles, and is repugnant to Mili- tary Discipline, or whereby the miserable and innocent country may against all right and reason be burdened withall, whatsoever ofCence finally shall be com- mitted against these orders, that shall the severall Commanders make good, or see severally punished unlesse themselves will stand bound to give further satisfaction for it. 117. According to these Articles, let every man governe his businesse and actions, and learne by them to take heed in comming into lurch or danger. 118. If any Souldier happens to get free-booty in any Castle, City, Tdwne, Fort, Strength, or Leaguer; and moreover whatsoever Ordnance, Munition for Warre, and victuals is found there, shall be left for our use, the rest shall be the Souldiers, only the tenth part thereof shall they give to the sicke and maimed Souldiers In the Hospitalls. All prisoners shall first be presented to us, amongst which if there bee any man of note, whom we desire to have unto our selves, wee promise in lieu thereof honestly to recompence the taker of him, according to the quality of the person ; other prisoners of inferiour ranke may the takers keep unto themselves, whom by our leave or our Generalls they may put to their ransome and take it to themselves, but without leave they may not ran- some them upon paine of death. 119. If any bee found drunken in the enemies Leaguer Castle, or Towne, be- fore the enemy hath yielded himself wholly up to our mercy, and laid downe his Armes ; whosoever shall kill the said drunken Souldier shall be free for it ; always provided that good proofe be brought that hee was drunken ; and if that Souldier escape for that time with his life, and that it can appear that some dammage or hindrance hath come unto our service by his drunkennesse, then wheresoever he be apprehended he shall die for it ; but if no hurt ensued thereof, yet shall be put in irons for the space of one month, living upon his pittance of Bread and Water. 120. All our Souldiers shall duely repaire unto the generall musters upon the day and houre appointed; nor shall any Colonell or Captaine either of Horse or Foot, keepe backe his Souldiers from being mustered at the time when our Muster-masters shall desire to view them ; if any refuse, he shall be taken for a Mutiner. 121. No Colonell nor Captaine shall lend any of their Souldiers to another upon the Muster-dayes for the making up of their numbers compleat; he that thus makes a false Muster, shall answer it at the Marshalls Court, where being found guilty he shall be proclaimed Traitor ; after which being put out of the Quarter, his Colours shall flie no more. 122. If any Souldier hires out himselfe for money to runne the Gate- 1427 lope ' three several times, he shall be beheaded, and if any Captaine shall so permit or counsell his Souldier to doe the same, he shall be actually cashiered. 1 Running the Gate-lope or Purgatory, is, when he that hath done the fault is to run between the Regiment standing halfe on one side, and halfe on the other with wblos or bastinadoes in their hands, to lash and cudgel the offender, which punishment manv a shameless souldier will be hired to undergo for drinke or money. (Note by Ward ) MILITARY LAW AND PRECEDENTS. 915 123. If any Horseman borrowes either Horse, Armour, Pistols, Saddle, Sword, or Harnesse to passe Muster withall, so much as is borrowed shall be escheated, and hlmselfe after that turned out of the Leaguer, as likewise he shall that lent it him ; the one halfe of the Armes forfeited shall goe to the Captaine, and the otlier halfe unto the Parforce. 124. If it can be proved that any Horseman hath wilfully spoyled his Horse ; hee shall be made Traitor, lose his Horse and bee turned out the Quarter. 125. All Souldiers both of Horse and Foot shall be taken on at a free Muster, but not by any private Captaine ; neither shall their pay goe on before they be mustered by our Mustej-masters. 126. No Souldier either of Horse or Foot shall be cashiered by his Colonell, Captaine, or other inferiour officer; nor shall they who being taken on at a free Muster, have their men sworne to ^erve (if it please God) until the next Muster, except it be upon a free Muster, at which time the Muster-masters, and his Colonell may freely give him his Passe. 127. If any forreine Souldiere shall desire his passe in any Towne of Gar- rison after the enemy be retired he may have it ; but by no means whilst there is any service to be done against the enemy. 128. If any Souldier or Native subject, desires to bee discharged from the warres, he shall give notice thereof unto the Muster-masters ; who if they finde him to bee sicke, or maimed, or that he served twenty yeares in our warres, or hath beene ten severall times before the enemy, and can bring good witnesse thereof, he shall be discharged. 129. If any Colonell or Captaine, either of Horse or Foot does give any Passe otherwise than is before mentioned, he shall be punished as for other Fellonies ; and he who hath obtained the sanre Passe, shall lose three moneths pay, and be put in prison for one moneth, upon bread and water. 130. No Colonell or Captaine either of Horse or Foot shall give leave to his Souldiers to goe home out of the Field, without leave of our Generall, or chiefe Commander ; whosoever does the contrary, shall lose three moneths pay, and be put in prison for one moneth, upon Bread and Water. 131. No Captaine either of Horse or Foote shall presume to goe out of any Leaguer or place or Strength to demand his pay, without leave of the Generall or Governour; who so doth, shall be cashired from his place, and put out of the quarters. 132. No Captaine either of Horse or Foot shall hold backe any of his soul- diers meanes from him' ; of which if any complaine, the Captaine shall answer it before the Court, where being found guilty, he shall be punisht as for other Felony ; also if any mischance ensue thereupon, as that the Souldiers mutine, be sicke, or endure hunger, or give up any Strength ; then shall he answer for all those inconveniences, that hereupon can or may ensue. 133. If any Captaine lends money unto his souldiers which he desires should be paid againe ; that must be done in the presence of the Muster-masters, that our service be no way hindered or neglected. 1428 134. If upon necessity the case sometimes so falls out in the Leaguer, that pay bee not always made at the due time mentioned in the Commis- sions, yet shall every man in the meane time be willing to further our service, seeing they have victuals suflBcient for the present, and that they shall so soone as may bee receive the rest of their means, as is mentioned in their Commission. 135. Very requiste it is, that good justice be holden amongst our Souldiers, as well as amongst other our Subjects. 136. For the same reason was a King ordained by God to be the Soveraigne Judge in the field as well as at home. 137. Now therefore in respect of many occasions which may fall out, his single judgment alone may bee too weak to discerne every particular circum- stance; therefore it is requisite that in the Leaguer, as well as otherwhere, there be some Court of Justice erected for the deciding of all controversies; arid to be carefull in like manner, that our Articles of warre be of all persons observed and obeyed so farre forth as is possible. 138. We ordained therefore that there be two Courts in our Leaguer : a high Court and a lower Court. 139. The lower Court shall be amongst the Regiments both of Horse and Foot, whereof every Begiment shall have one among themselves. 140. In the Horse-Begiments the Colonell shall be President, and in his absence the Captaine of our owne Life-guards ; with them are three Captains to be joyned, three Lieutenants, three Cornets, and three Quarter-masters that so 916 MILITAllY LAW AND PRECEDENTS. together with the President they may be to the number of thlrteene at the leaste. 141. In a Regiment of Foot the Colonell also shall be President, and his Lieu- tenant Colonell in his absence; with them are two Captains to be joyned, two Lieutenants, two Ensignes, foure Serjeants, and two Quarter-masters; that together with the President they may be thlrteene in number also. 142. In our highest Marshall Court, shall our General be President; in his absence our Field Marshall; when our Generall is present, his associates shall be our Field Marshall first, next him our General of the Ordnance, Serjeant Major Generall, Generall of the Horse, Quarter-Master-General; next to them shall sit our Muster-Masters and all our Colonells, and in their absence their Lieutenant Colonells, and these shall sit together when there is any matter of great importance in controversle. 143. Whensoever this highest Court is to be holden they shall observe this order ; our great Generall as President, shall sit alone at the head of the Table, on his right hand our Field-Marshall, on his left hand the Generall of the Ordnance, on the right hand next our Serjeant-Major-Generall on the left hand againe the Generall of the Horse, and then the Quarter-Master-General on one hand, and the Muster-Master-Generall on the other; after them shall every Colonell sit according to his place as here followes ; first, the Colonell of our Life Regiment, or of the Guards of our owne person ; then every Colonell ac- cording to their places of antiquity. If there happen to be any great men in the Army of our subjects, that be of good understanding, they shall cause them to sit next these Oflicers ; after these shall sit all of the Colonells 6t strange Nations, every one according to his antiquity of service. 1429 144. All the.se Judges both of higher and lower Courts, shall under the blue Skies thus swear before Almighty God, that they will Inviolably keep this following oath unto us : I. R. W. doe here promise before God upon his holy Gospell, that I both will and shall Judge uprightly in all things according to the Lawes of God, of our Nation, and these Articles of Warre, so farre forth as it pleaseth Almighty God to give me understanding; neither will I for favour nor for hatred, for good will, feare, ill will, angery or any gift or bribe what- soever, judge wrongfully ; but judge him free that ought to be free, and doom him guilty, that I flnde guilty ; as the Lord of Heaven and Earth shall help my soule and body at the last day, I shall hold this oath truly. 145. The Judges of our highest Court shall take this their oath in the first Leaguer, where our Campe shall be pitched; our Generall, and the rest ap» pointed to set with him shall repair to the place where we shall appoint, before his Tent, or otherwhere ; where an officer appointed by us shall first take his oath, and then the others oathes also. 146. When the President of our lower Courts shall heare this aforesaid oath read before them, then shall they hold up their hands, and sweare to keep it; in like manner, so often as any Court is to be holden in any Regiment, the aforesaid oath shall be read before all them that sit in judgment with him, who shall also hold up their hands and promise to keep the oath aforesaid. 147. In our highest Court, there shall be one Sworne Secretary appointed, who shall make a diligent record of all the proceedings that shall fall out, either in any pitcht Battell, Skirmish, Leaguer, or any other peece of serv- ice whatsoever ; he shall take the note, both of the day, place, and houre, with all other circumstances that shall happen; he shall also set his hand unto aU sentences signed by our Generall ; he shall have also two' Clerkes or Notaries under him, who shall ingrosse all these passages, and keepe a true Register of all enterprises that our Generall with his Counsell of Warre shall give order to have done ; and likewise of what letters be either written or received. 148. In our highest Court there shall be one Vice-president, who shall com- mand the Serjeant at Armes, whose office is to warne in all the Judges of the Court, that they may there appeare at the time and place appointed, and also to give the same notice both unto the Plaintife and Defendant. 149. In all lower Courts, also, there shall be one sworne Gierke or Secretary who shall likewise hold the same order that is mentioned in our highest Court. 150. Our highest Court shall be carefull also to heare and judge all criminali actions, and especially cases of conspiracy or treason practised or plotted against us, or our Generall either in word or deed ; secondly, if any gives out dishonourable speeches against our Majesty; thirdly, or consulteth with the enemy to betray our Leaguer, Castle, Towne, Souldiers, or Fleet any wav what- soever; fourthly, If any there be partakers of such treason or treachery and reveale it not; fifthly, or any that hath held correspondency or intelligence MILITAEY LAW AND PRECEDENTS. 917 with the enemy ; sixthly, if any hath a spite or malice against us or our Country; seventhly, If any speake disgracefully, either of our owne Genaralls person or endeavours; eighthly, or that Intendeth treachery against our Gen- erall or his Under-Officers ; or that speaketh disgracefully of them. 1430 151. All questions in like manner happening betwixt Officers and their Souldlers, if they suspect our lower Court to be partiall anyway, then may they appeale unto our highest Court, who shall -decide the matter. 152. If a Gentleman or any Officer be summoned to appeare before the lower Court, for any matter of importance that may touch his life, or honour ; then shall the same be decided by our higher Court. 153. All civlU questions shall be in controversie in our lower Court, if the debt or fine extends unto five hundred Dollars or seventy-five pounds or above ; If the party complains of injustice they may thence appeale unto the higher Court, if so be they can first prove the injustice. 154. All other occasions that may fall out, be they civill, or be they criminall ; shall first come before the lower Court where they shall be heard and what Is there by good evidence proved, shall be recorded. 155. Any criminall action, that is adjudged in our lower Court, we command that the sentence be presented unto our Generall ; we will not have it presently put in execution, untill he gives command for it in our absence. But our selves being in person there present, will first take notice of it, and dispose afterwards of it, as we shall think expedient. 156. In our higher Court, the Generall Parforce, or his Lieutenant shall be the Plaintife, who shall be bound to follow the complaint diligently, to the end he may the better Informe our Councellors who are to doe Justice; if it be a matter against ourselves, then shall our owne Advocate defend our action before our Court. 157. The same power the Parforce of every Regiment shall have in our lower Court, which Parforce shall be bound, also to give notice of every breach of these Articles of warre, that the infringer may be punished. 158. Whatsoever fine is by the aforesaid Judges determined according to our Articles of warre, and escheated thereupon, shall be divided into three parts. Our owne parte of the fine we freely bestow upon the several Captains either of Horse or Foot, which is forfeited by their Officers and Souldlers; and the for- feiture of every Captain, we bestow upon their Colonell ; and the forfeiture of every Colonell we give unto our Generall. The other two parts, belonging either to the party to whom It Is adjudged, or to the Court, those leave we undisposed, the point of Treason onely excepted ; and this gift of ours unto our Officers, is to be understood to indure so long as the Army be in field, upon any strength or worke, and till they come home againe, after which time, they shall come under the law of the land like the other inhabitants. 159. Whensoever our highest Court is to sit, it shall be two houres before proclaimed through the Leaguer, that there is such an action criminall to be there tried, which is to be decided under the blue skies : but if it be an action civill, then may the court be holden within some tent, or otherwhere ; then shall the souldlers come together, about the place wliere the Court is to be holden, no man presuming to come too neere the table where the Judges are to sit; then shall our Generall come foremost of all, and the other Ms assoclats, two and two together, in which order, they all comming out of the Generalls tent, shall set themselves down in the Court, in the order before appointed; the Secretaries place shall be at the lower end of the table, where he shall 1431 take diligent notice in writing of all things declared before the Court; then shall the Generall Parforce begin to open his complaint before them, and the contrary party shall have liberty to answer for himself, untill the Judges be thoroughly informed of the truth of all things. 160. If the Court be to be holden in any house or tent, they shall observe the same order in following the Generall in their degrees, where they shall also sit as Is afore mentioned. 161. The matter being thoroughly opened and considered upon, according to the importance of it, and our whole Court agreeing in one opinion; they shall command their sentence concerning the same action, to be publikely there read in the hearing of all men, always reserving his Majesties further will and pleasure. , . ^^ , ^^ 162. In our lower court they shall also hold the same order ; savmg that the particular Court of every Regiment, shall be holden in their owne quarters.' 163. In this lower Court, they shall alwayes observe this order; namely, that the President sits at the bords end alone, the Captaines, Lieutenants, and 918 MHJTARY LAW AND PKECEDENTS. Ensignes on either side; so many Inferior Officers also upon each side, that so they may the better reason upon the matter amongst themselves ; Last of all, shall the Clerk or Secretary sit at the lower end of the Table; the one party standing upon one hand, and- tlie other upon the other. 164. So soon as the sentence is given the President shall rise up and all that sit vfith him, but doom being given by our Generall, that one of the parties must lose his head, hand, or the like ; then shall they command the Parforce to take him avi^ay to Prison, vyhich done, the Parforce shall send unto the Minister, to desire him to visit the Party, and to give him the Communion; but if the doom be passed in any lower Court, it shall be signified up unto the Generall in our absence, who shall either pardon the fact or execute the sentence. 165. No superiour Officer, Colonel or Captain, either of Horse or Foot, shall soUicit for any man that is lawfully convicted by the Court, either for any crime, or for not observing of these Articles of Warre; unlesse it be for his very neere kinsman, for whom nature compells him to intercede; otherwise the solliciter shall be held as odious as the delinquent and cashiered from his charge. 166. Whosoever is minded to serve us in these Warres, shall be obliged to the keepin of these Articles. If any out of presumption, upon any Strength, in any Leaguer, in the field, or upon any worke, shall doe the contrary, be he Native or be he Stranger, Gentleman or other, Processe shall be made out against him for every time, so long as he serves us in these warres in the quality of a Souldier. 167. These Articles of warre we have made and ordained for the welfare of our Native Countrey, and doe command that they be read every moneth publickly before every Regiment, to the end that no man shall pretend ignorance. We further will and command all, whatsoever Officers higher or lower, and all our common souldiers, and all others that come into our Leaguer amongst the souldiers, that none presume to doe the contrary hereof upon paine of rebellion, and the incurring of our highest displeasure; For the firmer confirmation whereof, we have hereunto set our hand and seale. SlONED IN THE LEAGUEK ROTAIi, IV, 1432 EXTRACT FROM THE " ENGLISH MILITARY DISCIPLINE " OF JAMBS II. (1686.) Or CouNCKLs or Wae oe Cotjets Martial. In an Army the Councel of War is always to Meet at the Generals Quarters or Tent, and none are called to it but the Lieutenant-Generals, the Major-Gen- erals, the Brigadiers, and the Colonels or Commanders of Bodies when the Matters concern their Regiments. Private Councels of War or Courts Martial in a Garison are either Held at the Governours House, at the Main Guard, or where the Governour orders. In a Camp, At the Colonels Tent, who causes 'Notice to be given to the Captains to be present. When all are met. The Governour or Colonel, or he who is to Sit as President, takes his place at the head of the Table, the Captains Sit about according to their Seniority (that is to say) The First Captain on the Right Hand of him that Presides, the Second on the Left, and so of the rest. And the Town-Major or the Aid-Major or Quarter-Master of the Regiment, who in the absence of the Judge-Advocate discharges his Office, is to Sit in his Place at the lower end of the Table. The Lieutenants, Sub-Lieutenants and Ensigns have right to enter into the Room where the Councel of War (or Court Martial) is held. But they are to stand at the Captains backs with their Hats ofE, and have no Vote. If the Councel be Called to Deliberate on some Matter of Consequence, The President having Opened it to the Court, Asks their Opinions. The youngest Officer gives his Opinion first, and the rest in order till it come to the President who speaks last. The Opinions of every one being set down in Writing, the Result Is drawn conformable to the Plurality of Votes which is Signed by the President onely. If the Councel of War, or Court-martial be held to judge a Criminal, the President and Captains having taken their places, and the Prisoner being brought before them. And the Informations read. The President Interrogates the Prisoner about all the Facts whereof he is accused, and having heard his Defence, and the Proof made or alleged against him. He is ordered to with- draw, being remitted to the Care of the Marshal or Jaylor. Then every one judges according to his Conscience, and the Ordinances or Articles of War. The Sentence is framed according to the Purality of Votes, and the Criminal being brought in again. The Sentence is Pronounced to him in the name of the Councel of War, or Court Martial. When a Criminal is Condemned to any Punishment- the Provost Martial 1433 causes the Sentence to be put in Execution ; And if It be a publick Pun- ishment, the Regiment ought to be drawn together to see it, that thereby the Soldiers may be deterred from offending. Before a Souldier be punished for any infamous Crime, he is to be publickly Degraded from his Arms, and his coat stript over his ears. A Councel of War or Court Martial is to consist of Seven at least with the President, when so many Officers can be brought together ; And if it so happen that there be not Captains enough to make up that Number, the inferiour Oflacers may be called in. 919 V. 1434 AKTICLES OP WAR OF JAMBS II. (1688.) RULES AND AETICLES TOE THE BErTTEB GOVERNMENT OE HIS MAJESTIES LAND- Forces in Pat. Abt. I. All Affioora nnrt Soldiers fnot having just Impediment) shall diligently fre- outnt Se S^vice and SermonT^n such Places as shall be appointed for the SL?nt Troop, or Company, wherein they serve; and such as either wilfully ?rnegUgently Absent themselves from Divine Service or Sermon, or else, being nreS do behave themselves undecently or irreverently during the same; If they be Officers! They shall be severely reprehended at a Court-Martial; But If privlte Soldiers, they shall for every such First Offence forfeit each man Twelve Pence? to be deducted out of their next Pay; And -for the Second Offence, shall forfeit Twelve Pence, and be laid in Irons for Twelve Hours; and for every Uke offence afterwards, shall suffer and pay in Uke manner. Art. II. If any Sutler or Seller of Ale, Beer, Wine, or any sort of Drinks, Bread, Victuals or other Commodities or Merchandise whatsoever, attending His Maiesties Forces, shall during the time of Divine Service, or Sermon, set any such thing to sale, he shaU forfeit the full value thereof, for the use of the Poor. Aet. III. Whosoever shall use any unlawful Oath or Execration (whether Officer or Soldier) shall incur the Penalties exprest in tjie first Article. Abt. IV. If any Officer or Soldier shaU presume to Blaspheme the Holy and Undi- vided 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 shall have his Tongue Bored through with a Red-hot Iron. Aet. V. If any Officer or Soldier shall Abuse or Profane 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 in- inflicted on him by a Court-Martial. 1435 And whosoever shall take any of the Utensils or Ornaments belonging or Dedicated to God's Worship, in any Church or Chappel, shall suffer Death for the Fact. Abt. VI. All Officers of what Quality or Condition soever, shall take the following Oath, which shall be Administered to them, by such Person or Persons, and in such Places as His Majesty, His General, Lieutenant General, or Commander In Chief of the Forces for the time being, shall appoint. THE oath of FIDELITY TO BE TAKEN BT EVERY OFFICEB AND SOLDIER IN THE ARMY. 1, A. B., Do Swear to be true and faithful to my Sovereign Lord King JAMES, and to His Heirs and Lawful Successors ; and to be Obedient in aU things to 920 MHITAEY LAW AND PEBCEDBNTS. 921 His General, Lieutenant General, or Commander In Chief of His Forces, for the time being, And will behave myself obediently towards my Superior OflScers In all they, shall command me for His Majesty's Service. And I do further Swear* That I will be a true, faithful, and obedient Servant and Soldier, every way performing my best Endeavours for His Majesty's Service, Obeying all Orders, and Submitting to all such Rules and Articles of War, as are or shall be Established by His Majesty ; and I do likewise Swear, That I believe. That it is not lawful upon any Pretence whatsoever, to take Arms against the King ; and that I do Abhor that Traiterous Position of taking Arms by His Authority against His Person, or against those that are Commissioned by Him. So help me Ood. Abt. VII. No Officer or Soldier shall use any Traiterous Words against the Sacred Per- son of the King's Most Excellent Majesty upon Pain of Death. Akt. VIII. Whosoever shall hold correspondence with any Rebel or Enemy of His Ma- jesty, or shall give them Advice or Intelligence either by Letters, Messages, Signs, or Tokens, or in any manner of way whatsoever, shall suffer Death. And whatever Regiment, Troop, or Company shall Treat with such Rebels or Enemies, or enter into any Condition with them without His Majesties Leave, or Leave of the General, Lieutenant General, or of the Chief Commander in his absence; and the officers of such Regiment, Troop, or Company who are found guilty shall die for it; and of the Soldiers who shall consent thereunto, every tenth M-an by Lot shall be Hanged, and the rest punished at the Discretion of the General Court-Martial ; But whatsoever Officers or Soldiers can prove that they did their utmost to resist and avoid such a Treaty, and were no Partakers of the Crime, they shall not only go free, but shall also be Rewarded for their Constancy and Fidelity. Art. IX. Whosoever shall go about to Entice or Persuade either Officer or Soldier 1436 to join or engage in any Traiterous or Rebellious' Act, either against the Royal Person of the King or Kingly Government, shall suffer Death for it ; And whoever shall not reveal to his Superior Officer such a conspiracy as 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. Aet. X. If any Officer or Soldier shall behave himself disrespectfully towards the Gen- eral, Lieutenant General, or other Chief Commander of the Army, or speak words tending to his Hurt or Dishonor, he shall be punished according to the Nature and Quality of the Offence by the Judgment of the General Court-Martial. Abt. XI. Whosoever shall presume in the Presence of the General, Lieutenant General, or other Commander in Chief, to draw his Sword with a purpose to do any Officer, or any of his fellow Soldiers mischief, shall suffer such Punishment as a Court-Martial shall think fit to Inflict upon him for the said Offence. Abt. XII. Whoever shall presume to violate any Safe Conduct or Protection given by His Majesty, the General, Lieutenant General, or other Commander In Chief (knowing the same) shall suffer Death, or such other punishment as shall be Inflicted on him by the General Court-Martial. Abt. XIII. No Man shall presume so far as to raise or cause the least Mutiny or Sedi- tion in the Army, upon Pain of Death, or such other Punishment as a Court- Martial shall think fit. And if any number of Soldiers shall presume to 922 MIUTAEY LAW AND PRECEDENTS. assemble to take Councel amongst themselves for the demanding their Pay, any Inferior Officers accessory thereunto, shall suffer Death for It, as the Heads and Ring-leaders of such Mutinous and Seditious Meetings ; And the Soldiers shall be punished either with death, or otherwise at the Discretion of the Gen- eral Court-Martial : And if any Captain being privy thereunto shall not suppress the same, or complain of It, he shall likewise be punished with Death, or such other Punishment as the General Court-Martial shall think fit. Art. XIV. No Officer or Soldier shall utter any words tending to Sedition or Mutiny upon pain of suffering such Punishment as shall be inflicted on him by a Court-Martial. And whosoever shall hear any Mutinous or Seditious Words spoken, and shall not with all possible speed reveal the same to his Superiour Officers, shall be punished as a Court-Martial shall think fit. Akt. XV. If any Inferior Officer or Soldier shall refuse to obey his Superior Officer, or shall quarrel with him, he shall be Cashiered, or suffer such Punishment as a Court-Martial shall think fit. 1437 But if any Officer or Soldier 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 Superior Officer upon any pretence whatsoever, he shall suffer Death, or such other Punishment as the General Court-Martial shall think fit. Aet. XVI. Every Soldier shall keep silence when the Army is Marching, 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 Punish- ment as a Court-Martial shall think fit, according to the Circumstance and Aggravation of the Fact. Art. XVII. All murders and wilful killing of any Person shall be punished with Death. Art. XVIII. All Robbery and Tlieft committed by any Person in or belonging to the Army, shall be punished with Death, or otherwise as the Court-Martial upon con- sideration of the Circumstances shall think fit. Art. XIX. Whoever shall in danger draw his Sword whilst his Colours are flying either in Battel, or upon the March, unless It be asainst the enemy, shall suffer such Punishment as a Court-Martial shall think fit; Art. XX. When any March is to be made, every Man who is sworn shall follow his Colours; and whoever shall witliout leave stay behind, or depart above a Mile from the Camp, or out of the Army without Licence, shall suffer such Punish- ment as shall be inflicted on him by a Court-Martial. Art. XXI. No person shall extort Free quarter, or shall commit any Waste or snoil or deface Walks of Trees, Parks, Warrens, Fishponds, Houses or 'Garden" tread down, or otherwise destroy Standing Corn in the Bar, or shall put their Horses into Medows without Leave from their Superior Officer upon oaln of Severe Punishment; But if any Officer or Soldier shall Sact Moneyf o? wUfully MILITARY LAW AND PRECEDENTS. 923 Burn any House, Barn, Stack of Corn, Hay or Straw, or any Ship, Boat or Carriage, or anything which may serve for the Provision of the Army, without Order from' the Commander in Chief, he shall suffer Death for it. Art. XXII. Whoever shall run from his Colours, or doth not defend them to the utmost of his Power, shall suffer Death. 1438 Art. XXIII. If any Officers Or Soldiers, Regiment, Troop, or Company, or Commanded Party, shall not behave themselves in Fight against an Enemy as they ought to do, they shall suffer such Punishment as the General Court-Martial shall inflict. Art. XXIV. When it shall please God that his Majesty's Forces shall beat the Rebels, or Enemy, every Man shall follow his Officer In the Chase; but whoever shall presume to Pillage or Plunder till the Rebels, or Enemy be entirely beaten, he shall sufCer Death, or such other Punishment as shall be pronounced against him by the General Court-Martial ; and the Pillage so gotten shall be forfeited to the use of the sick and maimed Soldiers. Art. XXV. In What Place soever it shall please God that the Rebels or Enemy shall be subdued or overcome, all the Ordnance, Ammunition and Victuals that shall be there found, shall be secured to his Majesties use, and for the better Relief of the Army ; and one-tenth part of the Spoil shall be laid apart towards the Relief of the sick and maimed Soldiers. Art. XXVI. All Officers whose Charge it is shall see the Quarters kept clean and neat upon pain of severe Punishment. Art. XXVII. No Officer shall lie out all Night from the Camp or Garison without his Superior Officer's Leave, upon pain of being punished for it as a Court-Martial shall think fit ; Nor shall any Soldier or Officer go any By-way to the Camp, or other than the Common Way laid out for all, upon pain of being punished as aforesaid. Art. XXVIII. No Soldier shall presume to make any alarm in the Quarters by shooting ofE his Musket in the Night after the Watch is Set, imless it be at an Enemy; upon pain of suffering such Punishment as a Court-Martial shall inflict. Art. XXIX. No Soldier shall in anger draw his Sword in any Camp, Post, or Garison, upon, pain of suffering such Punishment as a Court-Martial shall inflict upon him for the same. Art. XXX. When warning is given for Setting the Watch, by Beat of Drum, or Sound of Trumpet, if any Soldier shall absent himself without reasonable Cause, he shall be punished by Riding the Wooden Horse, or otherwise at the Discretion of the Commander. 1439 And whoever shall fail at the Beating of a Drum, or sound of a Trumpet, or upon an Alarm given, to repair to his Colours, with his Arms decently kept, and well fixed (unless there be an evident necessity to hinder him from the same) he shall either be put in Irons for it, or suffer such other Punishment as a Court-Martial shall think fit. 924 MIUTABY LAW AND PRECEDENTS. Abt. XXXI. Whoever makes known the Watchword without Order, or gives any other Word but what Is given by the Officer, shall suffer Death, or such other pun- ishment as the General Court-Martial shall think fit. Art.. XXXII. A Centinel who shall be found sleeping in any Post, Garrison, Trench or the like, (while he should be upon his Duty) shall suffer Death, or such other Punishment as the General Oourt-Martlal shall 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 the General Court-Martial shall think fit. And if any Soldier employed 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 ; of if he enter into any House, and there or elsewhere be found sleeping or drunk, whilst he should have been upon Service, he shall suffer Death, or such other Punishment as shall be inflicted upon him by the General Court-Martial. Akt. XXXIII. 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 the General Court-Martial shall Inflict. If any shall presume to beat or abuse his Host, or the Wife, Child, or Serv- ant of his Host, where he is Quartered, he shall be put in Irons for it : And if he do It a second time, he shall be further punished ; and the party wronged shall in both Cases have amends made him. And whoever shall force a Woman to abuse her (whether .she belong to the E]nemy, or not) and the fact be sufficiently proved, shall suffer Death for it. Abt. XXXIV. No Soldier or Officer shall use any reproachful or provoking Speech or Act to another upon pain of Imprisonment, and such further punishment as a Oourt- Martlal shall think fit. Nor shall any Officer or Soldier presume to send a Challenge to any other Officer or Soldier to fight a Duel ; neither shall any Soldier or Officer upraid another for refusing a Challenge; And we do acquit and discharge all men that have Quarrels offered, or Challenges made to them, of all Disgrace, or opinion of Disadvantage, since they but do the Duties of Soldiers who ought to subject themselves to Discipline; and they that provoke them, shall 1440 be proceeded against as Breakers of Discipline, and Enemies to Our Service: And whoever shall offend in either of these Cases, If it be an Officer, he shall be Cashiered ; and if a private Soldier, he shall Ride the Wooden Horse, and be further punished as a Court-Martial shall think fit. And If any Cotporal or other Officer Commanding a Guard, shall willingly or know- ingly suffer either Soldiers or Officers to go forth to a Duel, he shall be pun- ished for it by the Sentence of a Court-Martial. And all Officers of what Condition soever, have power to part and quell all Quarrels, Frays, or sudden Disorders between Soldiers and Officers, tho' of another Company, Troop or Regiment, and to commit the disorderly Persons to Prison, until their proper Officers be acquainted therewith. Whoever shall resist such an Officer (though of another Company, Troop, or Regiment) or draw his Sword upon him, shall be severely punished as the General Court-Martial shall appoint. And 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 die afterwards of any Wound there received, yet if they be Officers, they shall be cashiered ; and if common Soldiers, they shall be punished with Riding the Wooden Horse, or suffer such other Punishment as a Court-Martial shall direct. And lastly. In all Cases of Duels, the Seconds, and Oarrlera of Challenges, shaU be taken as Principals, and punished accordingly. MILITAEY LAW AND PKECEDENTS. 925 Akt. XXXV. 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, without order from his Majesty, the General, or other Commander in Chief of his Majesties Forces. Akt. XXXVI. If atiy Soldier be gick, wounded, or maimed in his Majesties Service, he shall be sent out of the Camp to some fit Place for his Recovery, where he shall be provided for by the Officer appointed to take care of sick and wounded Soldiers, and his Wages or Pay shall go on and be duly paid till it do's appear that he can be no longer serviceable in the Army, and then he shall be sent by Pass to his Countrey, with Money to bear his Charges in his Travel, or such other Provision shall be made for him, as his Majesty shall direct. Abt. XXXVII. All Commissions granted by his Majesty, the General, or Commander in Chief of his Majesties Forces, to any Officer in Pay, shall be brought to the Commis- sary of the Musters, and Secretary at War, who are to receive and Enter the same in a Book fairly written ; and no Commission-Officer shall be allowed In Muster, without a Commission from his Majesty, or the Commander in Chief for the time being, and the same Entered with the Commissary-General of the Musters, or his Deputies, and Secretary at War. 1441 Akt. XXXVIII. No Commission Officer after Enrollment and being Mustered, shall be Dis- missed or Cashiered without order from his Majesty, the General or Com- mander in Chief for the time being, or a General Court-Martial : But the Cap- tains with the approbation of their Colonels, or of the Governour of the Garison where they are, may discharge any Non-Commission Officer, or Private Soldier when they find cause, taking other Non-Commission Officers or Soldiers in their Places ; Provided that such Colonel or Governour shall forthwith certifie the Commissary General of the Muster, That (by their approbation) such Non- Commission Officers or Soldiers were discharged, and others taken into their Places respectively. And in Quarters and Garisons where they are only single Troops or Companies, the Captains certificates are forthwith to be sent and accepted by the Commissary-General, expressing the Day of each Non-Commis- sion Officers or Soldiers Discharge or Death, and who has been entertained tn his Place. Art. XXXIX. All Captains shall use their utmost Endeavours to have their Troops and Companies compleat and full, and no Soldiers Duty, either of Horse or Foot, shall be done by any other than the Soldier himself ; But in case of Sickness or Disability, or other necessary Cause, his Captain may dispence with his absence, without obliging him to find another to Serve in his stead. Abt. XL. If any Trooper or Dragoon shall lose or spoil his Horse, or any Foot Soldier 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 at his own Charge, with as good as were lost ; and if he be not otherwise able, the one half of his Pay Shall be deducted and set apart for the providlVig of it till he be re-furnished. Nor shall any Soldier 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 the General Court- Martial. And where Arms, or other Necessaries aforesaid shall be pawned, they are to be forfeited, and seized on for his Majesties use. 926 MILITAEY LAW AND PRECEDENTS. Art. XLI. All Officers and Soldiers, and also the Muster-Master, not duly observing these Orders and Instructions, and every of them respectively, shall be Cash- iered, or liable to such other Punishments as his Majesty, or Commander In Chief of the Forces, or a Court-Martial shall appoint. Aet. XLII. None shall presume to spoil, sell, or convey away any Ammunition delivered unto him, upon pain of suffering death, or such other punishment as the Gen- eral Court-Martial shall think fit. 1442 Art. XLIII. No Officer, Provider or Keeper of the Victuals or Ammunition for his Majesties Forces shall imbezel or willingly spoil or give a false Account of any part thereof to whom he is to make his Account, upon pain of suffering Death, or such other Punishment as the General Court-Martial shall think fit. Art. XLIV. No Commissary or Victualler shall bring or furnish unto the Camp any un- sound or unsavory Victuals of what kind soever, whereby sickness may grow in the Army, or the Service be hindred ; and if upon Examination before the General Court-Martial he shall be found guilty, he shall suffer such Punishment as they shall direct. Art. XLV. No Officer or Soldier shall be a Victualler in the Army upon pain of being punished at discretion. Art. XL VI. No Victualler or seller of Beer, Ale, or Wine belonging to the Army, shall Entertain any Soldier in his House, Booth, Tent or Hutt after the Warning- Piece, Tattoe or Beat of the Drum at night, or before the Beating of the Reveilles in the morning; Nor shall any Soldier within that time be any where but upon his Duty, or In his Quarters, upon pain of Punishment both to the Soldier and Entertainer at the Discretion of a Court-Martial. Art. XLVII. The Commission-Officers of every Regiment may hold a Court-Martial for that Regiment upon all necessary Occasions. 'The Provost-Martial of every Regiment shall have the same priviledge 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. Art. XLVIII. Such who are Judges in a General Court-Martial or in a Regimential Court- Martial, shall hold the same Rank in those Courts as they do in the Army for Orders sake, and they shall take an Oath for the due Administration of Justice according to these Articles, or (where these Articles do not assign any special Punishment) according to their consciences, the best of their Understandings, and the Custom of War in the like Cases ; and shall demean themselves orderly in the hearing of Causes, 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 dn equality of Votes, the President 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 Sentence. 1443 Abt. XLIX. At a General Court-Martial there shall be a Clerk who Is to be sworn to make true and faithful Records of all the Proceedings of that Court, and there shall be also such other Officers appointed both for that, and also for the Regimen- MILITARY LAW AND PRECEDENTS. 927 tal Court-Martial as shall be necessary ; and the General Court-Martial may ap- point and limit the Fees of the Provost-Martlal-General as they shall think fit. Art. L. All controversies either between Soldiers and their Captains or other Officers, or between Soldier and Soldier relating to their Military Capacities, shall be summarily heard and determined at the next Court-Martial of the Regiment. Akt. LI. If in any Matter which shall be Judged in any of the aforesaid Regimental Courts-Martial either or the Parties shall find himself aggrieved, he may appeal to the General Court-Martial, who are to take care that if the Party appealing make not good his Suggestion, Reconipence be made to the other for the trouble and Charge of such an Appeal. Aet. LII. In all Criminal Causes which concern the Crown, His Majesties Advocate- General or Judge-Advocate of the Army, shall inform the Court and prosecute on his Majesties behalf. Art. LIII. No Oflicers or Soldiers shall presume to hinder the Provost-Martial, his Lieutenant or Servant in the Execution of their Office upon pain of Death or such other Punishment as a Court-Martial shall think fit; And all Captains, Oflicers and Soldiers shall do their utmost to apprehend and bring to punish- ment all OfEenders, and shall assist the Officers of His Majesties Army or Forces therein, especially the said Provost-Martial, His Lieutenant and Servants ; and if the Provost-Martial or his Officers require the assistance of any Officer or Soldier 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. Art. LIV. If any Officer or Soldier who shall presume to draw his Sword in any place of judicature while the Court is sitting, he shall suffer such punishment as shall be inflicted on him by a Court-Martial. And the Provost-Martial of his Majesties Army is hereby empowered and directed by his own authority to apprehend such Offenders. Art. LV. If any Soldier being committed for any Offence shall break Prison, 1444 the said Provost-Martial-General shall by his own Authority apprehend him, and the Offender shall suffer Death. Art. LVI. If any Fray shall happen within the Camp or place of Garison in any of the Soldiers Lodgings, or where they meet, it shall be inquired into by the Officers of the Regiment, and the Beginners and pursuers thereof punished according to the quality of the Offence. Art. LVII. 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 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 punished at the discretion of a Court-Martial. Art. LVIII. If any Colonel or Captain shall force or take any thing away from a private Soldier, such- Colonel or Captain shall be punished according to the quality of the Offence, by the Judgment of a General Court-Martial. 928 MILITAEY LAW AND PRECEDENTS. And if a Soldier shall be wronged, and shall not appeal to the Court, or his Snperiour Commander, but take his ofl^n Satisfaction for it, he shall be punished by the Judgment of a Court-Martial. Abt. LIX. If any Soldier die, no other shall take or spoil his Goods, upon pain of restoring double the value to him to whom they belong, and of such further Punishments as a Court-Martial shall think fit. But the Captain of the Com- pany of which such a Soldier was, 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 die the Chief Commander shall take care of reserving his Estate in like manner. Abt. LX. No Provost-Martial shall refuse to receive or keep a Prisoner committed 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 Offence for which the Prisoner was apprehended deserv'd Death, the Provost-Martial failing to receive and keep him as aforesaid shall be liable to the same Punishment. Akt. LXI. If any Person be committed by the Provost-Martial's own Authority without other Command, he shall acquaint the General or other Chief 1445 Commander with the Cause within twenty-four hours, and the Provost- Martial shall thereupon dismiss him unless he have Order to the con- trary. Abt. LXII. No man shall presume to use any Braving or Menacing Words, Signs or Ges- tures where any of the aforesaid Courts of Justice are sitting, upon pain of suffering such Punishment as the Court-Martial shall think fit. AST. LXIII. Whatever is to be published or generally made known, shall be done by Beat of Drum, or the sound of Trumpet, That no man may pretend Ignorance thereof : And if afterwards any one shall be found disobedient or transgressing what is so Published, he shall be punished according to these Articles, or the quality of the Fact. Abt. LXIV. All other faults, misdemeanours and Disorders not mentioned in these Articles, shall be punished according to the Laws and Customs of War, and dis- cretion 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 Offence by these Articles, and the Laws and Customs of War. VI. 1446 THE FIRST BRITISH MUTINY ACT. (1689.) An Act for punishing Officers or Soldiers who shall Mutiny or Desert their Majesties Service. Whereas the falsing of keeping a standing Army within this Kingdome in time of peace uulesse It be with consent of Parlyament is against Law. And whereas it is judged necessary by their Majestyes and this present Parlyament That dureing this time of Danger severall of the Forces which are now on foote should be continued and others raised for the Safety of the Kingdome for the common defence of the Protestant Religion and for the reducing of Ireland. And whereas noe man may be forejudged of Life or Limbe, or subjected to any Kinde of punishment by Martiall Law, or in any other manner than by the judgment of his Peeres, and according to the Knowne and Established Laws of this Realme. Yet, nevertheless, it being requisite for retainelng such Forces as are or shall be raised dureing this exigence of Affaires in their Duty an exact Discipline be observed. And that Soldiers who shall Mutiny or Stirr up Sedition, or shall desert Their Majestyes Service be brought to a more exemp- lary and speedy Punishment than the usuall forms of Law will allow : Bee it therefore Enacted by the King and Queenes most Excellent Majestyes by and with the Advice and Consent of the Lords Spirituall and Temporall and Commons in this present Parlyament assembled, and by authorities of the same. That from and after the Twelfth day of Aprill in the yeare of our Lord One thousand six hundred eighty-nine every person being in Their Majestyes Service in the Army, and being mustered and in pay as an Officer or Soldier who shall at any time before the Tenth day of November in the yeare of our Lord One thousand six hundred eighty-nine, excite, cause, or joyne in any mutiny or sedition in the Army, or shall desert Their Majestyes Service in the Army, shall suffer death or such other punishment as by a Court Martiall shall be inflicted. 3. And it is hereby further enacted and declared. That Their Majestyes, or the Generall of their Army for the time being, may by vertue of this Act have full power and authoritie to grant Commissions to any Lieftenants, Generall or other Officers, not under the degree of Collonels, from time to time to call and assemble Court-Martialls for punishing such ofEences as aforesaid. 4. And it is hereby further enacted and declared. That noe Court-Martiall which shall have power to inflict any punishment by vertue of this Act for the offences aforesaid shall consist of fewer than thirteene, whereof none to be under the degree of Captaines. 5. Provided alwayes. That no field Officer be t»yed by other than field Offi- 1447 cers. And that such Court Martial shall have power and authoritie to ad- minister an oath to any witness in order to the examination or tryall of the offences aforesaid. 6. Provided alwayes. That nothing in this Act contained shall extend or be construed to exempt any officer or soldier whatsoever from the ordinary processe of Law. 7. Provided alwayes, That this Act, or anything therein contamed shall not extend or be any wayes construed to extend to or concerne any of the Militia Forces of this Kingdome. 8. Provided alsoe, That this Act shall continue and be in force untill the said Tenth day of November in the said yeare of our Lord One thousand six hundred eighty-nine and noe longer. 9. Provided always, and bee it enacted. That in all tryalls of offenders by Courts Martiall to be held by vertue of this Act, where the offence may be punished by Death, every Officer present at such tryall, before any proceeding he had thereupon, shall take an oath upon the Evangelists before the Court 440593 O - 42 - 59 929 930 MILJTABY LAW AND PRECEDENTS, (and the Judge Advocate or his Deputy shall, and are hereby respectively authorized to administer the same) In these words, that Is to say : — " You shall well and truly try and determine according to your evidence the matter now before you between Our Soveralgne Lord and Lady the King and Queene's Majestyes and the Prisoner to be tried. " So helpe you God." 10. And noe Sentence of Death shall be given against any offender In such case by any Court Martiall unlesse nine of thirteene Officers present shall concur therein. And if there be a greater number ot Officers present, then the judgement shall passe by the concurrence of the greater part of them soe sworne, and not otherwise ; and noe Proceedings, Tryall, or Sentence of Death shall be had or given against any Offender, but betweene the hours of eight in the morning and one in the afternoone. The British Articles of War of 1718, promulgated by the Crown under the Act of 4 Geo. I, c. 4, (see ante, Vol. I, p. 7,) are given " in substance " In Tindal's Rapin's History of England, vol. IV, book XXVII, p. 559, and are extracted In the Journal of the Military Service Institution for June, 1886. VII. 1448 BRITISH ARTICLES OF WAR OF 1765, IN FORCE AT THE BEGIN- NING OF OUR REVOLUTIONARY WAR. BULES AND ABTICLES FOR THE BETTEK GOVERNMENT OF OTJR HORSE AND FOOT GUARDS, AND AIX OTHER OUR FORCES IN OUR KINGDOMS OF GREAT BRITAIN AND IRELAND, DOMINIONS BEYOND THE SEAS, AND FOREIGN PARTS. Section I. — Divine Worship. George B. Art. I. All Officers and Soldiers, not having just Impediment, shall diligently frequent Divine Service and Sermon, in the Places appointed for the assembling of the Regiment, Troop, or Company, to which they belong ; such as wilfully absent themselves, or, being present, behave indecently or irreverently, shall, if Com- missioned 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 offending 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 Com- pany to which the Offender belongs. Art. II. Whatsoever Officer or Soldier shall use any unlawful Oath or Execration, shall incur the Penalties expressed in the First Article. Art. III. 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. Art. IV. Whatsoever Officer or Soldier shall profane any Place dedicated to Divine Worship, or shall offer Violence to a Chaplain of the Army, or to any other Minister of God's Word ; he shall be liable to such Penalty or corporal Punish- ment as shall be inflicted on him by a. Court-martial. 1449 ART. V. No Chaplain who is commissioned to a Regiment, Company, Troop, or Gar- rison, shall absent himself from the said Regiment, Company, Troop, or Gar- rison (excepting in case of Sickness or Leave of Absence) upon Pain of being brought to a Court-Martial, and punished as their Judgment and the Circum- stances of his Offence may require. Art. VI. Whatsoever Chaplain to a Regiment, 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. 932 MLLITABY LAW AND PEECEDENTS. Section II. — Mutiny. Art. I. Whatsoever Officer or Soldier shall presume to use traiterous or disrespectful Words against the Sacred Person of his Majesty, or any of the Royal Family ; if a Commissioned Officer, he shall be cashiered ; if a Non-commissioned Officer or Soldier, he shall suffer such Punishment as shaU be inflicted upon him by the Sentence of a Courl-martial. Abt. II. Any Officer or Soldier who shall behave himself with Contempt or Dis- respect towards the General, or other Commander in Chief of Our Forces, or shall speak Words tending to his Hurt or Dishonour, shall be punished accord- ing to the Nature of his OfEence, by the Judgment of a Court-martial. Akt. III. 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, Detachment, or Guard, on any Pretence whatsoever, shall suffer Death, or such other Punishment as by a Court-martial shall be inflicted. Akt. IV. Any Officer, Non-commissioned Officer, or Soldier, who being present at any Mutiny or Sedition, does not use his utmost Endeavour to suppress the same, or coming to the Knowledge of any Mutiny or 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. Abt. V. 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 whatsoever, or 1450 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 £!ourt-martiaL Section III. — Of Inlistmg Soldiers. Abt. I. Every Non-commissioned Officer and Soldier, who shall inllst himself In Our Service, shall, at the Time of his so Inlisting, or within Pour Days after- wards, have the Articles against Mutiny and Desertion read to him, and shall, by the Officer who 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 in Foreign Parts, where Recourse cannot be had to the Civil Magistrate, before the Jvidge Advocate, and In his presence shall take the following Oath: I Swear to be true to our Sovereign Lord King GEORGE, and to serve him lionestly 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 Oenerals 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. MILITARY LAW AND PRECEDENTS. 933 Akt. II. After a Non-commlssloned 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 Regiment into which he was Inlisted ; or Commanding officer, where no Field Officer of the Regiment is In Oreat B7-itam. Section IV. — Musters. Akt. I. Every Officer commanding a Regiment, Troop, or Company, shall, upon the Notice given to him by the Commissary of the 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. AST. II. Every Colonel or other Field Officer commanding the Regiment, Troop, or Company, and actually residing with it, may give Furloughs to non-commis- sioned 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 in- 1451 ferior Officer commanding the Troop or Company (his Field Officer not being present) 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, excepting some extraordinary Occasion shall require it, of which Occasion the Field Officer present with, and commanding the Regiment, is to be the Judge. Abt. III. At every Muster the Commanding Officer of each Regiment, Troop, or Com- pany 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 lilie 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 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 to Our Commissary's Office within Twenty Days after such Muster being taken; on the Failure thereof, the Commissary so offending shall be discharged from Our Service. Abt. IV. 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. Aet. V. 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 suffer such other Penalty as by the Act of Parliament is for that Purpose inflicted. Abt. VI. Any Commissary who shall be convicted of having taken Money by way of Gratification on the mustering any Regiment, Troop, or Company, or on the signing the Muster-rolls, shall be displaced from his Office, and suffer such other Penalty as by the Act of Parliament is inflicted. 934 MILITARY LAW AND PRECEDENTS. AST. VII. 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 duty as a Soldier, shall be deemed guilty of having made a false Muster, and shall sufEer accordingly. 1452 Section V. — Returns. Abt. I. Every Officer who shall knowingly make a false Return to TTs, to the Com-, mander in Chief of our Forces, or to any his superior Officers 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. Aet. II. The Commanding Officer of every Regiment, Troop, or Independent Com- pany, or Garrison in South Britain, shall, in the Beginning of every Month, remit to the Commander in Chief of Our Forces, and to Our Secretary at War, an exact Return of the State of the Regiment, 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 : Who- ever shall be convicted of having, through Neglect or Design, omitted the send- ing such Returns, shall be punished according to the Nature of his Crime by the Judgment of a General Court-Martial. Art. III. 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 Chief; which Returns shall from time to time be remitted to Us, as it shall be best for Our Service. Abt. IV. It is Our Pleasure, That exact Returns of the State of Our Garrisons at Gibraltar and Port Mahon, and of Our Regiments, Garrisons, and Independent Companies in 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 VI. — Desertion, Abt. I. All Officers and Soldiers, who having received Pay, or having been duly In- Hsted 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. Abt. II. Any Non-commissioned Officer or Soldier, who shall, without Leave from his Commanding Officer, absent himself from his Troop or Company, or from any Detachment with which he shall be commanded, shall, upon being con- victed thereof, be punished accordihg to the Nature of his Offence at the Dis- cretion of a Court-martial. 1453 Abt. III. 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 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, MILITAEY LAW AND PRECEDENTS. 935 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. Aet. IV. Whatsoever Officer or Soldier shall be convicted of having advised or per- suaded any other Officer or Soldier to desert Our Service, shall suffer such Punishment as shall be Inflicted upon him by the Sentence of a Court-martial. Section VII. — Quarrels and Sending Challenges, Abt. I. 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 Sol- dier, Imprisoned, and of asking Pardon of the Party offended, in the Presence of his Commanding Officer. Aet. II. 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 corporal Pun- ishment, at the Discretion of a Court-martial. Abt. III. 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. Abt. IV. All Officers, of what Condition soever, have power to part and quell all Quar- rels, 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 superior Officers shall 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. 1454 Abt. V. Whatsoever Officer or Soldier shall upbraid another for refusing a Challenge, shall himself be punished as a Challenger; and We hereby acquit and dis- charge 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 have only acted in Obedience to Our Orders, and done their Duty as good Soldiers, who subject themselves to Discipline. Section VIII. — Buttling. Abt. I. 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 Divine Service or Sermon, on the Penalty of being dismissed from all future SuttUng. Abt. II. All Officers, Soldiers, and Suttlers, shall have full Liberty to bring into any of Our Forts or Garrisons, any Quantity or Species of Provisions, eatable or drinkable, except where any Contract or Contracts are &r shall be entered into by Us, or by Our Order, for furnishing such Provisions, and with re- spect only to the Species of Provisions so contracted for. 936 MILITAKY LAW AND PRECEDENTS. Akt. III. A!l Governors, Xleutenant Governors, and Officers commanding In Our FortS, Ban-acks, or Garrisons, 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 to Us for their Neglect. Abt. IV. No Governors, or Officers, commanding in any of Our Garrisons, Forts, or Barracks, shall either themselves exact exhorbitant 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, which are brought into the Garrison, Fort, or Bar- racks, for the use of the Soldiers, on the Penalty of being discharged from our Service. Section IX. — Quarters. Art. I. No Officer shall demand Billets for Quartering more than his effective Men ; nor shall he quarter any Wives, Children, Men or Maid Servants, in the Houses assigned for the Quartering of Officers or Soldiers, without the 145.'5 Consent of the Owners ; nor shall he take Money for the freeing of Landlords from the Quartering of Officers or Soldiers : If a Commis- sioned Officer so offending, he shall be cashiered ; if a Non-commissioned Officer, he shall be reduced to a private Centinel, and suffer such corporal Pun- ishment as shall be inflicted upon him by the Sentence of a Court-martial. Abt. II. Every Officer commanding a Regiment, 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 Oppor- tunity, to remit Duplicates of the said Certificates to Our Paymaster General : Any Commanding Officer who shall refuse or neglect the making up such Accounts, and certifying the same as is above directed, shall be cashiered. Art. hi. The Commanding Officer of every Regiment, Troop, or Company, or Detach- ment, shall, upon their first coming to any City, Town, or Village, where they are to remain in Quarters, cause publick Proclamation to be made, signifying. That if the Landlords or other Inhabitants suffer the Non-commissioned Officers or Soldiers to contra.ct 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. Art. IV. If, after publick Proclamation to be made, the Inhabitants shall notwith- standing suffer the Non-commissioned Officers and Soldiers to contract Debts beyond what the Money issued out, 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. MILITAE"? LAW AND PRECEDEIirTS. 937 Abt, V. Every Officer commanding in Quarters, Garrisons, or on a March, shall k«ep good Order, and to the utmost of his Power redress all such abuses or dis- orders which may be committed by any Officer or Soldier under his Command ; if, upon Complaint made to him of Officers or Soldiers beating, or 1456 otherwise ill-treating of their Landlords, or of extorting more from them than they are obliged to furnish by Law; of disturbing Fairs 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 Reparation made to the Party or Parties injured, as far as Part of the Offender's Pay shall enable him or them, shall, upon Proof thereof, be punished by a General Court-martial, as if he himself had com- mitted the Crimes or Disorders complained of. Section X. — Carriages. The Commanding Officer of every Regiment, Troop, 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 oH Parliament ; taking Care not himself to abuse, nor to suffer any Persons under his Command to beat or abuse the Waggoners, 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 Sums due for the Use of such Carriages, and the Name of the Regiment, Troop, or Company in whose Service they were employed, shall be cashiered, or be otherwise punished ac- cording to the Degree of his Offence by a General Court-martial. Section XI. — Of Crimes Punishable by Law. Art. I. Whenever any Officer or Soldier shall be accused of a capital Crime, or of having used Violence, or committed any Offence against the Persons or Prop- erty 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 Endeavours 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 Commanding Officer ''or Officers shall willfully neglect or shall refuse, upon the Application aforesaid, to deliver over such accused Person or Persons to the Civil Magistrates, or to be aiding and assisting to the Officers of Justice in apprehending such Person or Persons, the Officer or Officers so offending shall be cashiered. Aet. II. 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 1457 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 XII. — Of Redressing Wrongs. Abt. I. If any Officer shall think himself to be wronged by his Colonel, or the Com- manding Officer of the Regiment, and shall, upon due Application made to him, be refused to be redressed, he may complain to the General, command- ing iu Chief, of Our Forces, in order to obtain Justice; who is hereby required 938 MILITARY LAW AND PEBCEDENTS. to examine Into the said Complaint; and either by himself, or by Our Sec- retary at War, to make his Report to Us thereupon, in order to receive Our further Directions. Abt. II. If any inferior Officer or Soldier shall think himself wronged by his Cap- tain, or other Officer commanding the Troop or Company to which he belongs, he is to complain thereof to the Commanding Officer of the Regiment, who Is hereby required to summon a Regimental Court-mactial, 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 ground- less, the Person so appealing shall be punished at the Discretion of the said General Court-martial. Section XIII. — Of Stores, Ammunition, PRECEDENTS. Abt. 37. Any non-commissioned officer or soldier who shall be convicted at a regimental conrt-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. Abt. 38. Every non-commissioned officer or soldier who shall be convicted before a court-martial of having sold, lost, or spoiled, through neglect, his horse, arms, clothes, or accoutrements, shall undergo such weekly stoppages (not exceeding the half of his pay) as such court-martial shall judge suf- ficient, for repairing the loss or damage; and shall suffer confinement, or such other corporeal punishment as his crime shall deserve. Abt. 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. Abt. 40. Every captain of a troop or company is charged with the arms, accoutrements, ammunition, clothing, 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. Abt. 41. 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. 1515 Art. 42. No officer or soldier shall He 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 court- martial. Abt. 43. Every non-commissioned officer and soldier, shall retire to his quar- ters or tent at the beating of the retreat ; in default of which he shall be pun- ished according to the nature of his offense. ' Abt. 44. No officer, non-commissioned officer, or soldier shall fail In repair- ing, at the time fixed, to the place of parade, of exercise, or other rendezvous 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 dismissed or relieved, on the penalty of being punished, according to the nature of his offense, by the sentence of a court-martial. Abt. 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. Abt. 46. Any sentinel who shall be found sleeping upon his post, or shall leave it before he shall be regularly relieved, shall suflfer death, or such other punishment as shall be inflicted by the sentence of a court-martial. Art. 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 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 discretion of a regimental court-martial. Abt. 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 judgment of a general court-martial. Abt. 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 quar- ters, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court-martiaL Abt. 50. Any officer or soldier who shall, without urgent necessity, or with- out the leave of his superior officer, qdit his guard, platoon, or division, shall be punished, according to the nature of his offense, by the sentence of a court-- martial. Abt. 51. 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 MtLITASY LAW AiSTD PRECEDENTS. 981 of the TTnited States, employed in any parts out of the said States, upon pain of death, or such other punishment as a court-martial shall direct. Aet. 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 or ammunition, or who shall quit his post or colors to plunder and pillage, every such offender, being duly convicted 1516 thereof, shall suffer death, S)r such other punishment as sha-U be ordered by the sentence of a general court-martial. Abt. 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 such other punishment as shall be ordered by the sentence of a general court-martial. Abt. 54. All officers and soldiers are to behave themselves orderly in quar- ters 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 meadoSvs, 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 penal- ties 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. Art. 55. Whosoever, belonging to the armies of the United States in foreign parts, shall force a safeguard, -shall suffer death. Akt. 56. Whosoever shall relieve the enemy with money, victuals, or ammuni- tion, 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. Art. 57. Whosoever shall be convicted of holding correspondence with, or ^vlng Intelligence to, the enemy, either directly or indirectly, shall suffer death, or such othet punishment as shall be ordered by the sentence of a court-martial. Art. 58. All public stores taken in the enemy's camp, towns, forts, or maga- zines, whether of artillery, ammunition, clothing, forage or provisions, shall be. secured for the service of the United States; for the neglect of which the commanding officer is to be answerable. Aet. 59. If any commander of any garrison, fortress, or post shall be com- pelled, 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 c6nvicted of having so offended, shall suffer death, or such other punishment as shall be inflicted upon them by the sentence of a court-martial. Art. 60. All sutlers and retainers to the camp, and all persons whatsoever, 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 discipline of war. Abt. 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 regi- ment, troop, or company to which such officers belong, they shall do duty and take rank both in courts-martial and oil detachments which shall be composed of their own corps, according to the commissions by which they are mustered in the said corps. Art. 62. If, upon marches, guards, or in quarters, different corps of the army shall happen to join, or to do duty together, the officer highest in 1517 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. Art. 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 to any duty beyond the line of their immediate 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, at the discretion of the President, from one corps to another, regard being paid to rank. Art. 64. General courts-martial may consist of any number of commissioned officers, from five to thirteen, inclusively ; but they shall not consist of less than 982 MIIITAEY LAW AITD PRECEDENTS. thirteen where that number can be convened without manifest Injury to the service. Aet. 65. Any general officer commanding an army, or Colonel commanding a separate department, may appoint general courts-martial whenever necessary. But no sentence of a court-martial shall be carried into execution 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 execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United States for his confirmation or disapproval, and orders in 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. Abt. 66. Every officer commanding a regiment or corps may appoint, for his own regiment or corps, courts-martial, to consist of three commissioned 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 commissioned officers, and decide upon their sentences. Art. 67. No garrison or regimental court-martial shall have the power to try capital cases or commissioned officers; neither shall they inflict a fine exceed- ing one month's pay, nor imprison, nor put to hard labor, any non-commissioned officer or soldier for a longer time than one month. Art. 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. Art. 69. The judge advocate, or some person deputed by him, or by the general, or officer commanding the army, detachment, or garrison, shall prose- cute in the name of the United States, but shall so far consider himself 1518 as counsel for the prisoner, after the said prisoner shall have made his plea, as to objiect 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 admirilster to each member of the court, before they proceed upon any trial, the following oath, which shall also be taken by al\ members of the 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 befdre you, between the United States of America and the prisoner to 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,' without partiality, favor, or affection ; and if any doubt should arise, not explained by said Articles, according to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authority; neither will you disclose or discover the vote or opinion of any 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 members, the president of the court shall administer to the judge advocate, or person officiating as such, an oath in the following words ; " 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." Abt. 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 prisoner had regularly pleaded not guilty. Abt. 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, de- MILITABY LAW AND PRECEDElirTS. 983 termlne the relevan<3y or validity, and decide accordingly; and no challenge to more than one member at a time shall be received by the court. Abt. 72. All the members of a court-martial ate to behave with decency and calmness; and in giving their votes are to begin with the youngest in com- mission. Aet. 73. All persons who give evidence before a court-martial are to be ex- amined on oath or- affirmation, in the following form. "Tou swear, or affirm (as the case may be), 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." Abt. 74. On the trials of cases not capital, before courts-martial, the depo- sition 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 prosecutor and person accused are present at the taking the sama, or are duly notified thereof. Abt. 75. No officer shall be tried but by a general court-martial, 1519 nor by officers of an inferior rank, if it can be avoided. Nor shall any proceedings 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 court-martial, require immediate example. Abt. 76. No person whatsoever shall use any menacing words, signs, or ges- tures, 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. Abt. 77. Whenever any officer shall be charged with a crime, he shall be ar rested and confined in his barracks, quarters, or tent, and deprived of his sword by the commanding officer. Ajid any officer who shall leave his confinement before he shall be set at liberty by his commanding officer, or by a superior of- ficer, shall be cashiered. Abt. 78. Non-commissioned officers and soldiers, charged with crimes, shall be confined until tried by a court-martial, or released by proper authority. Abt. 79. No officer or soldier who shall be put in arrest shall continue in con- finement more than eight days, or until such time as a court-martial can be assembled. Abt. so. 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. Art. 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. Abt. 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 command- ing officer, of their names, their crimes, and the names of the officers who com- mitted them, on the penalty of being punished for disobedience or neglect, at the discretion of a court-martial. Aet. 83. Any commisioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service. Abt. 84. In cases where a court-martial may think it proper to sentence 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. Aet. 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. Aet. 86. The commanding officer of any post or detachment. In which 1520 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, re- port 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 d«4 MILITAEY LAW AND PBEGEDENTS'. necessary witnesses, to be transported to the place where the said court shall be assembled. Abt. 87. No person shall be sentenced to suffer death but by the concurrence of two-thirds of the members of a general cojtrt-martlal, nor except In the cases herein expressly mentioned ; nor shall more than fifty lashes be inflicted on any offender, at the discretion of a court-martial ; and no officer, non-com- missioned officer, soldier, or follower of the army, shall be tried a second time tor the same offense. Abt. 88. No person shall be liable to be tried and punished by a general court-martial for any offense which shall appear to have been committed 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. Abt. 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 execution, he may suspend, until the pleasure of the President of the United States can be known ; which suspension, together with copies of the proceedings 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 mitlgatef any punishment ordered by such court to be inflicted. Abt. 90. 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 of War"; which said original proceedings and sentence shall be carefully kept and preserved in the office of said Sec- retary, to the end that the persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof. The pacty 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. Akt. 91. In cases where the general, 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 li^ the question. 1521 Art. 92. The proceedings of a court of inquiry must be authenticated by the signature of the recorder and tlie 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 pur- poses, and may be considered as engines of destruction to militarji, meri^ in the hands of weak and envious commandants, they are hereby prohibited,\nnless directed by the President of the United States, or demanded by the accused. Abt. 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 evidence. 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, accu- rately and impartially record the proceedings of the court, and the evidence to be given In the case in hearing. So help you Ood." The witnesses shall take the same oath as witnesses sworn before a court- martial. Art. 94. When any commissioned officer shall die or be killed in the servicfii of the United States, the major of the regiment, or the officer doing the major's MILITARY LAW AKD PKECEDENTS. 985 duty In his absence, or in any post or garrison, the second officer In command, or the assistant military agent, shall Immediately secure all his effects or equipage, then in camp or quarters, and shall make an inventory thereof, and forthwith transmit the same to the office of the Department of War, to the end that his executors or administrators may receive the same. Abt. 95. When any non-commissioned officer or soldier shall die, or 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 commissioned officers, take an account of what effects he died possessed of, above his arms and accoutre- ments, and transmit the same to the office of the Department of War, which said effects are to be accounted for, and paid to the representatives of such deceased non-commissioned officer or soldier. And in' case any of the officers, so authorized to take care of the effects of deceased officers and soldiers, should, before they have accounted to their representatives for the same, have occasion to leave the regiment or post, by preferment or otherwise, they shall, before they be permitted to quit the same, deposit in the hands of the commanding officer, or of the assistant military agent, 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. Aet. 96. All officers, conductors, gunners, matrosses, drivers, or other per- sons whatsoever, receiving pay or hire in the service of tlie artillery, or corps of engineers 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 of the other troops iu the service of the United States. Abt. 97. The officers and soldiers of any troops, whether militia or 1522 others, being mustered and in pay of the United States, 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 and 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 com- posed entirely of militia officers. Art. 98. All officers serving by commission from the authority of any par- ticular State, shall, on all detachments, courts-martial, or other duty, wherein they may be employed in conjunction with the regular forces of the United States, take rank next after all officers of the like grade in said regular forces, notwithstanding the commissions of such militia, or State officers may be elder than the commissions of the officers of the regular forces of the United States. Abt. 99. AU crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to 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. Aet. 100. The President of the United States shall have pOwer to prescribe the uniform of the army. Aet. 101. The foregoing articles are to be read and published, once in every six months, to every garrison, regiment, troop, or company, mustered or to be mustered, in the service of the United States, and are to be duly observed and obeyed by all officers and soldiers who are, or shall be, in said service. Sec. 2. And be it further enacted. That in time of war, all persons not citi- zens of, or owing allegiance, to, the United States of America, who shaTl be found lurking as spies in or about the fortifications or encampments of the armies of the United States, or any pf them; shall suffer death, according to the law and usage of nations, by sentence of a general court-martial. , Sec. 3. And he it further enacted, That the rules and regulations by which the armies of the United States have heretofore been governed, and the re- solves, of Congress thereunto annexed, and respecting the same, shall hence- forth be void and of no effect, except so far as may relate to any transac- tions under them prior to the promulgation of this act, at the several posts and garrisons respectivelyj occupied by any part of the army of the United Statos. ^-HI 1523 " AMERICAN ARTICLES OF WAR OF 1874. ; V..,__^^^ [As Enacted June 22, 187 4.] ^^^^ Sec. 1342, (Rev. Sts.)— The armies of the United States shall be governed by tlie following rules and articles. The word ofRcer, as used therein, shall be understood to designate commissioned officers ; the word soldier shall be under- stood to include non-commissioned officers, musicians, artificers, and privates, and other enlisted men, and the convictions mentioned therein shall be under- stood to be convictions by court-martial. Article 1. — Every officer now in the army of the United States shall, within six months from the passing of this Act, and every officer hereafter appointed shall, before he enters upon the duties of his office, .subscribe these rules and articles. Akt. 2. — These rules and articles shall be read to every enlisted man at the time of, or within six days after, his enlistment, and he shall thereupon take tin oath or affirmation in the following form : " I, A. B., do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever; and that T will obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles of war." This oath may be taken before any commis- sioned officer of the Army. Art. 3. — Every officer who knowingly enlists or musters into the military service any minor over the age of sixteen years without the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated person, ot any 'deserter from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense shall, upon conviction, be dismissed from the service, or suffer such other punishment as a court-mak-tial may direct. Art. 4. — No enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field officer of the regiment to which he belongs, or by the commanding officer, when no field-officer is present ; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court- martial. Art. 5. — Any officer who knowingly musters as a soldier a person who is not a soldier shall be deemed guilty of knowingly making a false muster, and punished accordingly. Art. 6. — Any officer who takes money, or other thing, by way of grati- 1524 fication, on mustering any regiment troop', battery, or company, or on signing muster-rolls, shall be dismissed from the service, and shall thereby be disabled to hold any office or 'employment in the service of the United States. Art. 7. — Every officer commanding a regiment, an independent troop, battery, or company, or a garrison, shall, in the beginning of. every month, transmit through the proper channels, to the Department of War, an exact return of the same, specifying the names of the officers then absent from their posts, with the reasons for and the time of their absence. And any officer who, through neglect or design, omits to send such returns, .shall, on conviction thereof, be punished as a court-martial may direct. Art 8. — Every officer who knowingly makes a false return to the Department of War, or to any of his superior officers, authorized to call for such returns, of the .state of the regiment, troop or company, or garrison under his command ; or of the arms, ammunition, clothing or other stores thereunto belonging, shall, on conviction thereof before a court-martial, be cashiered. 986 MILIIAKY LAW AND fEECEDENTS, 987 AsT. 9. — ^All public stores taken from the enemy shall be secured for the service of the United States ; and for neglect thereof the commanding officer shall be answerable. Abt. 10. — Every officer commanding a troop, battery, or company, is charged with the arms, accouternients, ammunition, clothing, or other military stores belonging to his conuimud, and Is accountable to hia colonel in case of their being lost, spoiled, or damaged otherwise than by unavoidable accident, or on actual service. Akt. 11. — Every officer commanding a regiment or an independent troop, battery, 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 service. Every officer commanding a regiment, or an independent troop, battery, or company, in the field, may grant furloughs not exceeding thirty days at one time, to five per centum of the enlisted men, for good conduct in tlie line of duty, but subject to the approval of the commander of the forces of which said enlisted men form a part; Every company officer of a regiment, commanding any troop, battery, or company not in the field, or commanding in any garrison, fort, post, or barrack may, In the absence of his field-officer, grant furloughs to the enlisted men, for a time not exceeding twenty days in sis months, and not to more than two persons to be absent at the same time. Aet. 12. — At every nmster of a regiment, troop, battery, or company, the com- manding officer thereof shall give to the mustering officer certificates, signed by himself, stating how long absent officers have been absent and the reasons of their absence. And the commanding officer of every troop, battery, or company shall give like certificates, stating how long absent non-commissioned officers and private soldiers have been absent and the reasons of their absence. Such rea.sons and time of absence shall be inserted in the muster-rolls opposite the names of the respective abisent officers and soldiers, and the certificates, together with the muster-rolls, shall be transmitted by the mustering officer to the De- partment of War, as speedily as the distance of the place and muster will admit. Art. 13. — Every officer who signs a false certificate, relating to the absence or pay of an officer or soldier, shall be dismissed from the service. 1525 Abt. 14. — Any officer who knowingly makes a false muster of man or horse, or who signs, or directs, or allows the signing of any muster-roll, knowing the same to contain a false muster, shall, upon proof thereof by two witnesses, before a court-martial, be dismissed from the service, and shall thereby be disabled to hold any office or employment in the service of the United States. Akt. 15. — Any officer who, willfully or through neglect, suffers to be lost, spoiled, or damaged, any military stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service. Aet. 16. — Any enlisted man who- sells, or willfully or through neglect wastes the ammunition delivered out to him, shall be punished as a court-martial may direct. Art. 17. — Any soldier who sells or, through neglect, loses or spoils his horse, arms, clothing, or accouterments, shall suffer such stoppages, not exceeding one-half of his current pay, as a court-martial may deem sufficient for repairing the loss or damage, and shall be punished by confinement or such other corporal punishment as the court may direct. [Amended 1892. See page 1542, post.] Aet. 18. — Any officer commanding in any garrison, fort, or barracks of the United States who, for his private advantage, lays any duty or Imposition upon, or is interested in the sale of any victuals, liquors, or other necessaries of life, brought into such garrison, fort, or barracks, for the use of the soldiers, shall be dismissed from the service. A],T x9. — Any officer who uses contemptous or disrespectful .words against the President, the Vice-President, the Congress of the United States, or the chief magistrate or legislature of any of the United States in which he is quartered, shall be dismissed from the service, or otherwise punished, as a court-martial may direct. Any soldier who so offends shall be punished as a court-martial may direct. Abt. 20.— Any officer or soldier who be^iaves himself with disrespect toward his commanding officer shall be punished as a court-martial may direct: Aet. 21. — Any officer or soldier who, on any pretense whatsoever, strikes his superior officer, or draws or lifts up any weapon, or offers any violence against him, being in the execution of his office, or disobeys any lawful command of his 988 MIUTAEY LAW AND PEECEDENTS. superior officer, shall suffer death, or such other punishment as a court-martial may direct. AsT. 22. — Any officer or soldier who begins, excites, causes, or Joins in any mutiny or sedition, in any troop, battery, company, party, post, detachment, or guard, shall suffer death, or such other punishment as a court-martial may direct.' Ajst. 23. — ^Any officer or soldier who, jeing present at any mutiny or sedition, does not use his utmost endeavor to suppress the same, or having knowledge of any Intended mutiny or sedition, does not, without delay, give information thereof to his commanding officer, shall suffer death, or such other punishment as a court-martial may direct. Abt. 24. — All officers, of \yhat condition soever, have power to part and quell all quarrels, frays, and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery, or company, and to order officers into arrest, and non-commissioned officers and soldiers into confinement, 1526 who take part in the same, until their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or non-commissioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct. Abt. 25. — No officer or soldier shall use any reproachful or provoking speeches or gestures to another. Any officer who so offends shall be put In arrest. Any soldier who so offends shall be confined, and required to ask pardon of the party offended. In the presence of his commanding officer. Aet. 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 who so offends shall be dismissed from the service. Any soldier who so offends shall suffer such punishment as a court-martial may direct. Abt. 27. — Any officer or non-commissioned officer, commanding a guard, who, knowingly and willingly, suffers any person to go forth to flght a duel, shall be punished as a challenger ; and all seconds or promoters of duels, and carriers of challenges to light duels, shall be deemed principals, and punished ac- cordingly. It shall be the duty of any officer commanding an army, regiment, troop, battery, company, post, or detachment, who knows or has reason to believe that a challenge has been given or accepted by any officer or enlisted man under his command, immediately to arrest the offender and bring him to trial. Abt. 28. — Any officer or soldier who upbraids another officer or soldier 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 dis- advantage which might arise from their having refused to accept challenges, as they will only have acted In obedience to the law, and have done their duty as good soldiers who subject themselves to discipline. Abt. 29. — Any officer who thinks himself wronged by the commanding officer of his regiment, and, upon due application to such commander, Is refused redress, may complain to the general commanding in the State or Territory where such regiment is stationed. The general shall examine into said complaint and take proper measures for 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. Abt. 30. — Any soldier who thinks himself wronged by any officer may com- plain to the commanding officer of his regiment, who shall summon a regi- mental 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. Abt. 31. — ^Any officer or soldier who lies out of his quarters, garrison, or %amp, without leave from his superior officer, shall be , punished as a court- martial may direct. Abt. 32. — ^Any soldier who absents himself from his troop, battery, com- pany, or detachment, without leave from his commanding officer, shall be punished as a court-martial may direct. Abt. 33. — ^Any officer or soldier whb fails, except when prevented by sickness or other necessity, to r^tair, at the fixed time, to the place 1527 of parade, exercise, or other rendezvous appointed by his commanding officer, or goes from the same, without leave from his commanding MILITARY LAW AND PRECEDENTS. 989 officer, before he Is dismissed or relieved, shall be punished as a court-martial may direct. Aet. 34. — ^Any soldier who is found one mile from camp, without leave in writing from his commanding officer, shall be punished as a court-martial may direct. Abt. 35. — ^Any soldier who fails to retire to his quarters or tent at the beat- ing of retreat, shall be punished according to the nature of his oflEense. Aet. 36. — No soldier belonging to fixiy regiment, troop, battery, or company shall hire another to do his duty for him, or be excused from duty, except in cases of sickness, disability, or leave of absence. Every such soldier found guilty of hiring his duty, and the person so hired to do another's duty, shall be punished as a court-martial may direct. Aet. 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. Aet. 38. — Any officer who is found drunk on his guard, party, or other duty; shall be dismissed from the service. Any soldier who so offends shall suffer such punishment as a court-martial may direct. No court-martial shall sen- tence any soldier to be branded, marked or tattooed. Aet. 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. Abt. 40. — Any officer or soldier who quits his guard, platoon, or division, without leave from his superior officer, exc^t in a case of urgent necessity, shall be punished as a court-martial may direct. Aet. 41. — ^Any officer who, by any means whatsoever, occasions false alarms in camp, garrison, or quarters, shall suffer death, or such other punishment as a court-martial may direct. Aet. 42. — ^Any officer or soldier who misbehaves himself before the enemy, runs away, or shamefully abandons any fort, post, or guard, which he is com- manded to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, or quits his post or colors to plunder or pillage, shall suffer death, or such other punishment as a court-martial may direct. Aet. 43. — 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. Aet. 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 punish- ment as a court-martial may direct. Aet. 45. — Whosoever relieves the enemy with money, victuals, or ammunition, or knowingly harbors or protects an enemy, shall suffer death, or such punish- ment as a court-martial may direct. 1528 Abt. 46. — Whosoever holds correspondence with, or gives intelligence to, the enemy, either directly or indirectly, shall suffer death, or such other punishment as a court-martial may direct. Aet. 4T.— Any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall, in time of war, suffer death, or such other punishment as a court-martial may direct; and in time of peace, any punishment, excepting death, which a court-martial may direct. Abt. 48. — 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, amount to the full term of his enlistment; and such soldier shall be tried by a court-martial and punished, although the term of his enlistment may have elapsed prevlohs to his being apprehended and tried. Aet. 49. — ^Any officer who, having tendered his resignation, quits his post or proper duties, without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of the same, shall be deemed and punished as a deserter. Aet. 50. — No non-commissioned officer or soldier shall enlist himself in any other regiment, troop, or company, without a regular discharge from the regi- ment, troop, or company in which he last served, on penalty of being reputed a deserter, and suffering accordingly. And in case any officer shall knowingly 990 MILITARY LAW AND PRECEDENTS. receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to be a deserter, immediately confine him and give notice thereof to the corps in which he last served, the said officer shall, by a court-martial, be cashiered. Aet. 51. — Any officer or soldier who advises or persuades any other officer or soldier to desert the service of the United States, shall, in time of war, suffer death, or such other punishment as a court-martial may direct ; and in time of peace, any punishment, excepting death, .which a court-martial may direct. Akt. 52. — It is earnestly recommended to all officers and soldiers diligently to attend divine service. Any officer who behaves indecently or irreverently at any place of divine worship shall be brought before a general court-martial, there to be publicly and severely reprimanded by the president thereof. Any soldier who so offends shall, for his first offense, forfeit one-sixth of a dollar; for each further offense he shall forfeit a like sum, and shall be confined twenty-four hours. The money so forfeited shall be deducted from his next pay, and shall be applied, by the captain or senior officer of his troop, battery, or company, to the use of the sick soldiers of the same. Akt. .53. — Any 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 frofeited for such offenses shall be applied as therein provided. Akt. 54. — Every officer commanding in quarters, garrison, or on the marth, shall keep good order, and to the utmost of his power, redress all abuses or disorders which rtiay be committed by any officer or soldier under his command ; and if upon complaint made to him of officers or soldiers beating or otherwise ill-treating any person, disturbing fairs or markets, or committing any kind of riot, to the disquieting of the citizens of the United States, he refuses 1529 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. Art. 55. — All officers and soldiers are to behave themselves orderly in quarters and on the march; and whoever commits any waste or spoil, either in walks or trees, parks, warrens, flsh-ponds, houses, gardens, grain-fields, inclosures, or meadows, or maliciously, destroys any property whatsbeyer belonging to inhabitants of the United States, (unless by order of a general officer com- manding 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. Aet. 56. — Any officer or soldier who does violence to any person bringing pro- visions or other nece.ssaries 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. Abt. 57. Whosoever, belonging to the armies of the United States In foreign parts, or at any place within the United States or their Territories during rebel- lion against the supreme authority of the United States, forces a safeguard, shall suffer death. Abt. .58. — In time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, mayhfem, manslaughter, murder, assault, and battery with an intent to kill. Wounding, by shooting or stabbing, with an intent to commit 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, and the punishment in any such case shall not be less than the punishment provided, for the like offense, by the laws of the State-, Territory, or district in which such offense may have been committed. Abt. 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 laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment, to which the person so accused belongs, are required, except in time of war, upon application duly made by or in behalf of the party injured, to use their utmost endeavors to deliver him over to the civil 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 refu-ses or wilfully 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. MILITABY LAW AND PBECEDEKTS. 991 Abt; 60. — ^Any person In the military service of the United States who makes OT causes to be made any claim against the United States, or any officer thereof, knowing such claim to be false or fraudulent ; or Who presents or causes to be presented to any person in the civil or military service thereof, for approval or payment, any claim against the United States or any officer thereof, knowing such claim to be false or fraudulent ; or Who enters into any agreement or conspiracy to defraud the United States by obtaining or aiding others to obtain the allowance or payment of any false or fraudulent claim ; or 1530 Who, for the purpose of obtaining, or aiding others to obtain, the ap- proval, allowance, or payment of any claim against the United States or 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 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 f or Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, forges or counterfeits, or procures or advises the forging or counter- feiting of, any signature upon any writing or other paper, or uses, or procures or advises the use of, any such signature, knowing the same to be forged or counterfeited ; or Who, having charge, possession, custody or control of any money or other property of the United States, furnished or intended for the military service thereof, knowingly delivers, or causes to be delivered, to any person having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt ; or Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States, furnished or 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 contained, and with intent to defraud the United States; or Who steals, embezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, or other property of the United States, furnished or intended for the military service thereof; or Who knowingly purchases, or recoives In pledge for any obligation or In- debtedness, from, any soldier, officer, or other person who is a part of or em- ployed in said forces or service, any ordnance, arms, equipments, ammunition, clothing, subsistence stores, or other property of the United States, such sol- dier, ffliicer, or other person not having lawful right to sell or pledge the same. Shall on conviction thereof, be punished by fine or imprisonment, or by such Other punishment as a court-martial may adjudge. And if any person, being guiltv of ariV of the ofeenses aforesaid, while in the military service of the United States, receives his discharge, or is dismissed from the service he shall continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not Tirerin/Scerwris'c^vS^^ unbecoming an officer and and soldiers niav be guilty of, to the pre.iudice of good order and military dMne ttoush not mentioned in the foregoing articles of wa^ are to be taken cognizance of by a general, or a regimental garrison, or field-officers' court- Mai? acS nature^ and degree of the ofi:ense, and punished at 1531 ^^'Iw^'l^-^All'reTamersTotbe camp, and all persons serving with the -irmies of the United States in the field, though not enlisted soldiers, are to be subTict to orders according to the i-ules and discipline of war. A^T^t^The officers and soldiers of any troops, whether militm or o hers. mustered and in pay of the United States, shall ^t a^^^ ™«?,^-°^.^S by ?ourS be governed by the articles of war, and sliall be subject to be tried by courts- jnartiaL 992 MILITARY LAW AND PKECEDEITrS. Abt. 65.— Officers charged with crime shall be arrested and confined in Qielr barracks, quarters, or tents, and deprived of their swords by the commanding officer. And any officer who leaves his confinement before he is set at liberty by his commanding officer shall be dismissed from the service. ^j, 66.— Soldiers charged With crimes shall be confined until tried by court- martial, or released by proper authority. , . „ *,„„*.„ Abt. 67.— No provost-marshal, or officer commanding a guard, shall refuse to receive or keep anv prisoner committed to his charge by an officer belonging to the forces of the United States ; provided the officer commitOng shall* at the same time, deliver an account in writing, sighed by himself, of the crime chargea against the prisoner. j i, n ^(.i,i„ Abt. 68.— Every officer to whose charge a prisoner is committed shall, witnin twenty-four hours after such commitment,- or as soon as he is relieved from ms guard, report In writing, to the commanding officer, the name of such prisoner, the crime charged against him, and the name of the officer committing him; ana if he Aiils to make such report, he shall be punished as a court-martial may direct. ' iiL , i. 1 Abt. 69.— Any officer who presumes, Without proper authority, to release any prisoner committed to hlB~cliarge, or suffers any prisoner so committed to escape, shall be punished as a court-martial may direct. Art. 70.— No officer or soldier put Ih arrest shall be continued in confinement wore than eight davs, or until such time as^a court-martial can be assembled. A»T. 71. — When an officer Is put in arrest for the purpose of trial, except at i-emote military posts or stations, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be tried Is served upon him within eight days after his arrest, and that he Is brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and then he shallije brought to trial within thirty days after the expiration of said ten days. If a copy of the charges be not served, or the arrested officer be not brought to trial, as herein required, the arrest shall cease. But officers released from arrest, under the provisions of this article, may be tried, whenever the exigencies of the service shall permit, within twelve months after such release from arrest. Art. 72. — Any general officer commanding an army, a Territorial Division or a Department} or colonel commanding a separate Department, may appoint gen- eral courts-martial whenever necessary. But when any such commander Is the accuser or prosecutor of any officer under his command the court shall be appointed by the President; and Its proceedings arid sentence shall be sent directly to the Secretary of War, by whom they shall be laid before the Presi- dent, for his approval or orders In the case. 1532 Aet. 73. — In time of war the commander of a division, or of a sepai- rate brigade of troops, shall be competent to appoint a general court- martial. But when such commander is the accuser or prosecutor of any per- son under his command, the court shall be appointed by the next higher coiri- tnander. Abt. 74. — Officers who may appoint a court-martial shall be competent to appoint a judge-advoeate for the same. Art. 75. — General courts-martial may consist of any number of officers from live to thirteen. Inclusive ; but they shall not consist of less than thirteen when that number can be convened without manifest injury to the service. Abt. 76. — When the requisite number of officers to form a general court- martial Is not present in any post or detachment, the commanding officer shall, in cases which require the cognizance of such a court, report to the com- manding officer of the department, 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 as^ ^^embled. Abt. 77. — 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 pro- vided In Article 78. Abt. 78. — Officers of the Marine Corps, detached for service with the Army by order of the President, may be associated with officers of the Regular Army on courts-martial for the trial of offenders belonging to the Regular Army, or to forces of the Marine Corps so detached ; and In such cases the orders of the senior officer of either corps, who may be present and duly au- thorized, shall be obeyed. MILITAKY LAW AND PRECEDENTS. 993 Abt- 79, — Officers shall be tried only by general courts-martial; and no officer shall, when it can be avoided, be tried by officers Inferior to hlni In rank. Abt. 80. — In time of war a field-officer may be detailed in every regiment, to try soldiers thereof for offenses not capital; and no soldier serving with his regiment, shall be tried by a regimental or garrison court-martial when a field-officer of his regiment may be so detailed. Akt. - 81.— Every officer commanding a regiment or corps shall, subject to the provisions of article eighty, be competent to appoint, for his own regi- ment or corps, courts-martial, consisting of three officers, to try offenses not capital. Abt. 82,— Every officer commanding a garrison, fort, or other place, where the troops .consist of different corps, shall, subject to the provisions of article eighty, be competent to appoint, for such garrison or other place, courts- martial, consisting of three officers, to try offenses not capital. Abt. 83. — Regimental and garrison courts-martial, and field-officers detailed to try offenders, shall not have power to try capital cases or commissioned officers, or to infiict a fine exceeding one month's pay, or to imprison or put to hard labor any non-commissioned officer or soldier for a longer time than one month. Abt. 84. — The judge-advocate shall 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 regimental and garrison courts-martial : " You, 1533 A B, do swear that you will well and truly try and determine, accord- ing to evidence, the matter now before you, between the United States of America and the prispner to be tried, and that you will duly administer Justicie, without partiality, favor, or affection, according to the provisions, of the rules and articles for the government of the armies of the United States, and if any doubt should arise, not explained by said articles, then according to your conscience, the best of your understanding, and the custom of war in like.cases ; and you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authority ; neither will you disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, tw a court of justice. In a due course of law. So help you God." [Amended, 1892, See page 1000, post.] Abt. 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 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." Abt. 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 by any riot or disorder. Abt. 87. — All members of a court-martial are to behave with decency and calmness. Abt. 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. Abt. 89. — When a prisoner, arraigned before a general court-martial, from ©■bstinacy and deliberate design, stands mute, or answers foreign to the pur- pose, the court may proceed to trial and judgment, as if the prisoner had pleaded not guilty. Abt. 90. — ^The judge advocate, or some person deputed by him, or by the .general or officer commanding the army, detachment, or garrison, shall prose- cute 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 pris- oner, the answer to Which might tend to criminate himself. Abt. 91. — ^The depositions of witnesses, residing beyond the limits of the State, Territory, or district in which any military court may be ordered to sit. If taken on reasonable notice to the opposite party and duly authenticated, may be read In evidence before such court in cases not capItaL 440S93 0-42-63 994 MILITARY LAW AND PRECEDENTS. Abt. 9Z. — All persons who give evidence before a court-martial shall be examined on oath, or affirmation, in the following form : " You swear (or affirm) that the evidence you shall, give, in the case now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God." Abt. 93. — ^A court-martial shall, for reasonable cause, grant a, con- 1534 tlnuance 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 shall not be delayed for a period longer than sixty days. Abt. 94. — Proceedings of trials shall be carried on only between the hours of eight in the morning and three In the afternoftn, excepting in cases which, in the opinion of the officer appointing the court, require immediate example. Aet. 95. — Members of a court-martial, in giving their votes, shall begin with the youngest in commission. Art. 96. — ^No person shall be sentenced to suffer death, except by the concur- rence of two-thirds of the members of a general court-martial, and in the cases herein expressly mentioned. Abt. 97. — 'No person in the military service shall, under the sentence of a court-martial, be punished by confinement In a penitentiary, unless the ofCense 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, Terri- tory, or District, subject such convict to such punishment. Art. 98.— No- person in the military service shall be punished by flogging, or by branding, marking, or tattooing on the body. Abt. 99. — ^No officer shall be discharged or dismissed from the service, except by order of the President, or by sentence of a general court-martial ; and in time of peace no officer shall be dismissed, except in pursuance of the sentence of a court-martial, or In mitigation thereof. Art. 100. — ^When an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name, and place of abode of the delinquent shall be published In the newspapers In and about the camp, and In the State from which the offender came, or where he usually resides ; and after such publication it shall be scandalous for an officer to associate with him. Art. 101. — When a court-martial suspends an officer from command. It may also suspend his pay and emoluments for the same time, according to the nature of his offense. Abt. 102. — No person shall be tried a second time for the same offense. Art. 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 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. [Amended, 1890. See pp. 998, post.'] Art. 104. — No sentence of a court-martial shall be ci^rried into execution until the whole proceeding shall have been approved by the officer ordering the court, or by the officer commanding for the time being. [Amended, 1892. See page 1000, post.] Art. 105— No sentence of a court-martial inflicting the punishment of death shall be carried into execution until it shall have been confirmed by the Presi- dent; except in the cases of persons convicted. In time of war, as spies, muti- neers, deserters, or murderers, and in the case of guerilla marauders, convicted, in time of war, of robbery, burglary, arson, rape, assault with intent to commit rape, or of violation of the laws and customs of war; and in such ex-^ 1535 cepted cases the sentence of death may be carried into execution upon confirmation by the commanding general in the field, or the commander of the department, as the case may be. Abt. 106. — In time of peace no sentence of a court-martial, directing the dis- missal of an officer, shall be carried Into execution, until it shall have been con- firmed by the President. Art. 107. — No sentence of a court-martial appointed by the commander of a division or of a separate brigade of troops, directing the dismissal of an officer, shall be carried into execution until it shall have been confirmed by the gAieral commanding the army in the field to which the division or brigade belongs. MILITARY LAW AND PRECEDENTS. 995 Abt. 108. — No sentence of a court-martial, either In time of peace or In time of war, respecting a general officer, shall be carried Into execution, until It shall have been confirmed by the President. Art. 109. — ^AU sentences of a court-martial may be confirmed and carried into execution by the officer ordering the court, or by the officer commanding for the time being, where confirmation by the President, or by the comma:ndlng gen^ eral in the field, or commander of the department, Is not required by these articles. Akt. 110.— No sentence of a field-er8ons charged with the commission of crimes, offences, and misdemeanors, in the United States courts. Territorial courts, and courts-martial and courts of inquiry, in any State or Territory, including the District of Columbia, the per- son so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presump- tion against him. Limitation in oases of desertion — Amendment of Art. 103. — Act of Apbil 11, 1890, c. 78. Be it enacted, dc. That the one hundred and third article of the Rules and Articles of War be, and the same is hereby, amended by adding thereto the following words: 1540 " No i)erson shall be tried or punished by a court-martial for deser- tion in time of peace and not in the face of an enemy, committed more than two years before the arraignment of such person for such offence, unless he shall 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 : Provided, That said limitation shall not begin until the end of the term for which said person was mustered into tlie service." UaanmMm Punishments. — ^Act of Sept. 27, 1890, c. 998. Whenever by any of the Articles of War for the government of the Army the punishment on convic- tion of any military offence 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 code of maximum punishments prescribed by the President under this Act is published in G. 0. 16 of 1895, set forth post.l XV. 1541 THE ACT OF OCTOBER 1, 1S90, ESTABLISHING THE SUMMARY COURT. • An Act to promote the administration of justice in the Army. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter in time of peace all enlisted men charged with offenses now cognizable by a garrison or regimental court-martial shall, within twenty-four hours from the time of their arrest, be brought before a summary court, which shall consist of the line officer ' sec- ond in rank at the post or station or of the command of the alleged offender, and at stations where only officers of the staff are on duty the officers second in rank shall constitute such court, who shall have power to administer oaths and to hear and determine the case, and when satisfied of the guilt of the accused party adjudge the punishment to be Inflicted. There shall be a sum- mary court record-book or docket kept at each military post, and in the field at the headquarters of the command, in which shall be entered a record of all cases heard and determined and the action had thereon, and no sentence adjudged by said summary court shall be executed until it shall have been ap- proved by the post or other commander: Provided, That when but one com- missioned officer is present with a command he shall hear and finally de- termine such cases as require summary action : Provided further, That the President be, and he hereby is, authorized to prescribe specific penalties for such minor offenses as are now brought before garrison and regimental courts- martial: Provided, further, That any enlisted man charged with an offense and brought before such summary court may, if he so desires, object to a hear- ing and determination of his case by such court and request a trial by court- martial, which request shall be granted as of right, and when the court is the accuser the case shall be heard and determined by the post commander, or by regimental or garrison court-martial: And provided further. That post and other commanders shall, on the last day of each month, make a report to the department headquarters of the number of cases determined by summary court during the month, setting forth the offenses committed and the penalties awarded, which reports shall be filed in the office of the judge-advocate of the department. Sec. 2. That it shall be lawful for any civil officer having authority under the laws of the United States or of any State, Territory, or District, to arrest offenders, to summarily arrest a deserter from the military service of the United States and deliver him into the custody of the military authority of the General Government. 1 £tc In the roll. XVI. 1542 THE ACT OF JULY 27, 1892, AMENDINO CERTAIN ABTICLES OP WAK, AND CHANGING THE PROCEDURE OF COURTS-MARTIAL, &C. An Act to amend tlie Articles of War, and for other purposes. Be it enacted iy the Senate and House of Representatives of the United States of America in Congress assembled, That articles seventeen, eighty-four, one hundred and four, and one hundred and ten, -of section thirteen hundred and forty-two of the Revised Statutes of the United States, be, and the same are hereby, amended to read as follows : " AsTicLE 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 limitutton as may be prescribed by the President by virtue of the power vested in him." " Abticle 84. The judgfe-advocate shall 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 regimental and garrison courts-martial : ' You, A B, do swear that you will well and truly try and determine, according to evidence, the matter now before you, between the United States of America and the prisoner to be tried, and that you will duly administer justice, without par- tiality, favor, or affection, according to the provisions of the rules and articles for the government of the armies of the United States, and If any doubt should arise, not explained by said articles, then 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 pub- lished 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 justl(?e. In a due course of law. So help you God.' " " Abticle 104. No sentence of a court-martial shall be carried into execution until the same shall have been approved by the officer ordering the court, or by the officer commanding for thp time being." " Article 110. No sentence adjudged by a field officer, detailed to try soldiers of his regiment, shall be "carried into execution until the same shall have been approved by the brigade commander, or, in case there be no brigade commander, by the commanding officer of the post or camp." Sec. 2. That whenever a court-martial shall sit in closed session the judge- advocate shall withdraw, and when his legal advice or his assistance In refer- ring to recorded evidence Is required, it shall be obtained in open court. 3543 Sec. 3. That fraudulent enlistment, and the receipt of any pay or allow- ance thereunder, is hereby declared a military offense and made punish- able by court-martial, under the Sixty-second Article of War. Sec. 4. That judge-advocates of departments and of courts-martial, and the trial officers of summary courts, are hereby authorized to administer oaths for the purpose of the administration of military justice, and for other purposes of military administration. Sec. 5. That the commanding officers authorized to approve the sentences of summary courts shall have the power to remit or mitigate the same. Sec. 6. That this act shall take effect sixty days after its passage. 1000 XVII. 1544 EXECUTIVE. ORDEK, PRESCRIBING LIMITS OF PUNISHMENT BY SENTENCE OF COURT-MARTIAL, IN CASES OF ENLISTED MEN, UNDER THE AUTHORITY OP THE ACT OP SEPTEMBER 27, 1890. General Ordebs, ] HEADqT7ABTEBS of the Abmt, \ Adjutant General's OmcE, No. 16. J Washington, March 25, 1895. By direction of the Secretary of War, the following Executive order will take effect twenty days, from the date hereof, and is published for the information and guidance of all concerned : Executive Mansion, March 20, 1895. The E:5;ecutlve order dated February 26, 1891, establishing limits of punish- ment for enlisted men of the Army, under an act of Congress approved Septem- ber 27, 1890, and which was published in General Orders, No. 21, 1891, Head- quarters of the Army, is amended so as to prescribe as foUows : 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. (6) When the surrender is made after an absence of more than thirty days, eighteen months. Sec- 2. In case of apprehension — (o) When at the time of desertion the deserter shall not have been more than six months in the service, eighteen months. (6) When he shall have been more than six months in the service, two and one-half years. Sec. 3. The foregoing limitations are subject to modification under the fol- lowing conditions: (o) The punishment oi a deserter may be increased by one year of confine- ment at hard labor in consideration of each previous conviction of desertion. (6) The punishment of desertion when joined in by two or more 1545 soldiers in the execution of a conspiracy, or for desertion in the presence of an outbreak 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 : Offences. Limits of punishment. Under 17th Aetkxe of Wae, Dishonorable discharge, forfeiture of alt pay and allow- ances, uod confinement at hard labor for tlires years. Four montlis' confinement at liard labor and forfeiture of tlO per month for the same period; (or non-com- missioned officer, reduction in addition thereto. 1001 1002 MIOTAET LAW AND PRECEDENTS. Offences. Limits of punishment. Undie 17th Article aw Wab— Continued. Selling clothing Losing or spoiling horse or arms through neglect . . Losing or spoiling accoutrements or clothing through neglect. Ukdee 20th Abticle of Wab. Behaving himself with disrespect to his com- manding officer. Under 24th Abticle or Wab. Befusing to obey or using violence to officer or non-commissioned officer while quelling quar- rels or disorders. Under 313t Article of War. Lying out of quarters Under 32d Article of Wab. Absence without leave — ^ Less than one hour From one to six hours' From six to twelve hours From twelve to twenty-four hours From twenty-tour to forty-eight hours From two to ten days From ten to thirty days From thirty to ninety days For ninety or more than ninety days. Undek 33d Article of Wab. Failure to repair at the lime fixed, ^c., to the place cf parade— For reveille or retreat roll-call and 11 p. m. inspection. For guard detail For fatigue detail For dress parade For the weekly inspection For target practice For drill For guard mounting (by musicbm) For stable duty Undeb 38th Abticle of Wab. J}runkenness — Two months' confinement at hard labor and forfeiture of tlO per month for the same period; for non-com- missioned officer, reduction in addition thereto. Four months' confinement at hard labor and forfeiture of SIO per month for the same period; for non-com- missioned officer, reduction in addition tliereto. One month's confinement at hard labor and forfeitun of SIO; for non-commissioned officer, redaction in addition thereto. 8ix months' confinement at hard labor and forfeiture of JIO per month for the same period; for non-com- missioned officer, reduction in addition thereto. Dishonorable discharge, with forfeiture of all pay and allowances and confinement at hard labor for two years. Forfeiture of t2; corporal, (3; sergeant, H. Forfeiture of SI; corporal, S2; sergeant, S3; 1st sergeant or non-commissioned officer of higher grade, S4. Forfeiture of S2; corporal, S3; sergeant, S4; 1st sergeant or non-commissioned officer of higher grade, SS. Forfeiture of S3; corporal, S4; sergeant, S6; lit sergeant or'non-commiseioned officer of higher grade, S7. Forfeiture of S5; corporal, S6; sergeant, S7; 1st sergeant or non-commissioned officer of higher grade, SIO. Forfeiture of SB and five days' confinement at hard labor. For corporal, forfeiture of S8; sergeant, SIO; Ist sergeant or non-commissioned officer of higher grade, S12, or, for all non-commissioned officers, reduction. Forfeiture of SIO and ton days' confinement at hard labor; for non-commissioned officer, reduction in addition thereto. Forfeiture of S20 and one month's confinement at hard labor; for non-commissioned officer, reduction in addition thereto. Three months' confinement at hard labor and forfeiture of SIO per month for same period; for non-commis- sioned officer, reduction in addition thereto. Dishonorable discharge and forfeiture of all pay and allowances and six months' confinement at hard labor. Forfeiture of SI; corporal, S2; sergeant, S3; Ist sergeant, Forfeiture of S5; corporal, S8; sergeant, SIO. Forfeiture of S2; corporal, S3; sergeant, S& On guard. . Six months' confinement at hard labor and forfeiture of SIO per month for the same period; for non-com- missioned officer, reduction in addition (hereto. Forfeiture of S20. > Upon trial for desertion and conviction of absence without leave only, the court may, in addition to the Umit prescribed for such absence, award a stoppage of the amount paid for apprehension. > Inchiding first and excluding last. On duty as company cook. , MHJTABY LAW AND PEECEDBNTS. 1003 Offences. Limits of punishment. Under 38th Article or War— Ckmtinued. JhmtbnncH— Oontinned. On extra or special dnty At drill , At target pradiiae At parade At uispectkn At inspeetiaK of company guard detail. . At stable duty Under 40th Article or War. Quitting guard . Under 51st Article or War. Persuading soldiers to desert Under 60th Article or War. Under 62d Article or War. Manslaughter Assault, with intent to kill . Burglary Forgery Perjury False swearing. . Robbery Larceny or embezzlement of property— Of the value of more than WOO Of the value of $100 or less and more than tSO. Of the value of toO or less and more than $20 Of the value of $20 or less Fraudulent enlistment, procured by &lse repre- sentation or concealment of a &ct in regard to a prior enlistment or discharge, or in regard to conviction of a civil or nulitary crime. Fraudulent enlistment, other cases of. , Disobedience of orders, involving wilful defiance of the authority of a non-commissioned officer in the execution of his office. Using threatening or insulting language or behav- ing in an insubordinate manner to a non-com- musioned officer while in the execution of his office. Absence froih &tigue duty Absence from extra or special duty Absencefrom duty as company or hospital cook. Introducing lic[uor into post or camp in viola- tion of standmg orders. Drunkenness at post or in quarters F«rfeittire of $12. For non-commlsstoned reduction and forfeiture of $20. OfflCCfTi Drunkenness and disorderly conduct, causing the offender's arrest and conviction by civil authorities at a place within ten miles of his station. Noisy or disorderly conduct in quarters , Abuse by non-commissioned officer of his author- ity over an inferior. Non-commissioned officer encouraging gambling. Non-commissioned officer making falsa report — Sentinel allowing a prisoner under his charge to escape through neglect. Sentinel wilfully suflering prisoner under his charge to escape. ' la speoiScations to charges of larceny or embazzlement the value of the property shall be stated. Six months' confinement at hard labor and forfeiture of $10 per month for the same period; for non-com- missioned officer, reduction in addition thereta Dishonorable discharge, forfeiture of all pay and allow- ances, and one year's confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allow- ances, and four years '^confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allow- ances, and ten years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allow- ances, and ten years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allow- ances, and five years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allow- ances, and four years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allow- ances, and lour years' confinement at hard labor. Dishonorable discharge, forfeiture of all pay and allow- ances, and two years' cect or affixmt to a sentinel Resisting or disobeying sentinel in lawful execu- tion of his duty. Lewd or indecent exposure of person Two months' confinement at bard labor and fbrfeitiire of $10 per month for the same period. Two months' confinement at hard labor and forfriture of SIO per mcmtb for the same period. Two months' confinement at hard labor and forfeiture of SIO per month for the same pedad; for non-com- missioned officer, reduction In aoditian thereto. Six months' confinement at hard labor and forfeiture of UO per month for the same period; for non-com- missioned officer, reductl(Hi in addition thereto. Three months' confinement at hard labor and forfeiture of tlO per month for the same period; for non-canunis- sionea officer, reduction in aadition thereto. Abticle III. Section 1. When a soldier shall be convicted of an offence the punishment for which, as authorized by Article II of this order or the custom of the serv- ice, does not exceed that which an inferior court-martial may award, the pun- ishment so authorized may be Increased by one-half for every previous convic- tion of one or more offences within eighteen months preceding the trial and during the current enlistment; provided that the Increase of punishment for five or more previous convictions shall not exceed that thus authorized when there are four previous convictions, and that when one or more of such five or more previous convictions shall have been by general court-martial, or when such convictions shall have occurred within one year preceding the trial, the limit of punishment shall be dishonorable discharge, forfeiture of aU pay and allowances, and confinement at hard labor for three months. When the conviction is of an -offence punishable under Article II of this order or the custom of the service with a greater punishment than an Inferior court-martial can award, but not punishable with dishonorable discharge, the sentence may, on proof of five or more previous convictions within eighteen months and during the current enlistment, impose dishonorable discharge and forfeiture of all pay and allowances In addition to the authorized confinement, and when this confinement is less than three months it may be increased to three months. When a non-commissioned ofiicer is convicted of an offence not punishable with reduction, he may, if he shall have been convicted of a military offence within a year and during the current enlistment, be sentenced to reduction. Id addition to the punishment already authorized. . Sec. 2. In every case when an offence on trial before a court-martial is of a character admitting of the introduction of evidence of previous convictions, and the accused is convicted, the court, after determining its findings, will be opened for the purpose of ascertaining whether there is such evidence, and, If so, of hearing it. These convictions must be proved by the records of 1550 previous trials, or by duly authenticated orders promulgating the same, except in the cases of conviction by summary court, when a duly authen- ticated copy of the record of said court shall be deemed sufficient proof. Charges forwarded to the authority ordering a general court-martial, or snb^ mitted to a summary, garrison, or regimental court, must be accompanied by the proper evidence of such previous convictions as may have to be considered in determining upon a sentence. Abticle IV. When a soldier shall, on one arraignment, be convicted of two or more offences, none of which is punishable under Article II of this order or the cus- tom of the service with dishonorable discharge, but the aggregate term of confinement for which may exceed six months, dishonorable discharge with forfeiture of pay and allowances may be awarded in addition to the authorized confinement Article V. This order prescribes the maximum limit of punishment for the offences 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 MHJTABY LAW AND PRECEDENTS. 1005 to the extenuating circiimstances. Offiences not herein provided for remain punishable as authorized by the Articles of War and the custom of the service. Abticlg VI. Summary courts are subject to the restrictions named in the 83d Article of War. Soldiers against whom charges may be preferred for trial by summary court shall not be confined in the guardhouse, but shall be placed in arrest In quarters, before and during trial and while awaiting sentence, except when in particular cases restraint may be necessary. Abticu: VII. The following substitutions for punishments named, in Article II of this order are authorized at the discretion of the court : Two days' confinement at hard labor for one dollar forfeiture ; one day's soli- tary confinement on bread and water diet for two days' confinement at hard labor or for one dollar forfeiture ; provided that a non-commissioned officer 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. Whenever the limit herein prescribed for an offence ^or offences may be Ijrought within the punishing power of inferior courts-martial, as defined by the 83d Article of War, by substitution of punishment under the provisions of this article, the said courts have jurisdiction of such offence or ofCences. Abticle VIII. £fon-commissioned officers atM>ve the rank of corporal shall not, if they 1551 object thereto, be brought to trial before regimental, garrison, or sum- mary courts-martial, without the authority of the officer competent to order their trial by general court-martial ; nor shall sergeants of the post non- commissioned staff or hospital stewards be reduced, but they may be dis- honorably discharged whenever reduction is Included in the limit of punishment. Gkovbb Clevklawd. By command of Lieutenant-General Schofigld: Geo. D. Rtjoolks, Adjutant General. XVIII. 1552 AN ACT of the Congress of th.e " Confederate States of America," enti- tled, "An Act to organize Military Courts to attend the Army of the Con- federate States In the Field and to define the Powers of said Courts." Tftc Congress of the Confederate States of America do enact, That courts shall be organized, to be Jinown as military courts,' one to attend each army corps in the field, under the direction of the President. Each court shall con- sist of three members, two of whom shall constitute a quorum, and each mem- ber shall be entitled to the rank and pay of a colonel of cavalry, shall be ap- pointed by the President, by and with the advice and consent of the Senate, and shall hold his office during the war, unless the court shall be sooner abol- ished by Congress. For each court there shall be one judge advocate, to be aK>olnted by the President, by and with the advice and consent of the Senate, with the rank and pay of a captain of cavalry, whose duties shall be as pre- scribed by the Rules and Articles of war, except as enlarged or modified by the purposes and provisions of this act, and who shall also hold his office dur- ing the war, unless the court shall be sooner abolished by the Congress ; and in case of the absence or disability of the judge advocate, upon the application of the court, the commander of the army coips to which such court is attached may appoint or detail an officer to perform the duties of judge advocate dur- ing such absence or disability, or until the vacancy, if any, shall be filled by the President. Sec. 2. Eadi court shall have the right to appoint a provost marshal to at- tend its sittings and execute the orders of the gourt, with the rank and pay of a captain of cavalry ; and also a clerk, who shall have a salary of one hundred and twenty-five dollars per menslon of the writ of habeas corpus, and informed Congress of conditions of public danger which render the suspension of the writ a measure proper for the public defence against Invasion and insurrection :' Now, therefore. The Congress of the Confederate States of America do etiaet, Tha,t during the present invasion of the Confederate States, the privilege of the writ of habeas corpus be and the same Is hereby suspended ; but such suspension shall apply only to the cases of persons arrested or detained by order of the President, Secretary of War, or the general officer commanding the Trans-Misslssiw)l Mili- tary Department, by the authority and under the control of the President. It Is hereby declared that the purpose of Congress in the passage of this act is to provide more effectually for the public safety, by suspending the writ of habeas corpus in the following cases, and no others : First — Of treason, or treasonable efforts or combinations to subvert the government of the Confederate States. Second — Of conspiracies to overthrow the government, or conspiracies to resist the lawful authorities of the Confederate States. Third — Of combining to assist the enemy, or of communicating Intelligence to the enemy, or giving him aid and comfort. Fourth — Of conspiracies, preparations and attempts to incite servile insur- rection. Fifth — Of desertions or encouraging desertions, of harboring deserters and of attempts to avoid military service ; provided, that in cases of palpable wrong and oppression by any subordinate officer, upon any party who does not legally owe military service, his superior officer shall grant prompt relief to the oppressed party, and the subordinate shall be dismissed from office. 1556 Sixth — Of spies and other emissaries of the enemy. Seventh — Of holding correspondence or intercourse With the enemy, without necessity, and without the permission of the Confederate States. Eighth — Of unlawful trading with the enemy, and other offences against the laws of the Confederate States, enacted to J)romote their success in the war. Ninth — Of conspiracies, or attempts to liberate prisoners of war held by the Confederate States. Tenth — Of conspiracies, or attempts or preparations to aid the enemy. Eleventh — Of persons advising or inciting others to abandon the Confederate cause, or to resist the Confederate States, or to adhere to the enemy. Twelfth — Of unlawfully burning, destroying or injuring, or attempting to bum, destroy or injure any bridge or railroad or telegraphic line of communi- cation, or other property, with the intent of aiding the enemy. Thirteenth — Of treasonable designs to Impair the military power of the government, by destroying, or attempting to destroy the vessels or arms, or munitions of war, or arsenals, foundries, workshops or other property of the Confederate States. I Published, with directions as to Its execution. In G. O. 31, A. & I. O. Oi, Richmond, 1864. 1008 mhjtaby la^ and precedents. 1009 Sko. 2. The President shall cause proper officers to investigate the cases of all persons so arrested or detained, in order that they may be discharged, if improperly detained, unless they can be speedily tried in the due course of law. Sec. 3. That during the suspension aforesaid no military or other officer shall be compelled, in answer to any writ of habeas corpus, to appear in person or to return the body of any person or persons detained by him by the authority of the President, Secretary of War, or the general officer commanding the Trans-Mississippi department ; but upon the certificate under oath of . the officer having charge of any one so detained, that such person is detained by him as a prisoner for any of the causes hereinbefore specified, under the au- thority aforesaid, further proceedings under the writ of habeas corpus shall immediately cease, and remain suspended so long as this act shall continue in force. Sec. 4. This Act shall continue in force for ninety days after the next meet- ing of Congress, and no longer. Approved February 15, 1864. 440593 O - 42 - 64 XX. 1557 FORMS OF CHARGES. Undee Aktici-b 3. Chaege. Unauthorized enlistment, in violation of the Third Article of War. Specification. In that A. B., Captain, &c., did enlist into the military service, without the written consent thereto of his parents, one 0. D., known to him to be a minor under the age of twenty-one years ; Or — did enlist Into the military service one C. D., known to him to be a minor under the age of sixteen years; Or — knovyn to him to be an Insane person ; Or— known to him to be at the time intoxicated ; Or — known to him to be a deserter from the said service ; Or — ^known to him to have been convicted of an infamous criminal offence, to wit the offence of , . This at (or at or near) , or or about Under Akttcle 5. Charge. False muster, in violation of the Fifth Article of War. Specification. In that A. B., Captain, &c., at an official muster of, (describe the command,) did unlawfully include and muster as a soldier of said com- mand one C. D., known to him to be not a soldier but a civilian. This at , on or about . Under Article 6. Charge. Violation of the Sixth Article of War. Specification- In that A. B., Colonel, &c., being mustering officer for the regiment, did, on mustering the same, and in consideration of appending favorable remarks as to the condition of the same, (or other con- sideration,) accept and take by way of gratification, from the sum of dollars. Or — In that A. B., Captain, &c., on signing the muster rolls of his company, and, in consideration of his certifying to. the same as correct and true, did accept and take by way of gratification from the sum of dollars. This at , on or about . Under Article 7. Charge. Omlttjng to make a monthly return, in violation of the Seventh Article of War. 1558 Specification. In that A. B., Colonel, &c., commanding the regiment , did, designedly, (or through neglect,) omit to trans- mit through the proper channels to the War Bepartment at the beginning of the mouth of , an exact official return of his said regiment, specifying the names of the officers then absent from said regiment and from their posts, with the reasons for and the time of their absences, as required by the said Seventh Article of War. This at , on or about . Under Article 8. Charge. Making a false return, violation of the Eighth Article of War. Specification. In that A. B., Captain, &c., commanding {specify the com- mand,) did make to a superior officer authorized to call for such returns, 1010 MIUTABY LAW AND PBECEDBNTS. 1011 to wit, to _ , an official return of tlie arms belonging to his said command, in which he, the said A. B., &c., did state {give statement as to nwuber, kmd, or condition of arms, <$c.;)— which said statement was false, and known to him, the said A. B., &c., to be false. This at , on or about _. TJndek Abticle 13. Charge. Signing a false certificate, in violation of the Thirteenth Article of War. Specification. In that A. B., Captain, &c., did sign a certificate appended to the muster-and-pay roll of his company for the months of and , to the effect that the said roll exhibited a true statement of his said company; whereas it appeared from said roll that Privates and were present for duty with said company when in fact they were absent from the same; the said certificate being thus in part false. This at __. , on or about Undeb Article 14. Charge. False muster, in violation of the Fourteenth Article of War. Specification. In that A. B., Captain, etc., did sign an official muster roll of his said company for the month of , which contained and in- cluded the names of C. D., E. P., and G. H., privates and members of said company, as being present for duty with the same, whereas, In fact, the said C. D., B. F., and .6. H. were, with the knowledge and connivance of him the said A. B., wholly absent from said company and from military duty. This at , on or about Under Article 15. Charge. Suffering military stores to be damaged, in violation of the Fif- teenth Article of War. Specification. In that A. B., Captain, &c., commanding, &c., did suffer cer- tain military stores belonging to the United States, and in his charge 1559 as such commander, to wit , to be seriously damaged, by negli- gently allowing the same to be exposed to the elements, (or unguardes, dc.,) to the loss of the United States of about dollars. This at , on or about Under Article 16. Charge. Wasting ammunition in violation of the Sixteenth Article of War. Specification. In that A. B., Private, &c., having had certain ammunition, to wit rounds of cartridges duly issued to him by_, ^ , for use in the military service, did negligently waste the same by firing away the said cartridges without orders or sufficient cause. This at , on or about ■ Under Article 17. Charge. Selling clothing, in violation of the Seventeenth Article of War. Specification. In that A. B., Private, &c., did sell to one , (or to a person whose name is unknown,) certain of his clothing, to wit, one overcoat of the value of , issued to him for use in the military service. This at , on or about . Under Article 18. <3harge. Being Interested in sales, in Violation of the Eighteenth Article of War. Specification. In that A. B., Captain, &c., commanding the garrison of '__, did, for his private advantage, become pecuniarily interested, to the extent of one-third of the profits, with one C. D., in the sales of liquors allowed to be brought by the said C. D. into said garrison, for the use of the soldiers. This at , on or about . 1012 mhjtaky law and trecbdents. Urdgb Abticle 19. Chabob. Disrespect to the President of the United States, in violation of the Nineteenth Article of War. Specification. In that A. B., Captain, &c., did, publicly, In the presence of civilians and soldiers, use contemptuous and disrespectful words of and against , the President of the United tSates, by saying — (give language in full or in substance.) This at , on or about . Under Abticm; 20. Chabge. Disrespect toward liis commanding officer. In violation of the Twentieth Article of War. Specification. In that A. B., Captain, etc., did behave with desrespect toward his c(Hnmanding (rflicer. Colonel G. D., etc., by saying to him^ — (ffive Umguage used, and, if i>i the presence of other officers or of soldiers, so state). 1560 Or— 'by saying or of in regard to him — (give language or su])Stance, and, if in the presence of other officers, etc., so state). Or, by — (state acts or conduct manifesting disrespect). This at ^, on or about . Undeb Abticix 21. Ohaboe. Offering violence against his superior officer, in violation of the Twenty-first Article of War. 8pecificati(m. In that A. B., Private, &c., did offer violence against his su- perior officer, Captain C. D., &c., then being in the execution of his office, by threatening him, and attempting to strike him, with his musket. This at , on or about Chabge. Disobedience of Orders, in violation of the Twenty-first Article of War. Specification. In that A. B., Captuin, etc., having received from his superior and commanding officer C. D., Colonel, etc., a lawful command and order, re- quiring him to— {State what the order required) ; or — a lawful command and order in writing, expressed as follows, namely — {give the ivritten order in ftUl); did, nevertheless, deliberately refuse (or wholly neglect) to obey said order. This at , on or about Under Akticle 22. Chabge. Beginning a mutiny, in violation of the Twenty-second Article of War. Specification. In that A, B., a Sergeant of Company , did begin a mutiny In said Company by Inducing and causing the members of said Com- pany to stack arms, and to refuse to Captailn C. D., the commanding officer of the Company, to do any further duty until one B. P., a member of the Company, then confined in the guard house, should be released by the said Captain. This at , on or about . Chabge. Joining In a mutiny in violation of the Twenty-second Article of Waf. Specification. In that A. B., a private of the Begiment of , upon a mutiny having been begun and excited in said regiment against the author- ity of the post commander, Captain C. D., upon the occasion of the ccmfinement in the guard-house, by the order of said post commander, of E. F., a private of said' regiment, did join in the said mutiny, and, in combination with sundry other members of said regiment assembled on the parade-ground, did stack arms, and though ordered by said commander to return to his quar- ters, did, with his associates, refuse to disperse or do any further duty until the said B. F. should be released from his confinement. This at , on or about Chabge. Joining in a sedition, in violation of the Twenty-second Article of War. MDLITAKY LAW AKD PRECEDENTS. 1013 1561 Specification. In that A. B., a Private of the Regiment of upon a member of said regiment having been arrested for drunken and disorderly conduct and confined In the town jail by the civil au- thorities of the town of , did Join with other members of the regi- ment and sundry citizens in an attempt to break into the jail and release said prisoner, and did assault and beat the police officers and others of the said civil authorities, and other disorders did then and there commit, till restrained by means of a detachment of— sent from the post of , and compelled to return to his quarters. This at , on or about . Under Article 23. Chabqe. Failing properly to endeavor to suppress a mutiny, In violation of the Twenty-third Article of War. SpeGiflcatipn. In that A. B., Captain, Co. A, U. S. Infantry, being present at a mutiny among the soldiers of his company and of the said regi- ment, against the authority of the regimental commander, did fail to use his utmost endeavor to suppress tlie same, but did simpljf command the men of his own company to return to their quarters, and, on their refusing, took no means to compel their obedience or reduce them to discipline. This at , on or about Charge. Failing to give information of an intended mutiny, In violation of the Twenty-third Article of War. Specification. In that A. B., a Sergeant of Company , ._ Regiment, tJ. S...^_ — _ ., having knowledge that certain members of his company and of said regiment proposed and intended to begin and join in a mutiny, on the following day, against the authority of the regimental commander, did wholly fail and neglect to inform tlie said commander, or his company com- mandejc, of said intended mutiny^ so that the same was actually begun without die said officers being enabled to take measures to prevent it^ This at , on or about ^ Under Article 24. Chaboe. Violation of the Twenty-fourth Article of War. Specification. In that A. B., a Sergeant of Company , Regi- ment , being engaged in a fray with other members of said com- pany and regiment, and being ordered into confinement by Captain C. D., of tjie Regiment, , did refuse to obey such officer, and did draw a weapon, to wit, a pistol, upon him. This at , on or about . Under Articij: 26. Charge. Sending a challenge, in violation -of the Twenty-sixth Article of War, Specifljcation. In that A. B., Captain, &c., did invite C. D., Captain, &c., to a mortal combat with deadly weapons, by sending to him, by the hands 1562 of , (or if otherwise sent, state manner of sending,) a written challenge, in the words and figures following to wit: (Oive written challenge in full: if the challenge was verbal, gifoe words or substance.) This at , on or about Cbabge. Accepting a challenge in violation of the Twenty-sixth Article of War. Specification. In that A. B., Captain, &c., having received from Captain O. D., &c., a challenge to fight with him a duel, did accept said challenge b;^ sending to the said Captain C. D., by the hands of , {or if otherfise sent, state manner of sending,) a written acceptance of the same In terms as follows, to wit: (Oive written acceptance in full: if the writing is not accessible or the acceptance was verbal, gi/oe words or substance if known. ) This at , on or about . Under Articij! 27. Charge. Violation of the Twenty-seventh Article of War. Specification. In that A. B., Second Lieutenant, &c., being officer of the guard of the Post of , and being informed that Captain C. D., &c.. 1014 MILITARY LAW AND PBECEDENT3. intended and was about to engage in a duel outside said post, did knowingly and willingly suffer said Captain 0. D. to go forth from said post and fight Bach duel. This at , on or about Chaboe. Seconding and promoting a duel in violation of the Tw«ity-3eventh Article of War. Specification. In that Captain A, B., &c., — on the occasion of the challenging by First Lieutenant C. D., &c., of First Lieutenant B. F., &c., to fight with him a duel, and the acceptance of such challenge by the latter, and further at the duel thereupon fought between said officers, — did act as second of said Lieu- tenant C. D., and as such did carry said challenge and receive said acceptance, and was present at said duel, seconding and promoting the same. This at , on or about . Chaboe. Carrying a challenge, in violation of the Twenty-seventh Article of War. Specification. In that A. B., Second Lieutenant, &c., did carry a communica- tion in writing from Captain C. D., &c., to Captain E. F., &c., well knowing that the same was a challenge from said Captain C. D. to said Captain E. F., to fight with him a duel. This at , on or about . Under ARTictB 28. Chaboe. Upbraiding another officer for refusing a challenge, In violation of the Twenty-eighth Article of War. Specification. In that A. B., Captain, &c., — upon First Lieutenant C. D., &c., having declined a challenge sent him by First Lieutenant B. F., &c., and refused to fight with him a duel, — did upbraid said First Lieutenant O. D., by pro- nouncing him to be a coward. This at , on or about . Undeb Abticle 31. 1583 Chabge. Lying out of quarters, in violation of the Thirty-first Article of War. Specification. In that A. B., Private, &c., did, without leave from his proper superior officer, lie out of his quarters at the post of , by remaining during the night at This at , on or about Undeb Abticib 32. Chabge. Absence without leave, in violation ot- the Thirty-second Article of War. Specification. In that A. B., Private, etc., did, without leave fro^l his com- manding officer, absent himself from his company, from to (gpecifying duration of absence). This at , on or about (the dates above mentioned). Or — In that A. B., private, etc., having received a pass authorizing him to be absent from his company till , did, at the end of said time, neglect duly to return but did remain absent, without leave from his commanding officer, till This at , on or about (the dates above mentioned). Undeb Abticle 33. Chabge. Falling duly to repair to parade, in violation of the Thirty-thlr« Article of War. Specification. In that A. B., Captain, &c., though not prevented by sickness or other necessity, did fall to repair to the place of parade of said regiment at the time duly fixed for the parade thereof. This at , , on or about MHJTASY LAW AND PRECEDENTS. 1015 Chaeoe: Leaving parade, in violation of the Thirty-third Article of War. Specification. In that A. B., Captain, &c., having duly attended the parade of his regiment, did, without leave from his commanding officer, Colonel .commanding said regiment, quit and go from said parade without being dismissed or relieved therefrom. This at , on'or about . Under Article 34. Charge. Violation of the Thirty-fourth Article of War. Specification. In that A. B., Private, &c., was found one mile from the camp of Ms Company, to wit, at , without having leave in writing from his commanding officer. This at , on or about . Under Abticle 35. Charge. Violation of the Thlrty-flfth Article of War. Specification. In that A. B., Private, &c., did fail at the beating, (or sound- ing,) of retreat, to retire to his quarters. This at , on or about , Under Artice 36. 1564 Charge. Violation of the Thirty-sixth Article of War. Specification. In that A. B., Private, &c., having been duly detailed upon the duty of , did, for the consideration of hire C. D., Private, &c., to perform said duty for him. Or — In that A. B., Private, &c., did allow himself for the consideration of , to be hired by C. D., Private, &c., to perform for him the duty of , upon which he, the said 0. D., bad been duly detailed. This at . , on or about . Undbm Atticle 37. Charge. Allowing the hiring of duty, in violation of the Thirty-seventh Article of War. Specification. In that A. B., Captain, &c., having knowledge of the hiring by Private C. D. of Private E. F., of said company, to perform for him, the said C. D., the duty of , upon which he, the said G. D., had been duly detained, did not prevent or forbid such hiring, but did sanction and allow the same. This at -, on or about . Under Article 38. Charge. Drunkenness on duty, in violation of the Thirty-eighth Article of War. Specification. In that A. B., Captain, &c., having been duly detailed as officer of the day of the Post of , and having entered upon said duty, was found drunk thereon. This at , on or about Or— In that A. B., Private, &c., having been duly detailed as a member of the Post guard, and having entered upon said duty, was found drunk thereon. This at - , on or about . Under Article 39. Charge. Sleeping on post, in violation of the Thirty-ninth Article of War. Specification. In that A. B., Private, &c., having been duly detailed as a member of the Post guard, and duly posted as a sentinel at (give number or description of post), was found by — , (officer of the day or officer of the guard, etc.,) asleep on said post. This at , on or about . 1016 hhjtaby iaw and PBECEOEinrs. Chabge. Leaving post, in violation of the Thirty-ninth Article of War. Specification. In that A. B., Private, etc., having been duly- detailed as a member of the Post guard, and duly posted as a sentln^ at (jwe number or description of post), did, before being regularly relieved, leave said post and go to 1 (state where he went, etc.). This at , on or about . Under Abticle 40. 1565 Chabge. Violation of the Fortieth Artlcjle of War. Specification. In that A. B., Private, Ac, being duly detailed and acting as one of a guard of prisoners, did, ■without leave from his proper superior ofBqer and without urgent necessity, quit his said guard. This at , on or abQut TiNMat Abticle 41. Charge. Causing a false alarm In violation of the Forty-first Article of War. Specification. In that Ai B., Captain, &c.,. did,; by needleeply ^nd without authority causing the long roll to be sounded, (Create a false alann in the cfimp of ills regiment. This at , on or .about , Under Article 42. Charge. Afisbehavior Ijefore the enemy, In violation of the Forty-second Article of War. Specification. In tliat Major A. B., .commanding ,,_^ having been ordered forward with his said command to engage the enemy, did, while said command was advancing and under 'fire, abandon tfte same and .seek sajfety at the rear, and did not reappear until the engagement was comclnded. This at ^_ :_ on or about _. , — _ — Charge. Abandoning a post, 'In violation of the Fbrty-Second Article of War. Specification. In that Colonel A. B., &c., having been, by his proper superior. Brig. Gen. , duly placed in command of the Post of , and ordered to defend the same, did, la.disregard of his orders and his duty, shame- fully abandon his said post to the enemy. This at : , on or about ; Charge. Quitting his post to plunder and pillage, In violation of the Fmrty- second Article of War. Specification. In that A. B., Private, &c., being on duty with his regiment In the field, did. quit his post and colors for the purpose of plunder and pilUage, and did commit plunder and pillage of the property of one C. D., a citizen, by forcibly entering the house of said C. D., against his will, and taking therefrom and appropriating money and effects of the said C. D., of the value of dollars. This at , on or about . Under Abticub 43. Charge. Compelling a surrender, In violation of the Forty-third Article of War. 1566 Specification. In that A. B., Captain, &c., being an officer under the command of Colonel C. D., commanding the post of then threatened by the enemy, did, in combination with officers and soldiers of said command, by (state means employed,) compel said Colonel 0. D. to sur- render said post to the enemy. This at , on or about . Under Article 44. Charge. Violation of the Forty-fourth Article of War. Specification. In that A. B., Captain, &c., did make known the watchword to one C. D., a civilian ; he the said C. D. not being a person entitled to receive the same, according to the rules and discipline of war. Or — did presume to give to a watchword different from that which he had received. This at , on or about MILITAEY LAW AND PRECEDENTS. 1017 ITndeb Abticle 45. Charge. Relieving the enemy, in violatioa of the Forty-fifth Article of War. Specification. In that A. B. (describing him), did relieve the enemy by fur- nishing to certain soldiers of his army, whose names .are unknown, ammunition, to wit, ab'o^it one hundred pounds of powder. This at , on or about , . Under Abticle 46. Chaboe. Corresponding with the enemy, in violation of the Forty-sixth Article of War. Specification. In that A. B., , did directly hold correspondence with and give intelligence to the enemy, by writing and transmitting secretly through the lines to one C. D., an officer of the enemy's army, a communication in words and figures following, (or, in substance as follows,) to wit: — (Insert comtnunication^-or its substance — containing material information.) This at , on or about Undes Aeticlb 47. Chakge. Desertion, in violation of the Forty-seventh Article of War. Specifi^Mtion. In, that A. B., Private, &c., having been duly enlisted in the military service of. the United States, did desert the same, and did remain absent as a deserter therefrom till arrested at , by , on Or — ^having been duly enlisted, etc., and having received a furlough authoriz- ing him to be absent from said service, from ; to , did not at said last date return to said service, but did continue to remain absent with the intent to abandon the same, and did actually remain absent as a deserter therefrom till arrested at , by ' , on This at ; , on or about Under Article 49. 1567 Charge. Desertion, in violation of the Forty-ninth Article of War. Specification. In that A. B., Captain, &c., having duly tendered his resignation as such Captain, did, before having received due notice of the acceptance of th'e same, quit his post and- proper duties, without leave from the proper authority, and with intent to remain permanently absent therefrom. This at , , on or about . Under Abtictle 50. Charge. Desertion, in violation of the Fiftieth Article of War. Specification. In that A. B., Private, Company A, First Regiment U. S. In- fantry, didr without having been regularly discharged from said company and regiment, enlist himself in the Second Regiment U. S. Cavalry. This at , , on or about ,. Charge. Receiving, &c., a deserter, in violation of the Fiftieth Article of ■War. Specification. In that A. B., Captain, First Regiment U. S. Infantry, — upon one C. D., a Private of Hie Second Regiment U. S. Cavalry, ofEerjng himself to him, the said A. B., for enlistment In said First Infantry, without having been regularly discharged from said Second Regiment of Cavalry, — did, though knowing that he had not been so discharged but was a deserter from said regiment, neglect to confine him or give notice of his ofCence to the officers of said regiment, but did receive and entertain the said C. D., and suffer him to be enlisted in said First Regiment of Infantry, This at , on or about Under Article 51. Charge. Persuading to desert, in violation of the Fifty-first Article of War. Specification. In that A. B., Corporal, Company A, First Regiment U. S. Infantry, did advise and persuade C. D., a private of said company and regi- ment, to desert tJie U. S. Service; he the said C. D. thereupon deserting said service in company with the said A. B. This at , on or about ■ 1018 MILITARY LAW AND PRECEDENTS. UnDSB Abticle 54. Chahge. Violation of the Fifty-fourth Article of War. Specification. In that A. B., Captain, &c., commanding a detachment on the march, — ^upon complaint being made to him that Private C. D. of his com- mand had ill-treated a citizen, — did neglect to see. Justice done to the offender and reparation made to the party injured out of a part of the offender's pay or otherwise. This at , on or about Undeb Abticle 55. 1568 Chabgb. Violation of the Fifty-fifth Article of War. Specification. In this that A. B., Private, &c., (not being ordered to do so by a general officer commanding a separate army in the field or other compe- tent authority,) did maliciously destroy, by burning, a stack of hay, the property of one C. D., an inhabitant of the United States. This at , on or about Undeb Abticle 56. Chaboe. Violation of the Fifty-sixth Article of War. Specification. In that A. B., Private, &c.,— upon O. D., an Inhabitant of the country, bringing provisions into the camp of the U. S. forces at , — did do violence to said C. D., by assaulting and beating him and seizing upon the said provisions. Tills at (a place "in foreign parts,") on or about . Undeb Abticle 57. Chaboe. Forcing a safeguard in violation of the Fifty-seventh Article of War. Specification. In that A. B., Private, &c., did, with other soldiers of his regi- ment, force a safeguard Itnown to him to have been placed over the house and premises of one G. D., an inhabitant of the country, by overpowering the guard posted for the protection of the same, and violently entering said premises and committing waste and plunder therein. This at (o place "in foreign parts,") on or about Or — ^This at (o place vHthin the United States) on or about , and during rebellion against the supreme authority of the United States. Undeb Abticle 58. Chaboe. Murder, in violation of the Fifty-eighth Article of War. Specification, In that A. B., Private, &c., did feloniously and with malice aforethought, kill C. D., Private, &c., by shooting him with his rifle. This, in time of war, at , on or about . Chabge. Manslaughter, in violation of the Fifty-eighth Article of War. Specification. In that A. B., Private, &c., did unlawfully and feloniously kill one C. D., a civilian, by shooting him with a pistol. This, in time of war, at , on or about . Chabgb. Mayhem, in violation of the Fifty-eighth Article of War. Specification. In that A. B., Private, &c., in a personal combat with C. D., Private, &c., did, unlawfully and feloniously, inflict a violent injury upon 1569 and wholly blind one of his eyes, thereby depriving him, the said C D., of the use of that member in battle, and disabling him for active service as a soldier. This, in time of war, at , on or about , Chabge. Robbery, in violation of the Fifty-eighth Article of War. Specification. In that A. B., Private, &c., did unlawfully and feloniously make an assault upon one C. D., a civilian, and, by means of violence, take from his person property belonging to him, to wit fifty dollars in gold. This, in time of war, at , on or about , MILITABY LAW AND PRECEDENTS. 1019 Chabge. Arson, In violation of the Fifty-eighth Article of War. Specification. In that A. B., Private, &c., did unlawfully and feloniously set fire to and bum the dwelling house of one 0. D., a civilian. This, In time of war, at , on or about . Chabge. Burglary, in violation of the Fifty-eighth Article of War. Specification. In that A. B., Private, &c., did unlawfully and feloniously break into and enter, in the night time, the dwelling house of one 0. D., a civilian, with intent to commit larceny therein. This, in time of war, at , on or about . Chabge. Larceny, in violation of the Fifty-eighth Article of War. Specification. In that A. B., Private, &c., did unlawfully and feloniously take and carry away a gold watch, of the value of one hundred dollars, the property of one CD., a civilian, against the will and consent of him, the said C. D., and with the intent of appropriating the same to his, the said A. B.'s, own use. This, in time of war, at , , on or about , . Chabge. Rape, in violation of the Fifty-eighth Article of War. Specification. In that A. B., Private, &c., did unlawfully and feloniously have carnal knowledge of and ravish one O. D., by means of force and against her will and consent. This, In time of war, at , on or about . Chabge, Assault and battery, in violation of the Fifty-eighth Article of War. Specification. In that A. B., Private, &c., did unlawfully and feloniously assault and beat one C. D., a civilian, by knocking him down with his musket This, In time of war, at , on or about , . Undeb Abticle 59. Chabge. Violation of the Fifty-ninth Article of War. Specification: In that A. B., Captain, &c., commanding the Post of ; — when Private C. D., &c., a soldier under his command, was duly accused of having committed a criminal offence, to wit robbery, against the person of 1570 one E. F., a citizen of the State of , and an application for the ap- prehension and delivery to the civil authorities, of the said C. D., had been duly made by the Sheriff of the. County of , in behalf of said B. F., to him the said A. B., commanding as aforesaid ; — he the said A. B. did refuse to deliver over the said C. D. to the civil authorities, or to aid them in appre- hending him. This, in time of peace, at , on or abput . Undbb Abticle 60. Chabge. Presenting a fraudulent claim, in violation of the Sixtieth Article of War. Specification. In that A. B., Captain, &c., having duly received from Major , Paymaster U. S. Army, at Washington, D. C, his monthly pay for the month of January, 1886, did, notwithstanding, subsequently make and pre- sent to Major , Paymaster U. S. Army, a second and duplicate pay account and claim for pay for the same month, well knowing that said claim was false and fraudulent. This at the City of New Tork, on or about Chabge. Making and using a false writing, in violation of the Sixtieth Arti- cle of War. Specification. In that A. B., Captain, &c., for the purpose of aiding one C. D., a civil employee of the United States, to obtain the approval and allowance of a claim against the United States, for services rendered as such employee, did make and furnish to said C. D. a writing, in which he certified and stated that said claim was correct and just ; he the said A. B., Captain, &c., well knowing that the said claim was fraudulent in that said services had not been rendered as alleged therein, and that said certificate and statement were therefore false. This at , on or about . 1020 MIUTABY LAW JiSD PRECEDENTS. Chabge. Forgery, In violation of tlie Sixtieth Article of War. SpecifioAtion. In that A. B., Private, &c., for the purpose of obtaining the ap- proval, and payment to him, of a claim against the United States for certain pay and allowances set forth in a certain " final statement " prepared by him, did forge and counterfeit thereon the name and signature of Captain C. D,, &c., his company commander, as certifying to the correctness of the same. - This at , on or about Chabge. False payment, in violation of the Sixtieth Article of War. Spedficaiion. In that A. B., Captain^ &c., being a disbursing officer of the United States, and as such in possession of public funds of the United States, furnished and Intended for the military service thereof ; upon the presentation to him as such disbursing officer, by one C. D., a contractor vlth the United States, or a claim for dollars, as the amount due for certain sup- plies furnished by said contractor ; and upon, the signing, and rendering 1571 to the said A. B., by him flie said C. D., of a receipt for the said amount, did knowingly deliver to said G. D., in payment of said claim, an amount of said funds less than that for which he had received such receipt, to wit the amount of ^ dollars. This at , on or about _, ;_. CfiABGE. Making and delivering an untrue receipt, in violation of the Sixtieth Article of War. Specification. In that Captain A. B., &c., a disbursing officer of the United States, and as such anthorized to make,, and deliver to one C. D., a contractor with the United States, a paper certifying thie receipt by the United States, through him, the said A. B., &c., of certain property, to wit : -^ ftarnlshed by the said C. D., and intended for the military service of the United States, did, with Intent to defraud the United States, make, sign, and deliver to the said C. D., a certificate containing statements as to the quantity, (,or value, dc.,) of said property, without having full knowledge of the truth of said statements, but knowing that the same were in part false. This at , on or about _, - . Chabge. Embezzlement, in violation of the Sixtieth Article of War. Specification. In that A. B., Captain, &c., being a disbursing officer of the TJnited States, and as such having in his possessi<»i public funds of the United States, furnished and Intended for tlie military service thereof, and duly en- trusted to his charge for disbursement in and for said service, did wrongfully E|nd in violation of said trust, embezzle, and knowingly and wilfully apply tp his own use and benefit, by (specify the manner, purpose, dc, of the personal application,) a portion of said funds, to wit the sum of dollars. This at , on or about . Chabcs. Embezzlement, in violation of the Sixtieth Article of War. Specification. In that A. B., Captain, &c., being a disbursing officer Of the United States, and being as such authorized to draw for proper purposes offi- cial checks upon , a public depositary of the United States, in which were deposited public funds furnished and intended for the military service of the United States, did, for a purpose not prescribed or authorized by law, to wit for the payment of a personal debt, withdraw by check a portion of said funds, to wit the sum of ;__ dollars: this in violation of Sec. 5488, Re- vised Statutes. This at , on or about . Chabge. Misappropriation, in violation of the Sixtieth Article of War. Specification. In that A. B., Captain, &e., being a disbursing officer of the United States, and having as such been supplied with certain funds of the United States, to wit the sum of dollars, furnished for the 1572 military service but for the specific purpose of the erection of public quarters for soldiers kt the Post of -:. , did knowingly and wil- fully misappropriate the said funds by applying a portion of the same to the erection of public stables at said Post. This at , on or about MILITARY LAW AND PRECEDENTS. 1021 Oharob. Wrongful dlqtosition of public property, In Tiolatlon of the Six- tieth Article of War. . Specification. In that A. B., Captain and Assistant Quartermaster, U. 8. Army, having in his charge, as such Assistant Quartermaster, certain public horses furnished' for the military service of the United States, did wrongfully and knowingly dispose of one of said horses by loaning the same to C. D., a civilian, and allowing him to keep and use the said horse for his personal uses and purposes. This at ^ , during the month of , 1886. Charge. Wrongful disposition of public property, in violation of the Sixtieth Article of War. Specification, In that A. B., Private, &c., did, in deserting from the military service, wrongfully dispose of certain ordnance stores belonging to the United States, and furnished to him for use in the military service, to wit, (specify articles with their value*;) the same being property for which Captain 0. D., &c., was accountable. This at , on or about . Crabge. Purchasing public property in violation of the Sixtieth Article of BpeciflcatUm. In that A. B., Priyate, &c., did knowingly purchase from C. D., Private, &c., property of the United States, to wit one pistol which had been issued to the said C. D., for his use in the military service; he, the said C. D., having no lawful right to sell the same. This at -, on or about _ Undeb ASticle 61. Chabge. Conduct unbecoming an officer and a gentleman, in violation of the Sixty-first Article of War. Specification. In that A. B., Captain, &c., having conducted an unsuccessful expedition against hostile Indians, which had failed mainly through his negligence, did make and forward to his commanding officer. Colonel C. D., &c., an oflBiclal report of said expedition in which were contained certain statements as follows, to wit: — (Quote the statements so far as material.) Which said' statements were wholly, or in great part, false ; and were made by him the said A. B. for the purpose of deceiving his said commanding officer as to the matter of the responsibility for the failure of the said expedition. This at . on or about Chabge. Conduct unbecoming an officer and a gentleman. Specification. In that A. B., Captain, &c., having become, on (state the date), justly indebted to C. D., a civilian, in the sum 1573 of dollars, for articles sold and furnished by said C. D. to him the said A. B., by reason and i5)on the faith of the express offer and assurance of him, the said A. B., that the same should be fully paid for at the end of the then month, did nevertheless neglect, without due cause or excuse, to pay for the same at that time, and, though repeatedly applied to for payment, for more than one year succeeding; and, upon then, to wit, on - - (state the date), being urgently pressed by said C. D. for pay- ment, did evade the same by representing to said C. D. that he was wholly without means for such payment; which said representation was knowingly false, he, the said A. B., being in fact possessed of ample means for the pay- ment of said debt. This at . on the dates above mentioned. Chabge. Conduct unbecoming an officer and a gentleman. Specification. In that A. B., Captain, &c., having had a charge prefewed against him for drunkenness, by his commanding officer. Colonel C. u., &c., did, on (state the date,) in order to induce the withdrawal of said charge, and to escape a trial thereon, make and give to his said com- mander a written promise and pledge, upon honor, in terms as follows, to (insert pledge to abstain from spirituous liquors for a certain time stated.) 1022 MILITAKY LAW AND PRECBDKNTS. Whereupon, in consideration of the said promise and pledge, the said Colonel C. D. did not forward for trial the said charge but withdrew the same ; but, nothwithstanding, he the said A. B., Captain, &c., did soon after, to wit on , become drunk. This at , on the dates above mentioned. Under Abticle 62. Chaboe. Absence without leave, to the prejudice of good order and military discipline. Specification. In that A. B., Captain, &c., did without authority absent him- self from his post, command and duties, for one week, to wit from to , 1886. This at , on and between the dates mentioned. Chabge. Neglect of duty, to the prejudice of good order and military discipline. Specification. In that A. B., Major, &c., commanding a detachment operating against hostile Indians, and being ordered by his commanding officer. Brigadier General , TJ. S. Army, to pursue and attack a certain body of Indians {describing them), did, by unnecessary delays arid want of proper precautions, wholly fail to attack said Indians,, but did allow them to attack his com- mand to its serious disadvantage and deteriment. This at , on or about Charge. Conduct to the prejudice of gooji order and military discipline. Specification. In that A. B., First Lieutenant, &c., did in public, in the presence of enlisted men, engage in a noisy and disorderly alterca- 1574 tion with another officer, to wit Second Lieutenant C. D., &c., exchang- ing with him blows and applying to him opprobrious epithets. This at , on or about Charge. Conduct to the prejudice of good order and military discipline. Specification. In tliat A. B., Major, &c., being a disbursing officer of the United States, did, in violation of Paragraph 590, Army Regulations, gamble and bet at cards for money. This at , on or about . Charge. Conduct to the prejudice of good order and military discipline. Specification. In that A. B., Private, &c., U. S. Cavahry, did abuse and maltreat his horse, by needlessly and wantonly strikiiig and beating him on the head and body. Charge. Conduct to the prejudice of good order and military discipline. Specification. In that A. B., Private, &c., being a member of the guard in charge of certain prisoners employed in, (Mate upon wjiat or how employed,) was so careless and neglectful of his duty that one of said prisoners, to wit C. D., &c., was enabled to make his escape. This at , on or about Charge. Fraudulent enlistment, in violation of the Sixty-second Article of War. Specification. In that A. B., by wilfully and falsely representing to C. D., Captain, &c., recruiting officer, that he was twenty-one years of age and had no parent or guardian, whereas in fact he was but eighteen years of age and had a father living, did fraudulently enlist, and procure himself to be enlisted, in the military service of the United States, and did under and by virtue of said false statements and fraudulent enlistment, procure himself to be paid, and did receive, certain pay and allowances from the United States, to wit {state amount or nature of pay or allowances) . This at , , on or about ,.. Under Article 65. Charge. Breach of arrest, in violation of the Sixty-fifth Article of War. Specification. In that A. B., Captain, Company A, Regiment, &c., having been duly arrested and confined to his quarters, by order of his commanding MILITARY LAW AND PRECEDENTS. 1023 ofBcer Colonel C. D., &c., did, before being set at liberty, or having his limits enlarged, by his said commander or other competent authority, break his said arrest and confinement by quitting the same and proceeding to assume command of and to drill his said company, i This at , on or about 1575 Undek Article 68. Charge. Falling to make report of a prisoner, in violation of the Sixty-eighth Article of War. Speciflcation. In that A. B., Second IJeutenant, &c., being officer of the guard, and having had committed to his charge, as such, a certain prisoner, to wit one C. D., &c., did wholly fail, within twenty-four hours after such commitment, or after being relieved from his guard, to make to his commanding opcer the report in regard to such prisoner required by the said Article. This at , on or about Under Abticle 69. Charge. Violation of the Sixty-ninth Article of War. Speciflcation. In thaj; A. B., Second Lieutenant, &c., being officer of the guard,, and having had committed to his charge, as such, a certain prisoner, to wit one C. D., &c., did presume, without proper authority, to release the said prisoner ; Or — did suffer the said prisoner to escape. This at , on or about . Charge. Being a spy. Specification. In that A. B., Captain, &c., being an officer of the Army of , a public enemy at war with the United States, did, without authority and secretly, lurk and act as a spy in and about , a fortified military post of the armies of the United States,- and did there collect material Information in regard to the numbers, resources, and operations of said armies, with intent to impart the same to the said enemy. This, in time of war, at or near the said , on or about . Charge. Violation of the Laws of War. Specification. In that A. B., Captain, &c., being an officer of the army of , an enemy at war with the United States, did unlawfully and with- out authority penetrate within the lines of the army of the United States, and engage therein in recruiting men for the military service of the said enemy. This at , on or about ^_. Charge. Guerilla warfare, in violation of the Laws of War. Specification. In that A. B., at a time of war between the United States and , and not being commissioned, enlisted, or employed in the military service of either of said belligerents, but acting independently of the same, did, in combination with sundry other persons similarly acting, engage in unlawful warfare against the inhabitants of the United States, &nA In the prosecution of such warfare did attack and forcibly enter the dwelling-house of one C. D., a peaceable citizen of the United States, and rob him and his family of money and other property of the value of five hundred dollars, and, upon being resisted by the said C. D., did then and there unlawfully shoot and kill him. This at , on or about ^ See a case of breach of arr«st, tbUB committed, in Q. 0. 25, A. & I. Q. 0., Bichmond, 1862. Tbe officer was convicted and cashiered. XXI. 1576 FORM OF A RECORD OF A TRAIL BY A GENERAL COURT- MARTIAL. Pbockedings of a Genebat. Goubt-Mabtiai,, in the case of First Lieutenant , convened by tlie following Order : — Special Orders \ Headquabtbbs, Dbpt. of , No. ; 1895. A General Court-Martlal is appointed to meet at 10 o'clock a. V; on Monday, , 1895, or as soon thereafter as practicable, for the trial of First Lieutenant > and such other persons as may be brought before it. Detail fob the Coubt. 1. Lieutenant Colonel 2. Major 3. Captain 4. Captain . 5. First Lieutenant Captain , Judge Advocate. Upon the final adjournment of the court, the members thereof will return to their proper stations. The travel enjoined is necessary for the public service. By command of Brigadier General Assistant Adjutant General. FiBST Day. Pursuant to the foregoing Order, the Court assembled at the place, date, and hour therein specified. Present the following Members: — Llept. Col Captain Captain First Lieutenant-.^ 1577 The Judge Advocate, Captain , and the Accused, First Lieutenant , were also present. There b^ng no quorum, the members present adjournal to at _ o'clock A. M. Second Day. Pursuant to the foregoing Order and to adjournment the Court reassembled at the said place and date, at the hour of o'clock a. m. Present the fol- lowing Members : — Lieut. Col Major Captain Captain First Lieut 1024 MIUTABY LAW AND PEECEDENTS. 1025 The Judge Advocate, Captain , and the Accused, First Jjieutenant , were also present. Major , the Member absent on the first day, tendered an explanation in writing of his absence which was directed by the Court to be annexed to the Record, marked " Exhibit A." The Judge Advocate stated that he had appointed, as Reporter for this trial, Mr. , who, being introduced, was duly sworn by the Judge Advocate. The Accused asked leave to Introduce, as his Counsel, , Esq., Counsellor at Law. The Court assenting, the Counsel appeared and^~took his seat. The Order convening the Court was then read by the Judge Advocate, and the Accused was asked if he wished to object to any of the Members. He thereupon, through his Counsel, interposed a challenge to Captain , on the ground that he had investigated the ease and preferred the charges, and was to be presumed to have formed an opinion on the merit. The challenged Member, on being called upon by the President of the Court for remarks, stated that while he had in fact preferred the charges after an examination of the evidence, he did not consider that he had formed such opinion as to affect his impartiality. After argument by the Judge Advocate and Counsel, the Court was cleared for deliberation, the challenged Member, the Accused and the Judge-Advocate withdrawing. On the doors being reopened, it was announced by the Presi- dent that the challenge was sustained. The Accused, being asked if he objected to any other Member, replied in the negative. The Court being reduced below a quorum, the Judge Advocate was instructed to communicate the fact to the Convening Authority. The Court thereupon adjourned to at o'clock a. m. 1578 Thikd DAT. Pursuant to adjournment, the Court reassembled at the said place and date at the hour of o'clock a. m. Present the following Members: Lieut. Col Major Captain E'lrst Lieut The Judge Advocate, Captain , and the Accused, First Lieut. , with his Counsel, were also present. The Proceedings of the foregoing day were read and approved. The following Order, detailing a new Member, was then read by the Judge Advocate. (Insert copy of O. O. or S. O.) The newly-detailed Member, Captain , took his seat upon the Court. The Accused being asked if he desired to object to said Member, replied In the negative. The Members of the Court were then severally sworn by the Judge Advo- cate, and the Judge Advocate was duly sworn by the President of the Court ; — all of which oaths were administered in the presence of the Accused. The Accused was thereupon arraigned upon the following Charges and Specifications : — (Insert original Charges, dc, or copy.) To the first Charge, ( " Disrespect to his Commanding Officer, in violation of the Twentieth Article of War,") and its Specifications, the Accused, through his Counsel, interposed the Special Plea of Former Trial, — in that he had been arraigned upon the same before a previous General Court-Martlal, had duly pleaded thereto, and the proceedings had thereupon been discontinued by the United States, without fault or act of his. The Judge Advocate replied that, immediately upon the original arraign- ment, the Court had been dissolved, for the reason that several of the Mem- 440593 0-42-65 1026 MILITABY LAW AND PRECEDENTS. bers had been required for active service in the field; and he contMuJed that, as the proceedings had been carried no farther, there had been no " former trial " in the sense of the 102d Article of War. The fact in regard to the dissolution of the first Court being conceded, on the part of the Accused, to be as stated, — after argument had upon the Plea, the Court cleared for deliberation, (the Judge Advocate withdrawing,) and on Its being reopened, it was announced by the President that the Plea was not sustained. The Accused, through his Couns^, then moved to strike out the Specification to the Second Charge, (" Breach of Arrest, In violation of the Sixty-fifth 1579 Article of War,") on account of indefiniteness and uncertainty; It alleg- ing simply that the Accused, having been confined, &c., did, without au- thority, " quit his confinement," without setting forth in what the alleged offence of quitting consisted, ♦. e. where he went or what he did ; so that he, the Accused, was not apprized by the Specification with what particular act he was charged, or what he was called upon ts defend. The Judge Advocate replied, and the Court was then cleared, the Judge Advo- cate withdrawing. On reopening, it was announced by the President that the Motion would be granted unless tie Judge Advocate should amend the Specifica- tion by averring in what act or acts the alleged offence consisted. The Judge Advocate thereupon, by consent of the Court, amended the Specification by adding thereto the words — " by going to, and remaining for one hour at, the quarters of another oflicer. Captain of said regiment." The accused thereupon pleaded to the several Charges and Specifications, as follows : To the 1st Specification, First Charge— Not Guilty. To the 2d Specification, First Charge— Not Oullty, To the First Charge — Not Guilty. To the Specification, Second Charge — Guilty. To the Second Charge — Guilty. The President then directed all persons present as witnesses to leave the court-room and not return until severally called upon to testify. TESTIMONY FOB THE PBOSECtlTION. The Judge Advocate thereupon opened the Testimony for the Prosecution by calling as a witness Captain , who, being duly sworn, testified, in answer to questions by the Judge Advocate, as follows : Question. Please state your name, rank and office. Answer. (Stating particulars in full.) Question. Do you know the accused,' First Lieutenant , and, if so, how long and where have you known him? Answer. I do; I have known him for four years, at , and at Question. Do you know his commanding officer. Colonel 7 Answer. I do. Question. Were you present at an interview and conversation between the Accused and his said commanding officer, at , on July 1st last? Answer. I was present and heard the conversation. Question. Did not the Accused say to the Colonel ? (Stating what was alleged in the Specification as claimed to have been said by Accused.) The Accused objected to the question as obviously leading. The Court, without clearing, sustained the objection. Question. State all that you heard said at that interview. Answer. What I heard was as follows. (States details of conversation.) Direct examination closed. Cross-examination by the Accused. 1580 Question. How neSr were you to the parties at this conversation? Answer. I was within about ten feet. Question. How did the Accused appear — excited or the reverse? Answer. Somewhat excited, but not violent. Question. Did yon consider his manner disrespectful? The Judge Advocate objected to the question as calling for the opinion of the witness on the merits of the charge. The Accused, by his Counsel, modified the question as follows: Question. State more precisely what was the manner of the Accnsed, MILITARY LAW AND PKEOEDENTS. 1027 Answer. His manner was decided, and, as I said, rather excited, but, apart from the words used, not offensive. Cross-examination closed. Examination by the Court. Question. What was the manner of Colonel on this occasion? Answer. Short and emphatic. The examination of the witness being closed, his testimony was read over to him, and pronounced by him to be correctly recorded. The hour of 3 p. m. having arrived, the Court adjourned to at 9 o'clock A. M. TotrBTH Day. Pursuant to adjeurnment, the Court reassembled at the said place and date, and at the hour appointed. Present all the Members, to wit : Lieut. Col. Major Captain Captain First Lieut. The Judge Advocate, Captain , and the Accused, First Lieut. , with his counsel, were also present. The Proceedings of the previous day were read and approved. Sergeant . , a witness for the prosecution, being duly sworn, testified, in answer to questions by the Judge Advocate, as follows: ^ ^ ie ^ * * * Cross-examination by the Accused. The Judge Advocate then Introduced, on the part of the prosecution, the Depositions of Corporal and Private , taken (in order to avoid the necessity for, a continuance) under a Stipulation entered into between the Judge Advocale and the Accused prior to the assembling of the Court. These Depositions are hereto annexed, marked " Exhibits B " and " C." The Judge Advocate announced that the prosecution here rested. TESTIMONY FOB THE DEFENCE. A. B., a witness on the part of the Defence, was then called and, being duly sworn, testified as follows: Question. What is your name, residence and occupation? 1581 Answer. My name is A. B., I reside in San Francisco, and I am Captain of the four-master, "Monarch of the Seas." Question. Do you know the Accused, and where and how long liave you known him? Ansvoer. I do, and I have known him for three years in San Francisco. &c. &c. &c. Cross-examination by the Judge Advocate. Question. Have you not been convicted of manslaughter in the U. S. Dis- trict Court? Ansiver. I refuse to answer. The Judge Advocate stated that he insisted on the question. The Accused, by his Counsel, objected on the ground that, as the witness declined to answer, the supposed conviction could be proved only by the judicial record. The Court, vrithout clearing, announced that the objection of the Accused was sustained. C. D., a witness on the part of the Defence, was then called. The Judge Advocate objected to the examination of this witness, on the ground that he was an atheist and insensible to the obligation of an oath, and proposed to interrogate him as to his religious belief. 1028 MILITARY LAW AND PRECEDENTS. The Accused, by his Counsel excepted to this mode of proof, and read from I Greenleaf on Evidence §370, to the effect that the witness could not properly be questioned in regard to his personal faith, but that his incompetency must be established by the testimony of other persons as to his declarations, &c. After argument the Court was cleared, (the Judge Advocate withdrawing,) and, on its being reopened, It was announced by the President that the ex- ception taken by the Accused was sustained. The Judge Advocate having no other testimony to offer on the point of com- petency, the witness was then duly sworn and testified as follows : • ••••«• Private , a witness on the part of the Defence, was then duly sworn. A Member of the Court called attention to the fact that this witness was not in full uniform or clean. The Court, through the President, directed the witness to return to his quarters, clean himself, and report again in a neat and tidy condition and in his proper uniform. At this stage, the proceedings of the Court were disturbed by a loud and violent altercation between two enlisted witnesses in the adjoining witness- room. At the suggestion of a Member, the Court was cleared for deliberation, the Judge Advocate withdrawing. On its reopening, the disorderly parties were brought before the Court, and called upon to show cause why they should not be punished as for a contempt according to the 86th Article of War. Having no explanation or excuse to offer, they were adjudged by the Court to be con- fined, each 48 hours, in the Post guard-house. Private , having reported to the Court in a proper con- dition, then testified, in answer to questions by the Accused, as follows : The Judge Advocate waived cross-examination. 1582 The hour of adjournment, as fixed by the 94th Article of War, having arrived, the Court adjourned to meet on the following day at8o'clock.A.M. FUTH DAY. Pursuant to adjoui-nment, the Court reassembled at the said place and date, and at the appointed hour. Present all the Members, to wit : Lieut. Col Major Captain ; Captain First Lieut The Judge Advocate, Captain , and the Accused, First Lieut. , ■with his Counsel, were also present. The Proceedings of the previous session were read and approved. ^rig. Gen. , a witness on the part of the Defence, being duly sworn, testified as follows: Question iy the Accused. Please state to the Court what you know of the character and services of the Accused as an officer. Answer. * * * The Accused then introduced, without objection on the part of the Judge Advocate, an Official Statement of his service, as furnished from the Adjutant General's Office, and hereto annexed, marked " Exhibit D." The Accused, by his Counsel, announced that the Defence here rested. BBBDTTINO TESTIMONY. The .Tudge Advocate, by way of rebutting evidence, then introduced as a witness, E. F., a civilian, who, being duly sworn, testified as follows : Question. State your name, residence, and occupation. Answer. My name is . , my residence , and my occupation Question. Do you know C. D., a witness for the defence, and how long have you known him? MHJTABY LAW AND PRECEDENTS. 1029 Answer. I have known him for ten years past. Question. Do you know his general character for truth and veracity, and if so what is it? Answer. It is very bad. Gross-examination. Question. How do you know the character of C. D. for veracity? Answer. Mainly from my own knowledge and experience of him — ^my own transactions with him. Question. Have you heard other persons speak of his want of veracity, and If so what persons? Answer. I may have, but I do not remember what persons. The accused then moved to strike out all the testimony of E. P., relat- 1583 ing to the veracity of C. D., as not being evidence of general reputation, but merely or substantially a statement of the Individual opinion of the witness founded on his own personal relations with C. D. The Judge Advocate replied, and the Court was cleared, the Judge Advocate witlidrawing. On reopening, it was announced by the President that the motion was granted. The testimony on both sides being closed, the Accused, by his Counsel, read to the Court the address, hereto annexed, marked " Exhibit E." The Judge Advocate then read an Address, hereto annexed, marked "Ex- hibit F." The Accused and the Judge Advocate then vrithdrew, and the Court was cleared and closed for deliberation on its judgment, and after due consideration, found the Accused, First Lieutenant as follows : Of the 1st Specification, First Charge — Guilty, except as to the words "rudely And violently" substituting the words — in a decided manner. Of the First Charge— Not Guilty. Of the Specification, Second Charge — Guilty, confirming his Plea. Of the Second Charge — Guilty, confirming his Plea. And the Court did thereupon' sentence him, the said First Lieutenant The Accused and the Jadge Advocate then withdrew, and the Court did thereupon sentence him, the said, &c. , To he dismissed from the military service of the United States. We certify that the above Is a correct and true record.* (Signature of President.) (Signature of Judge Advocate.) (Exhibits A, B, O, D, E and F, — each on a separate sheet or sheets.) Recommendation. The undersigned Members of the Court, in consideration of the record and services of the Accused In the late war and subsequently, as exhibited by the testimony, do recommend a commutation, by the reviewing authority, of the sentence of dismissal made mandatory by the 65th Article of War. (Signatures of Members.) »In a case of an enlisted man, where there are previous convictions to be introduced, a form such as the following will properly succeed the record o* f*? fi°2j"S J— The Accused and Judge Advocate were then recalled, and the following evidence of premoua convictions was offered by the latter, ^^ *. ^i / ne^ a n v 'The mere signatures will constitute a sufficient authentication, (par. 954, A. E.,) without the certificate. 1030 MHJTABY LAW AND PRECEDENT^. 1584 Proceedings on Revision. The Court reassembled, pursuant to the following Order. Present all the Members. (Insert copy of Order requiring the Court fo reassemble for the correction of its record hy supplying a finding to the 2d Specification of the First Charge, omitted in the Record.) The Court thereupon proceeded to supply the omission indicated In the Order, by further finding the Accused, First Lieutenant , as follows : Of the 2d Specification, First Charge— Not Guilty. And the Court thereupon adjourned. We certify the above to be a correct and true record. (Signature of President.) (Signature of Judge Advocate.) Action. Headqtjaetebs, In the case of First Lieutenant , U. S. Army, the pro- ceedings, findings, and sentence are approved, and, in compliance with the 106th Article of War, the record is forwarded for the action of the President. Brig. Gen. Commanding. Executive Mansion, The sentence in the foregoing ease of First Lieutenant , U. S. Army, is confirmed, but, in consideration of the recommendation of the Members of the Court, Is commuted to suspension from rank and command on half pay, for one year. President XXII. 1585 SUBPOENA FOR CIVILIAN WITNESS. United States ] V. > Subpoena. The President of the United States, to Greeting: You are hereby summoned and required to be and appear in person, on the day of , 18—, at , before a General Gourt- Martlal of the United States (convened by Special Orders No. , Head- (juarters. Department of , dated , 18 ) ; 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 , on , 18 (Official signature of Judge Advocate of the Court.) SUBPOENA DUCES TECUM. Same as above, adding at end as follows : And you are hereby required to bring with you, to be used as evidence In said case, the following described documents, to wit : (Specify the documents or papers called for.) RETURN OF SERVICE OF SUBPOENA. (To be indorsed on Original.) I certify that I made service of the within subpoena on , the witness named therein, by delivering to him in person a true copy of the same at . on the day of , 18— (Signature.) 1031 XXIII. 1586 FORM OF PROCESS OF ATTACHMENT OF WITNESS. United States V. Attachment for Witness. The President of the United States, to Greeting: Whereas, at , on the day of , 18 — , a subpoena was duly personally served on of , requiring him to be and appear In person to testify as a witness for the in the above-named case, at , on the day of , 18 , at o'clock, M., before a Gteneral Cburt^Martial of the United States, duly convened by the order of ^-, In and by Special Orders, No. , Headquarters, Department of , dated , 18._; And whereas the said has disobeyed and wholly failed to comply with the said subpoena ; Now, therefore, by the authority and in pursuance of Section 1202 of the Revised Statutes of the United States, you are hereby commanded and em- powered to take and attach the said wherever he may be found within the United States, and forthwith bring him before the said General Court-Martlal assembled at aforesaid, then and there duly to testify as a witness in said case, as in and by the said subpoena summoned and required. Dated at on , 18 (Official signature of Judge Advocate of tlie Court) 1032 XXIV. 1587 FORM OF DEPOSITION, BY STIPULATION. Bkfoke a Genebal Cotjbt-Maktial, convened by Special Order, No. , Head- quarters, Department of , 188 United States 1 V. [stipulation for Deposition. It is hereby stipulated and agreed by and between the undersigned, , the Judge Advocate of the said Court, in said case, and , the accused party therein, that the Deposition of , a Witness (or Witnesses) for the in said case, now at , may be taken by such officer or person as may be designated by the proper authority, upon the Interrogatories hereto annexed and agreed upon by the said parties, and that said Deposition may be read as evidence before the Court in said case, according and subject to the provisions of the Ninety-first Article of War, and subject to such objec- tions to the answers as the rules of evidence may justify. And it is further stipulated and agreed that said Deposition, when complete, shall be transmitted to the President of said Court, and shall be first opened by him in the presence of the Court and of the parties hereto. Subscribed at on . (Official signature of Judge Advocate.) (Signature of Accused.) INTEBBOGATOBIES. To be propounded to , a Witness for the In the above-mentioned case, according to the annexed stipulation: FIBST INTEBBOGATOET. SECOND INTEBBOGATOET. THIBD INTEBBOGATOET. "&cT &C. &C. The Deposition. Of , a Witness for the in the above- m'entioned case, who, being first duly sworn, makes answer to the 1588 Interrogatories appended hereto and to the foregoing Stipulation, as follows : AN S web to FIBST INTEBBOGATOET. &C. ANSjWEE TO SECOND INTEEEOGATOBT. ANSWEB TO THIED INTEBBOGATOET. &c" ^Tc. (Signature of the Deponent.) 1033 1034 MILITARY LAW AND PRECEDENTS. Authentication. State op \ County of J**- I, of a Notary Public, &c. __ duly appointed and qualified, (or a -Judge Advocate of a Department or Court- Martlal, or trial officer of a Summary Court, specifying the department or court,^) do certify that on the day of , personally appeared be- fore me, , the witness named in the foregoing Stipulation and Deposition, who, having been by me first duly sworn, made response to the annexed Interrogatories in words and figures as in the appended answers set forth and contained, and further, that he thereupon subscribed the said Deposition in my pi-esence. [Signature of the Notary, or other qualified offi- [Seal, if any.] cial, by whom the oath was administered.] , , the officer designated and directed by to cause to be taken the deposition of the within-named , do certify that the same was duly made and taken under oath as hereinbefore set forth and contained.' (Oflicial signature of officer.) ' If tbe oath be tidminlstered by a Judge advocate or trial officer, the formal part at the head of the authentication should be omitted, and tbe place be noted in tbe body of the certlflcate after the date. ' This additional certificate is not an essential : and where the deposition is talcen by and sworn to before a Judge advocate, &c., may properly be omitted. XXV. 1589 FORMS OF RETURN TO WRITS OF HABEAS CORPUS FOBM OF RETUBN to A. WSIT OF HABEAS COEPUS, ISSTJED BY A STATE COUKT. [Name of the Court.] In re fOn Habeas Corpus. iReturn of Respondent. To the Honorable , Judge of said Court: The Respondent in said case, Captain , United States Army, upon whom has been served the writ of habeas corpus therein issued, respectfully makes return to the same, and states to this Honorable Court that he holds the above-named by the authority of the United States, as a deserter from the Army of the United States, under cir- cumstances as follows, to wit : That the said was, at , on , 18 — , duly enlisted in the United States military service, as a private soldier of the regiment of , for the term of five years from the said date of enlistment ; ' That, at , on , 18 , the said deserted from said service and regiment, and did remain unlawfully absent as a deserter therefrom until his aprehension as such, as hereinafter specified. That, at , on , 18__, the said was duly apprehended as a deserter from said service and regiment by , and thereupon duly committed by said to the custody and charge of this Respondent, then and now commanding the Post of ; That a charge for his said desertion, a copy of which Is hereto annexed, has been duly preferred against the said , with a view to his trial thereon by a General Court-Martial ; and that it is proposed to bring him to trial thereon without unreasonable delay, by and before a General Court-Martial convened (or to 6e convened) by (specify Commander and Order, if any). Wherefore, without intending any disrespect to this Honorable Court, but for the reason that he is advised and believes that, under the rulings of the Supreme Court of the United States, this Court is not empowered to order 1590 the release of a prisoner held under and by virtue of the authority of the United States; and in obedience to the order of the President of the United States, of July 18, 1871, as set forth in the General Regulations for the Army of the United States, this Respondent respectfully declines to produce to this Court the body of the said , deserter as aforesaid. Dated at , on , 18__ (Official signature of Respondent) FoBu OP Retukn to a Wbit or Habeas Cobpus Issued feom a Fedebal Cotjet. The same, in general, as in the preceding form, except as to the concluding paragraph — for which substitute the following: In obedience, however, to the said writ, the Respondent herewith produces before this Honorable Court the body of the said , for such disposition and orders as by this Court may be deemed to be legally required and appropriate. (Signature of Respondent.) Dated at , on , 18— " If the enlistment paper of the soldier Is accessible, a copy may well be annexed to the return, as may also an order of arrest, commitment, etc, (If any), or other written evidence going to identify the soldier or illustrate his status. For a form of return by an officer commanding a Military Prison, see case of In re Kaulbach, published In G. O. 7, DlvlBlon of the Pacific, 1885. 1035 XXVI. 1591 EXTRACTS FROM THE NEW ARMY REGULATIONS OF 1895. AsTiCLE LXXV. — Courts-Martial. 917. The order appointing a court-martial will name its members in order of ranlc, and they will sit according to rank as annomiced. A decision of the appointing authority as to the number that can be assembled without injury to the service is conclusive. 918. The place of holding a court is designated by the authority appointing it. Courts will be assembled at posts or stations where trial or examination will be attended with the least expense. A member stationed at the place where it sits is liable to duty with his command during adjournment from day to day. Courts will, as far as practicable, hold their sessions so as to interfere least with ordinary routine duties, and when necessary for the sake of imme- diate example, it wiU be ordered to sit without regard to hours. 919. A president of the court will not be announced. The oflScer highest in rank present will act as president. 920. A court-martial has no power to punish its members, but for disorderly conduct a member is liable as for other offenses against military discipline. Improper words used by him should be taken in writing, and any disorderly conduct reported to the appointing authority. 921. When a court sits in closed session the judge-advocate will withdraw, and when legal advice or assistance is required, it wiU be obtained in open court. 922. The judge-advocate will summon the necessary witnesses for the trial, but will not summon witnesses at the exi>ense of the Government without the order of the court, unless satisfied that their testimony is material and neces- sary. 923. Judge-advocates of military courts, in Issuing process under section 1202, Revised Statutes, to compel the attendance, as witnesses, of persons not in the military service, will formally direct the same to an oflScer designated by the department commander to execute It. The nearest military commander will furnish the necessary military force for the execution of the process, If force be required. A subpoena may be served by any person. 924. Judge-advocates of courts-martial will, whenever it Is possible, send subpoenas through military channels. 1592 925. An officer or enlisted man who receives a summons to attend as a witness before any military court, board, civil court, or other tribunal competent to Issue subpoenas, which is sitting beyond the limits of the depart- ment where he is serving, will, before starting to obey the summons, forward it through the proper channel to his department commander, that necessary orders, or authority to obey a civil process, may be given. In urgent cases, or when the public interest would be liable to suffer by delay, a post commander may authorize immediate departure, reporting his action and reasons therefor to the department commander. 926. The commanding officer of a post where a general court-martial Is con- vened vrill, at the request of any prisoner who Is to be arraigned, detail as counsel for his defense a suitable officer, one not directly responsible for the discipline of an organization serving thereat, nor acting as a summary court. If there be no such officer available the fact will be reported to the appointing authority for action. An offldpr 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. 927. Charges against an enlisted man, forwarded to the authority competent to appoint a general court for his trial, will be accompanied by a statement in the prescribed form setting forth the dates of his present and former enlist- 1036 MILITAEY LAW A3JD PRECEDENTS. 1037 ments, 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 intended simply for the information of the convening -authority, and will not be introduced in evidence nor made a part of the record of the trial, but v\rlll be returned to the convening authority vrith the record. 928. Commanding officers will, before forwarding charges, personally inves- tigate 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. 929. In every case where evidence of previous convictions is admissible, and the accused is convicted of the offense, the court, after determining its findings and before awarding sentence, vrtll be opened for the purpose of ascertaining whether there be such evidence ; and if so, of hearing It. These convictions must be proved by extracts from the records of previous trials, or by duly authenticated orders promulgating the same. The proper evidence of previous convictions by summary court Is the copy of the summary court record fur- nished to company and other commanders, as required by paragraph 932, or one furnished for the purpose, and certified to be a true copy by the post com- mander or adjutant. When the proof produced is the copy furnished to the company or other commander, it will be returned to him and a copy of it attached to the record of the general, regimental, or garrison court trying the case. Charges forwarded to the authority ordering a general court, or submitted to a summary, garrison, or regimental court, must be accompanied by the proper evidence of previous convictions, when such evidence is admissible. 1593 930. Commanding officers are not required to bring every dereliction of duty before a court for trial, but will endeavor to prevent their recur- rence by admonitions, vrithholding of privileges, and taking such steps as may be necessary to enforce their orders. 931. Non-commissioned officers above the rank of corporal shall not. If they object thereto, be brought to trial before regimental, garrison, or summary courts-martial, without the authority of the officer competent to order their trial by general court-martial ; nor will sergeants of the post non-commissioned staff or hospital stewards be reduced, but they may be dishonorably discharged whenever reduction is included in the limit of punishment. 932. Charges preferred for offences cognizable by inferior courts will be laid before the post commander, who, if he thinks that the accused should be tried, will cause him to be brought before the summary court, where he will be arraigned and allowed to plead according to prevailing court-martial practice. If an accused neither demands a removal of his case to a regimental or garrison court, nor (he being a non-commissioned officer above the grade of corporal) objects to trial by an inferior court, nor pleads guilty, and the summary court officer is not the accuser, witnesses vrill be sworn and evidence received — the accused being permitted to testify in his ovra behalf and make a statement; but the evidence and statement will not be recorded. The summary court, as soon as trial is concluded, will record its findings and sentence in the prescribed record book and submit It to the post commander, who will record therein his approval or disapproval, in part or In whole, with date and signature. Should the post commander be the summary court, the findings and sentence will be recorded In like manner. No other record of the proceedings will be kept, and such trials will not be published in orders. Post commanders will furnish com- pany and other commanders with copies of the summary court record relating to men of their commands, said copies to be certified to be true copies by the post commander or adjutant. 933. When a post commander sits as a summary court, no approval of the sentence is required by law, but he should sign the sentence as post commander and date his signature. 934. Charges submitted for trial by a summary court should be accompanied by evidence of previous convictions, to be furnished when practicable by the officer preferring the charges ; or if the evidence Is contained in the summary court record book, a reference to it will be sufficient. If this evidence is not submitted or cited, the summary court may take judicial notice of any such evidence which that book contains. 935. The summary court will be opened at a stated hour every morning ex- cept Sunday, for the trial of such cases as may properly be brought before it. Trials win be had on Sxmday only when the exigencies of the service make It necessary. The commanding officer, and not the court, will determine when 1038 MHJTARY LAW ANP PRECEDENTS. and what cases shall be brought before It. Delay in the trial of a soldier by summary court does not invalidate the proceedings, but may be considered by the court in awarding sentence. 1594 936. Summary courts are subject to the restrictions named in the eighty-third Article of War. Soldiers against whom charges may be preferred for trial by summary court will not be confined in the guardhouse, but will be placed in arrest in quarters, before and during trial and while awaiting sentence, except when in particular cases restraint may be necessary. 937. Whenever, under the provisions of the summary court act, it becomes necessary to convene a garrison or regimental court, the order appointing it will state the fact that brings the case within the exceptions of the law. 938. Whenever by any of the Articles of War punishment is left to the dis- cretion of the court, it shall not, in time of peace, be in excess of a limit which the President may prescribe. The limits so prescribed are set forth in the Judge-Advocate's Manual, published by authority of the Secretary of War.' 939. Sentences imposing tours of guard duty are forbidden. 940. When the sentence of a court-martial prescribes imprisonment, the court will state therein whether the prisoner shall be confined in a penitentiary or at a post, being guided in its determination by the 97th Article of War. 941. General courts may sentence sqldiers to confinement in a penitentiary (or offences which are thus punishable by some statute of the United States or by a statute or the common law of the State, Territory, or District in which the offences are committed. Department commanders will designate the United States Penitentiary at Fort Leavenworth, Kaiisas, as the place of execution of such sentences, in cases in which the term of cotafiiiement imposed is more than one year. If-iay State or Territory within a military department has made provision by law for the confinement of such prisoners in its penitentiaries, the department commander, with the approval of the Secretary of War, may desig- nate one as the place of execution of sentence. 942. When the court has sentenced a prisoner to confinement at a post, no power is competent to increase the punishment by designating a penitentiary as a place of confinement. 943. When a sentence of confinement or forfeiture is In excess of the legal limit, the part within the limit is legal and may be executed. 944. When the date for the commencement of a term of confinement imposed by sentence of a court-martial is not expressly fixed by the sentence, the term of confinement begins on the date of the order promulgating it. The sentence is continuous until the term expires, except when the person sentenced is absent without authority. 945. The order promulgating the proceedings of a court and the action of the reviewing authority will, when practicable, be of the same datd. 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 ap- 1595 ply to sentences of forfeiture of all pay and allowances. A soldier await- ing result of trial will not be paid before the result is' known. 946. The authority which has designated the place of confinement, or higher authority, may change the place of confinement of any prisoner under the juris- diction of such authority. 947. A sentence to confinement, with or without forfeiture of pay, can not become operative prior to the date of confirmation. If it be proper to take into consideration the length of confinement to which the prisoner has been sub- jected previous to such confirmation, it may be done by mitigation of sentence. 948. When soldiers awaiting result of trial or undergoing sentence commit offenses for which they are tried, the second sentence will be executed upon the expiration of the first. 949. A sentence adjudging a dishonorable discharge, to take effect at such period during a term of confinement as may be designated by the reviewing authority, is Illegal. 950. The time at which a dishonorable discharge Is to take eflEect, as fixed by a sentence, can not be postponed by the reviewing officer. 951. 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 $120. When the sentence Is silent as to the date of commencement of for- feiture of pay, the forfeiture will begin at the date of promulgation of the > The official publication Is in G. O. 16 of 1805. Bee ante, p. 1001. MILITARY LAW AND PRECEDENTS. 1039 sentence In orders, and will not apply to pay which accrued previous to that date. 952. An order remitting a forfeiture of pay operates only on the pay to be- come due subsequent to the date of the order. 953. Notwithstanding a sentence contemplates, payment of a stated sum to a soldier upon his release from confinement, it can not be made unless there is a sufficient balance to his credit after all authorized stoppages are deducted. 954. Every court-martial will keep a complete and accurate record of its proceedings, which will be authenticated in each case by the signatures of the president and judge-advocate, the latter affixing his signature to each day's proceedings. 955. The judge-advocate will transmit the proceedings without delay to the officer having authority to confirm the sentence, who will state at the end of the proceedings in each his decision and orders. 956. The complete proceedings of a garrison or regimental court will be transmitted without delay by the post or regimental commander to department headquarters. 957. When the record of a court exhibits error in preparation, or seemingly erroneous conclusions, the reviewing authority may reconvene the court for a reconsideration of its action, pointing out defects. Should the court concur in the views submitted, it will proceed by amendment to correct its errors, and may modify or completely change its findings. A reopening of the case, by calling or recalling witnesses, is illegal. 1596 958. The employment of a stenographic reporter, under section 1203, Revised Statutes, is authorized for general courts only, and in cases where the convening authority considers 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. 959. 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 tran- scribing 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, steno- graphic reporters may be employed at rates not exceeding 25 cents per folio (one hundred words) for taking and transcribing the notes in short-hand, 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. 960. No person in the military or civil service of the Government can lawfully receive extra compensation for clerical duties performed for a military court. 961. Interpreters to courts-martial are paid by the Pay Department 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. [It Is to be noted that Par. 1019 of the Regulations of 1889, specifying certain punishments as legal for enlisted men, is not repeated in these regulations. See page 400, ante.} CASES AND TRIALS CITED. Page, Ableman v. Booth 691 Aclilson, Capt. — Case of 271 Acton's Case 308, 310 Adams v. Field 372 Adams V. Turrentlne 129, 131 Aiken v. Kilburne 331 Aisquitli, Lieut. W. B5.— Case of 608 Aldridge v. Williams 34 Alexander, Col. C. M. — Case of 520, 524 Alexander, Mrs. See Mrs. Alexander's Cotton. Alfred v. State 219 Allre V. U. fe 668, 670, 869 Allan, Lieut. Col. — Case of 490 Allen In re. See In Re, &c. Allen, Lieut. W. H. C— Case of 882 Allen V. Blunt 323, 324, 879 Allen V. Colby 27, 34, 125, 540 Allen V. Hunter 339 Allen V. V. S 801 Alstaedt v. V. S 407 Ambrister, R. C— Case of 103, 464, 832 Ames V. Duryea 896 Am. Fur Co. v. V. S 869 Anderson Ex parte. See Ex Parte, &c. Anderson v. Dunn 301, 303 Anderson v. State . 220 Andre, Major John— Case of 180, 518, 522, 526, 530, 531, 666, 767, 768, 770, 771 Androscoggin & Kennebec R. R. Co. v. Androscoggin R. R. Co 310 AngeU V. State 673 Anglo-Am., &c. Co. v. Cannon 322, 323 Annis V. People : 350 Anon. (1 Wash. C. C.) 837 Antoine v. Morehead 777 Antrim's Case 27, 34, 95, 100, 105 Apache Scouts— Case of the 580,584,670 Arbuthnot, A.— Case of 103,464,832 Armes, Capt. G. A. — Case of 60 Armistead v. Com 220 Armor v. State 339 Armstrong, Lieut. W. W.— Case of 72, 208, 230 Armstrong, Major A. — Case of 592 Armstrongs. V. S. (13 Wal.) 270,319,467 Armstrong v. V. S. (26 Ot. CI.) 462 Arnold, Gen. B.— Case of 59,73,180,354 Arthur v. V. S 32 Asgill, Capt— Case of 797 Ashbumham, Comet J. — Case of 144 Assassination Conspirators— Trial of 167, 169, 185, 334, 836, 839 Atchison, Capt T. — Case of 577 Atkins *. State 267 Atkinson v. Allen 227 Au V. B. B. Co . 358 Aulger V. People 593 Averill v. Tucker S'^O Ayers In re. See In Re, &c. 440593 O - 42 - 66 1041 1042 CASES AND TRIALS CITED. fage. Babbitt V. V. S 71,87 Babcock, Maj. S. — Case of 228 Bache, Lt. Col.— Case of 169,284,581 Backenstos, Lt. Col. J. B.— Case of 171,305,306 Badean v. U. S 896 Bailey, Col.— Case of.i— , 884 Bailey v. State 295 Bailey v. Trumbull 208 Bally In re. See In Re, &c. Baker In re. See In Be, &c. Baker v. Baker 543 Banbury Peerage Case 316 Bangs V. Little 444 BanTf of U. S. v. Tyler 130 Bank of Utlca v. Mersereau . 331 Bank v. Hart 594 Bankhead v. V. S 382,383,644 Barclay v. Goodale ^ 870 Barger v. V. S , 407,652 Barker v. People .. 398,408 Barlow v. State 208, 228 Barnes v. U. S ^ 753 Barrett v. Crane 53 Barrett v. Hopkins 52, 91, 424, 721 Barron, Capt. Jas.— Case of 192,278,347,39^,458,510 Barron v. Mayor 165 Barth, C. H.— Case of - lOl Barton v. Fulton 878 Barwis v. Keppel 20, 41, 884 Batchelder v. Moore 302 Bates V. Barber 350 Bates V. Clark 869, 886, 887, 888 Baton V. State 290 Bazalne, Marshal— Case of 73,167,191,351,443 Beale v. Thompson 357 Beall, J. Y.— Case of , 167,767,769,784 Bean v. Beckwlth 886 Beard v. Burts 830 Beasley v. U. S 775 Beatson v. Skene 330,883 Beaver v. Taylor 325 Beck V. Ingram 794 Beckwlth v. Bean 733,830 Belding v. State , 851 Bell V. Brewster 372 BeU V. Com 252 Bell V. L. & N. R. K. Co 889 Bell V. State 229 Bell V. Tooley 882 Benedict Esc parte. See Ex Parte, &c. Benner v. Porter 900 Bennett v. U. S 754 Berry, S. O.— Case of 784 Beswick In re: See In Re, Sec. Beverly's Case 292 Blassee, C. M. — Case of 784 Blckham v. Pissant 210 Biggers Ex parte. See Ex Parte, &c. Biggs V. People 133 Billings V. U. S 427 Bingham v. Peters 369 Binney, Capt. Amos — Case of 195 Binns v. State 326 Bird In re. See In Re, &c. Black V. State 212 Blagg V. Phoenix Ins. Co 234 CASES AND TRIALS CITED. 1043 Page. Blair V. State 219,229 Blake, Lieut. K.— Case of 882,883 Blake v. V. S 742,744,745 Blount V. State 325 Blue V. Com 131 Boardtnan v. Wood 221 Boa*d of Comrs. v. Mertz 548 Bogart In re. See In Re, &c. Bogle V. Hammons 358 BoUman Ea; parte. See Bx Parte, &c. Bolton V. Liverpool 331 Bomgardner v. Andrews 340 Boody V. V. S 26,27,33 Boon V. State 211 Booth V. Woodbury 540 Borland v. Walrath 371 Boughton V. Jackson 882 Bounty, Mutiny of the — Case of 580 Bovard v. State ,_ 294 Bovy, Sir Ralph — Case of 134 Bowles V. Lewis 775, 889 Bowman v. Sanborn 369 Brackett v. McCarty 408 Bradley v. State 295 Brady v. Malone 243 Bragg V. Colwell 372 Brannen v. V. S 501 Branner v. Felkner 557,774,781,889 Bratton v. Seymour 137 Breitenbach i;. Bush 547 Brennan v. People.^ 266, 268 Brereton, Lt. Col. F.— Case of 726,894 Brewing Asstn. v. Hutmacher 323 Briggs V. Byrd ^ 226,230 Briggs V. Cramer 130 Briggs V. U. S 810 Brlgham v. Peters 369 Bright Ex parte. See Ex Parte, &c. Briscoe, Brig. Gen. J. C— Case of 409, 728 Bristol Riots— Case of 726, 894 Brittain v. Allen 224 Brltton, Pvt. John — Case of 679 Britton v. Butler _ 777 BrOadhead v. V. S 880 Broadway, J. A. — Case of 784 Broadway v. Rhem 889 Brooks V. Adams 50 Brooks V. Daniels 50 Brooks V. Davis 207 Broughton, Lt. Col. C. D.— Case of 445,765 Brown, Capt. C. B.— Case of 567 Brown, Capt. John — Case of 568 Brown v. Com 339 Brown v. Hiatt 777,789,801 Brown v. Schock 313 Brown tt. State 262 Brown v. W^dsworth 53, 54 Browne, Maj. John — Case of 196 Brudenell v. Vaux .— 403 Bryan v. Forsyth 363 Bryan v. Walker 775,889 Buchanan v. Alexander 890 Buell, Brig. Gen. D. C— Case of 519, 529, 532 Buell, Lieut. D. C— Case of 216 Bunnell v. Butler 350 1044 CASES Ain) TRIALS CUCBD. Page. Burchard v. V. S 409 Burdett, Capt J.— Case of 591 Burdett v. Abbott 116, 588, 877 Burgoyne, Gen. — Case of 92,153 Burk V. State 219 Burke, Capt. U.— Case of 311 Burke v. Miltenberger 319, 803 Burke v. Tregre 803 Burns v. People 259,263 Bums V. U. S -. 890 Burr, Aaron— Trial of 192,212,218,221,225,226,346 Burris v. Wise 233 Burrisb, Capt. Geo. — Case of 77 Burroughs v. Peyton , 87, 88 Butler, Col. Thos. — Case of 575 Butler V. State 138 Butterick v. Allen 361 Byng, Adml. John— Case of 285, 419, 623 Byrne, Ast. Surg. B. M.— Case of 520, 524, 529 Byrne v: U. S 32 Byrnes v. U. S 71 Cadwalader, Gen. — Case of duel with Conroy 591 Cady V. State 328 Caldwell v. Harding 777 Calkins v. State 372 Callanan v. Shaw ^ 360 Callender's Case 221 California Vig. Com. — Case of 864 Camp V. V. S 32 Campbell v. Biauke 243 Campbell v. People 140 Campbell v. State 327 Canada v. Curry 359 Canadian Rebels— Trial of 184 Canby Gen. — Case of assassination of 786 Cancemi v. People , 219 Cargen v. People 219 Oarlln v. State ; 588 Carpenter v. U. S 885 Carr, Col. E. A. — ^Inquiry on application of 520 Carr, Col. E. A. — ^Mutiny of scouts of command of 584 Carr In re. See In Re, &c. Carr v. Gale 324 Carter v. Hall 890 Cashell, H. B.— Case of 635 Castex, Gen. — Case of 566 Cathcart v. Com 350 Chamberlayne, Capt. S. B. — Case of 567 Chambers, Col. Talbot— Case of 52,154,445.619 Chambers v. Jennings., 46, 50 Chambersburg, Pa. — Case of burning of_^ 782 Chance v. R. R. Co 372 Chandler v. Le Barron 372 Chapman In re. See In Re, &c. Chapman v. Herrold 366 Chappel 17. State 220 Charles v. State 688 Chase v. People 294 Cheirac v. Relnicker 331 Chicago, &c., R. R. Co. v. Adler 3,38 Chllds V. State 588 Chotean v. Raltt 324 Christian Co. Ct. v. Rankin 576,780,889 Christy Ex parte. See Ex Parte, &c. CASES AND TRIALS CrTED. 1045 Page. Church V. Hubbart 361, 363 Ohnrchill v. Churchill 225 Cintra Convention — Inquiry of 522, 525, 528, 530 Claasen In re. See In Re, &c. Clapp v. Peck 340 Clark Jerome — Case of 784 Clark i;. Cummins 649 Clark V. Dick 27, 39, 801, 806, 820 Clark 1?. Martin 547 Clark V. Mitchell 775 Clark V. State ■... 336 Clark V. Van Vracken 207, 210, 230 Clarke Elijah— Case of 766 Clay V. State 899 Clay V. U. S 649, 887 Clerc, Sgt Petei^-Case of 344 Clifford V. State 144 Cloutman v. Tunison ^ 637 Cobb, Lieut J. D.— Case of 66,449 Cobbett V. Kilminster 371 Cobbett, Wm.^-Case of 883 Cochran v. Tucker : 816, 889 Cochran ■». U. S 316 Coffin V. Jenkins 637 Coffin V. Wllbour 232, 508 Cofflm V. U. S 316 Coleman, Capt. C. D.— Case of 62 Coleman i;. Tennessee 50, 81, 108, 265, 418, 667, 671, 800, 801, 834 CoUava, Col.— Case of 822 CoUedge's Case 308 ColUngs 1?. Hope 42 Collins V. Com ; 328 ColUns V. U. S 71, 747 Columbia, So. Ca. — Case of burning of 782 Commonwealth v. Abbott 220 Commonwealth v. Austin . 220 Compionwealth v. Barker 88, 539, 542, 543, 545 Commonwealth v. Barney 681 Commonwealth v. Battis . 276 Commonwealth v. Beale 678 Commonwealth v. Blodgett 82, 887 Commonwealth v. Boott_! 596 Commonwealth v. Braley 238 Commonwealth v. Burke 678 Commonwealth v. Bussler 741 Commonwealth v. Buzzell 220, 221 Commonwealth v. Callan 543 Commonwealth v. Camac 543, 544 Commonwealth v. Carey 316 Commonwealth v. Casey ^- 326 Commonwealth v. Chambre 403 Commonwealth v. Chapman 251 Commonwealth v. Churchill . 349 Commonwealth v. Clary ' —- °9o Commonwealths. CUfford o<3, 680 Commonwealth v. Costley 316 Commonwealth v. Crozier — 295 Commonwealth v. Curtis ■^"**» ^™ Commonwealth v. Cashing 538 Commonwealth v. Daley *°J Commonwealth v. Dolland °°^ Commonwealth v. Downes 543 Commonwealth v. Drum 316 Commonwealth v. Duane °^^ Commonwealth v. Dunham ^5 Commonwealth v. Eastman 252 1046 CASES AlTD TBIALS CITED. Page. Commonwealth v. French 293 Commonwealth v. Gamble 74, 98, 542, 544, 551 Commonwealth v. Goddard ^ 269 Commonwealth v. Goodenough ._ 261 Commonwealth i;. Haggarty . 270, 469, 470 Commonwealth v. Hanlon ^____-_i.» 328 Commonwealth v. Harrison 643 Commonwealth V. Hart 593, 594, 595 Commonwealth v. Haskell 295 Commonwealth v. Hathaway 238 Commonwealth v. Hatton ; 261 Commonwealth v. Hawkins ., 292 Commonwealth u. Hawkins and Streator „ 298,892 Commonwealth v. Hayes 704 Commonwealth v. Hersey ^ 285 Commonwealth D. Hill, (14 Mass.) u 238 Commonwealth v. Hill, (4 Allen) 212, 227 Commonwealth v. Holland , 679 Commonwealth u Hooper 592, 593, 595 Commonwealth v. Hmit 343 Commonwealth v. Irish 96 Commonwealth v. Joliffe . 228, 229 Commonwealth v. Jones 408 Commonwealth v. Levy 593, 594, 595 Commonwealth v. Llvermore 229 Commonwealth v. Loud 262 Commonwealth v. Manson 145 Commonwealth V. Maxwell 142 Commonwealth v. McMillan 219 Commonwealth v. Merrill 678 Commonwealth v. Moore 238 Commonwealth V. Morey -i 328 Commonwealth ■». Morris 542 Commonwealth v. Mosler --^: 294 Commonwealth V. Myers, (160 Mass.) 328 Commonwealth 17. Myers, (1 Va. Gas.) ^ 267 Commonwealth v. Newell 676 Commonwealth V. Olds 261, 263, 269 Commonwealth v. O'Malley 704 Commonwealth v. Palmer 575, 820 Commonwealths. Pope 598, 584 Commonwealth v. Koby 259, 261, 266 Commonwealth v. Rogers 294,340 Commonwealths. Rowan 693, 585 Commonwealth v. Scott 247 Commonwealth v. Shaw, (4 Cush.) 846 Commonwealths. Shaw, (4 Allen) 686 Commonwealth v. Simmons 588 Commonwealths. Simpson 704 Commonwealth s. Smith , 262 Commonwealth s. Snelling , 680 Commonwealth s. Squire 266 Commonwealths. Stearns 704 Commonwealths. Stephenson 682 Commonwealth s. Tarbox 141 Commonwealth s. Taylor . 328 Commonwealth s. Tibbs 593 Commonwealth V. Tuck 247 Commonwealths. Tuckerman 705, 706 Commonwealth s. Tyree 238 Commonwealth s. Webster 143, 316, 369, 370, 402, 672, 673, 674 Commonwealth v. Wright 140 Commonwealths. York 673 Commonwealth s. Young 898 Compton, Col. C. B. — Case of 60 Comyn v. Sabine 439,885 CASES AND TRIALS CITED. 1047 Page. Cone V. V. S 777 Confederate States v. Scully I III__ 100 Connecticut Line— Case of Mutiny In I 584 Cenrad v. Griffey 348 Conroy, Thos. — Case of ^ I__ ~ 691 Contested Election of Brig. Gen I~ 49,51 Cooke, Capt. P. S. — Case of I 520 Cooke V. Maxwell .' 885 Cooker v. The Tolacca I I 340 Coolidge V. Guthrie 810, 889 Ooon V. People 341 Cooper In re. See In Be, &c. Cooper V. Bockett , , 370,371 Coppell V. Hall I_Z 776, 778 Corbett In re. See In Be, &c. Cornett v. Williams ^ 32a Cosenow In re. See In Be, &c. Cotton V. State 219 Counselman v. Hitchcock 346 Gonnty of Cherry v. Thacher 899 Cowan V. Beall 371 Oowell V. Hopkinton 38,574 Oox V. Gee , 118,545 Cozsen v. Dolland 878 Crafts, W. G.— Case of 101 Craig V. Brown 363 Crenshaw v. U. S 33, 738, 745 Crittenden, Cadet — Case of 279 Crittenden, Major J. B. — Case of 60 Crittenden v. Strother 331 Crogan's Case 837 Cross, Major O. — Case of 60 Cross V. Harrison 800, 801, 802, 806, 807 Cross V. People 369 Crow V. State 302 Crow Dog Ex parte. See Ex Parte, &c. Crowell V. Crispin 889 Curtis V. Allegheny Co 867 Cnshlng, Col. T. H.— Case of 77, 222 Cutner v. U. S 777 Cuyler v. Terrill 319 Dains V. State 688 Dalzell, Surg. J.— Case of 568 Daniel *. Hutcheson 801, 851, 853, 857 Davany v. Coon 192 Davies v. McKeefy , 270 Davis, S. B.— Case of 767 Davis V. Forrest 347 Davis V. Hunter^ 220 Davison In re. See In Be, &c. Dawkins v. Paulet - 330, 367, 882, 883 Dawkins v. Prince Edward ■ 883 Dawkins v. Rokeby 330, 367, 533, 882, 883 Dawson, Lieut. — Case of 572 Day V. Gelston 243 Dean of St. Asaph's Case 309 Debbiegg, Col. Hugh— Case of 77, 415, 416, 568 Decatur v. V. S 557, 781 Deiap's Case 126, 520. 602 Dennis v. Van Voy 344 De Puy In re. See In Be, &c. Derr v. Lubey °^ Desmare v. U. S onV~Qoi aai Desoan v. Olney 297, 821, 887 DevUn, Lieut. J. S.— Case of 75, 174, 188, 748, 836 1048 CASES AND TRIALS CITED. Fage. DeTlln, Pvt Jas.— Case of 645, 653 Devlin v. U. S 830 Dew In re. See In Re, &c. Dickenson v. Gore 360 Dickson v. Earl of Combermere 888 Dickson V. Earl of Wilton 330, 367, 883 Dillon, Lient. A., &c. — Case of 597 Dills '..-. Hatcher 774, 889 Dinsman v. Wilkes 296, 573. 884 Disinger, In re. See In Re, &c. Dobbins v. Comrs 897 Dockum V. Robinson 764 Dodd, H. H., &&— Case of 176,374,393 Doe 17. Hodgson 324 Doe V. Suckermore 369, 370, 371 Dohrendorf In re. See In Re, &c. Dominick v. State ^ 269 Done V. People 398 Donnell v. Jones 342 Douglass V. State , 276 Douglass V. Tousey 349 Douglass V. Wickwise . 268' Dow V. Johnson 691, 776, 777, 780, 789, 799, 801, 810, 877, 889 Downing, Capt. S. W.— Case of ^ 176, 749 Downing, Pvt. S. W.— Case of €i5, 653 Doyle In re. See In Re, &c. Doyle V. Armstrong 889 Draft, Cases of resistance to in Pa 839 Drane, Capt A.— Case of 77,207 Drehman v. Stifel 775, 889 Dreyfuss, Capt. A. — Case of 408 Druecker v. Salomon 879,880 Dubarry, Surg. E. L.— Case of 742,752 Dnbosv. U. S 815,816 Duckett, Ensign J. F. — Case of 144 Duffleld V. Smith 96,276,881 Dugan In re. See In Re, &c. Dukes 17. State 252 Dunbar Ex parte. See Ex parte, &c. Duncan, J. W. — Case of 792 Duncan v. Com 267, 588 Dunlop, Lieut — Case of ; 767,768 Dunn T7. State 268 Durand v. Hollins 879 Durell 17. Mosher 2l&,227 Durham 17. People 263, 268 D'Utassy, Col. P. G.— Case of 714 Dutton 17. Woodman 3^ Dwinell 17. Larrabee 324 Dyer, Brig. Gen. A. B.— Case of 85, 167, 286, 364, 519, 524, 525, 527 Dynes v. Hoover 47, 49, 50, 54, 383, 422, 464, 644, 725, 882 Dyson, Capt S. T.— Case of 381,622 Dyson v. State 515 Eari of Shaftesbury's Case 309 Eberhart v. State 286 Eddy, Lt Col. A. R.— Case of 520 Edwards v. Elliott 165 Edwards v. State.i 515 Bgan In re. See In Re, l&c. Bifort 17. Bevins 575,887 Ela 17. Smith 887 Eliot 17. Van Voorst 898 Bllicott 17. Pearl 348 Blston V. Eennicott . 338 OASES AUD TRIALS CITED. 1049 „ Page. Emerson v. Flsk 324 Emerson v. Slater "ZIIZZIIZZ" ~ I_ 368 Bnos, Lt. Col. — Case of IZllZl^Z I_ 59,180 Ersklne 1?. Davis ~~~ ' 137 Esmond In re. See In Be, &c. Etheridge, Emerson— Case of 287 Evans v. George IIIIII_II_ZI 376 Evans v. Hettich ZZZZ_Z Z_ZZZ 335 Evanston v. Gunn , Z_Z 363 Ex Parte Anderson ZZZZ 538 551 Eai Parte Benedict ' §29 Ex Parte Biggers Z Z Z_ZZ 47 Ex Parte BoVtinaa _ ZZ" 828 B» Porte Bright 49, 51, 54,1^3, 834 Ex Parte Grow Dog 869, 874 Ex Parte Dunbar __^_ 51 SiP Porte Field , Z_ZZZZ_ 828 Ex Parte Garland.^ 269,. 4(85, 467, 750 Ex Parte Harlan ^ 878 Ex Parte Hedley .__, ,_ 704 Ex Parte Henderson . 105, 106 Ex Parte Hennen ^ , 742 Ex Parte Hurst ,_. 889 £« Porte Lockliart „ 470 £;« Parte Mason , 47,48, 52, 94, 146, 395, 398, 422, 424, 543, 690, 697, 721, 724, 733 BiT Parte McRoberts 91, 94, 105, 691, 695, 877 Ex Parte Merryman , 105, 82§ Ex Parte Mlliigan : 16, 47, 50, 51, 81, 104, 105, 766, 799, 800, 801, 817, 818, 830, 836, 881 Ex Parte Parks 52 Ex Parte Randolph 4S9 £'« Parte Reed 32, 46, 47, 51, 52, 54, lOl, 454 Ex Parte Reeside 879 Ex Parte Reynolds 874 ^« Parte Robinson, (6 McLean) 94 .BiP Porte Robinson, (19 Wallace) 301, 302, 303, 307 Ex Parte Schmeid - 546 Ex Parte ShafEenburg 698 Ex Parte Sloan 899 Ex, Parte Smith 301 Ex Parte Tarble. ( See Tarble's Case. ) Ex Parte Thompson 764 A'a; Porte ValUndigham 49, 51, 834 Bar Porte Van Vranken 98,101,422 Ex Parte Warren . 851 Ex Parte Watkins. (3 Peters. ) 50 Ex Parte Watkins. (7 Peters. ) --. ^ 165 Bar Porte WeUs 269, 270, 469, 470, 471 Ex Parte Wildman 106 Ex Parte Wilson 16 Ex rel. Standing Bear and others 870 Fahnestock v. State 219 Fairchild vl Case 131 Fairfax, Cadet— Case of 579 Fairman v. Ives 883 Fanshawe v. Tracy 31fl. 312 Farmer v. Lewis 774 Farr v. McDowell 245 Fenwick v. Gibbs ■ 878 Ferrell v. State ■. 293 Ferren's Case 546 Ferrens In re. See In Re, &c. Fetter In re. See In Re, &c. Field Ex parte. See Ex Parte, &c. 1050 CASES AND TKIALS CITED. Page. Fight 17. State 374,393 Flndley v. Bk. of U. S 368 First Mich. Cavy. — Case of deserters from 643 Fisher v. McGlrr 882 Fisher v. State 683, 684 Fisher v. The City 230 Fitch n. Bogue 323 Fltchburg v. Lunenburg 640 Fltchet, Hannah— Case of 99 FlaveH's Case 270,470 Fleming, Lieut W. W.— Case of 638 Fleming V. Page 800, 802, 806, 807 Fletcher v. State, (6 Hump.) , 229 Fletcher v. State. (7 Eng.) 277 Fletcher 17. V. S 54,462,715,746 Floyd, Acceptances, The 43 Flynn, Pvt— Case of 602, 605 Foley V. People 349 Ford V. Surget 775, 776, 789, 889 Fort Leavenworth R. R. Co. v. Lowe 898 Fort Morgan — Case of surrender of 524 Fort Pillow— Case of kllUng at 779 Foster, Capt— Case of 832,837 Foster v. McKay 323 Foster v. State 264,269 Fottrell 17. German 630 Fowke, Ma]. Gen. — Case of 737 Fox 17. Hazelton 208 Foxcroft 17. Nagle 777 Frallch 17. The People 336 Francisco 17. State 143 Franco 17. State 684 Frank 17. State 329 Franklin 17. Tallmadge 137 Frederick v. State 328 Freeland v. Howell 243 Freeland 17. Williams 777,889 Freeman 17. People 217,238 Freer v. Marshall 54 882,885 Fremont, Lt. Col. J. C— Case of 77,167,287,314,344,443,510,578 Frlery 17. People 293 Frlth's Case : 238 Frye 17. Ogle 877, 881 Fugitive Slave Law Gases 49 Fuller 17. Rice 354 Fulton 17. Hood 369,371 Furguson, C. — Case of 784 Furman v. Nlehol 319 Gage 17. Shelton 682 Gaines, MaJ. Gen. E. P.— Case of 60, 73, 77, 80, 112, 386, 518 Gaines 17. Stiles 403 Gaines v. Thompson 879 Gallagher 17. State 328 Gamage, Lieut. — Case of 298 Gambler, Capt.-jCase of . 885 Games 17. Stiles" 137 Gannon 17. Stevens 341 Gardner, Col. Robt. — Case of 40P Gardner 17. Anderson 330,883 Garland Ea; parte. See Eo) Parte, &c. Gartslde Coal Co. v. Maxwell ^ , 354 Gassaway, Lieut. John — Case of 138 Gates, Ma]. Gen. — Case of duel with Col. Wilklns 591 Gates V. Goodloe 780,801,810,811 CASES AND TRIALS CITED. 1051 Page. Grates V. Johnson Go 851 Gates V. People ' I__IIIIIIII 229 Gates V. Thatcher "_IIII I II 33, 35 Gaylord, Lud— Case of III 584,587 Gee, Maj. J. H.— Oase of 792 Creorge v. Surrey 369 Georgia v. Stanton 851 Gibbon's Case ^ 684 Gibbons v. IT. S 885 Gibson, Col. A. A.— Case of 520 Gidley v. Lord Palmerston 878 Ginesple V. State 208,228 Glynn v. Houston 885 Gon-Shay-ee, Petitioner ^ 874 Gooch V. U. S 631 Goodale, Maj. Gen. B.— Case of ^ 409,410 Goodhue v. Bartlett _-_^ 369 Goodln V. State 236 Goodman v. State 242 Goodtitle v. Braham : 370,371 Goodwin v. Blachley 220 Goodwin v. State 328 Gordon Capt. — Case of 415 Gordon, Brig. Gen. G. H.— Case of 60 Gordon, Geo. W.— Case of 629,835,836 Gormley v. Bunyan 254 Gotcheus V. Matthewson 647 Gould V. SafEord 764 Gould V. U. S 407 Graham, Col. — Case of 59 Graham In re. See In Re, &c. Graham v. Com 897 Graham v. State, (40 Ala.) 506 Graham V. State, (29 Texas Ap.) 350 Grant v. Chambers 852 Grant v. Gould 47,52,53,89,313,314,382,439,655 Grant v. Shard 884 Grapeshot, The 803 Gratiot, Gen. Chas.— Case of 738 Gratiot v. V. S 32 Gregg In re. See In Re, &c. Gregg V. Forsyth 363 Green, Ast. Surg. C. L. — Case of 575 Green, Charles, &c. — Case of 1 854 Green v. State 144 Greenfield v. People 219, 220 Greenwich Ins. Co. v. Waterman 43 Greenwood v. State 264 Grenfel, G. St L., &e.— Case of 839 Griffln *. State ! 229 Gilffln V. Wilcox 105,801,817,829,886,887 Griffith V. U. S 317 Grlmley In re. See In, Be, &c. Griner In re. See In Be, &c. Gross V. State 230 Grossmeyer v. V. S 669 Guetlg V. Stale 219 Guitean's Case. (See U. S. v. Guiteau.) Gunter, Ensign T. F.— Case of 144 Gurley, F.— Case of ,. 779 Hacker's Trial 229 Hackett, Cadet J. H.— Case of 346 Haddock, Major J. A.— Case of 461 Hale, Capt. Nathan — Case of 771 1052 CASES Am) TRIALS CITBD. Page. Hall, Capt N. N.— Case of 458 Hall V. Com 218 HaU V. Renfro 358 Halstead v. Manhattan Ry. Co 219 Hamilton v. DlUIn 777, 801, 806, 807 Hamilton v. People 348 Hammond's Case 369 Hammond, Brig. Gen. W. A.— Case of 60, 73, 77, 409 Hammond v. State 679 Handforth, Lieut B. F.— Case ol 238 Handlln v. Wicklifle 802,804 Hanger v. Abbott 777 Hannaford v. Hunn 113 Hanson «. S. Scituate 367, 548, 637,641 Hardage v. CofEman 888 Hardy v. Morrill 339 Harmar, Brig. Gen. J. — Case of 518 Harmon v. U. S 539 Harmony v. MitclieU 775, 776, 887,889 Harper's Perry, Surrender of— Case of 519, 624 Harper v. Kean 229 Harris, B. G.— Case of 286, 409, 631, 633 Harris, Major B. — Case of 409 Hart V. Llndsey 137 Hart V. V. S 366 Hartung v. People > 259 Harvey v. Peadiam 540 Harvey v. U. S 33 Harwood v. Green 883 Haugen 17. Chicago, &&, Ry. Co 219 Hawkins v. Nelson 775 Hawkins v. State 588 Hawley v. Butler 887, 888 Hawley v. Stirling 234 Haycraft v. U. S 810 Hayley v. Grant 234 Hazen, Brig. Gen. W. B.— Case of 60, 73, 77 Head v. Porter 885, 887 Head v. State 325 Hearn In re. See In Re, &c. Heathfleld v. V. S 500 Hedley Ex parte. See Ex Parte, &c. HefEerman v. Porter 800, 801, 803, 804, 889 Heflebower v. U. S 669 Henderson Ex parte. See Ex Parte, &c. Henderson v. Coal Co -. , .594 Henley, Col. David— Case of 153,180,228 Hennen Ex parte. See Ex Parte, &c. Henry v. State 269 Hensey's Cas6 630, 633 Hensley v. Lytle 243 Herbert, Admiral — Case of , 737 Hemdon v. Bradsliaw 226 Herod, Major T. 6. S. — Case of 428 Herold, D. B„ &c.— Case of 185, 839 HIckey v. Huse 637, 649 Hlgglns In re. See In Re, &c. Higgins V. P^ple 677 Highsmith v. TTssery T7 Hill V. Clark 234 Hill V. Crandall 304, 309 Hill V. State (43 Ala.) 661 Hill 17. State (17 Wis.) 338 Hill®, Territory 87,896 Hoiare v. AUen 777 CASES AST) TRIALS GITBD. 1053 Page. Hobbs V. U. S 880 Hobson V. State 661 HofEman v. Coster 465 Hog, Lt. Col. A.— Case of 116, 589 Hogan V. Burleson 234 Hogg, T. E., &c.— Case of 784, 837, 839 Hogue V. Penn 774, 889 Holbrow V. Cotton 545, 882 Holcroft's Case 266 Holland v. State 672, 673 Holmes, Cadet— Case of 579 Holmes, Pvt. C. B.— Case of 651 Holmes v. Sheridan 774, 887, 888, 889 Holt V. Holt 647 Holt V. People 212 Home, Col.— Case of— 522 Home V. Beutlnck 330, 367, 533, 881, 883 Hopkins v. Meggulre 369 Hopkins v. Simmons 369 Hopkinson v. People 688 Hopper 17. Field__: 330 Hopps V. People 294 Hopt V. Utah 325, 328 Horn V. Lockhart 840 Hornbuekle v. Toombs 900 Hough V. Hoodless— ^ , 889 Houghton V. Jones 343 Houston, Gen. S. — Case of 94 Houston V. Moore 95, 96 Houston V. State 685 Howard, Brig. Gen. O. O.— Case of 206, 519, 522, 524, 526, 527 Howard v. State .. 264 Howe, Capt. M. S.— Case of 93, 94, 240, 245, 256, 445, 485, 697, 749 Howe, Capt. Thos. — Case of 166 Hoyie V. V. S 880 Hoyt V. People 293 Hozier, Miss — Case . of 768 Hualpai Indians — Inquiry as to 520 Hubbard v. Hubbard 764 Huber v. ReUy ^ 647 Huchberger v. Ins. Co 860 Hudgihs V. State 220 Huff V. Odom 557, 774 Hughes V. Oaks . 32, 35 Hull, Brig. Gen. W.— Case of 60, 73, 77, 80 112, 139, 164, 166, 175, 177, 184, 185, 276, 62.2, 6B9 Hull, Capt. Isaac — Case of 415 Hunt V. Richards 896 Hunt 17. Rousmanler 368 Hunter v. Fairfax 234 Hurd 17. People 193 Hurd 17. State : 348 Hurst Ex parte. See Ex Parte, &c. Hurt 17. State 266 Hurtt, Capt. F. W.— Case of 162, 284 Hutchingsi7. Van Bokkelen 126,642,649 Hutchlns, Mrs. Sarah— Case of ■- 825,846 Hutton 17. Blaine 515. 882 Hyder, Lieut. W. A.— Case of 166,286,299,344,349 lams' Case. See Com. 17. Hawkins & Streator. We 17. U. S 462,575 Indiana v. ToUeston Club 277 In Matter of. See In Be. In Re AUen 426 1054 CASES AND TRIALS CITED. Page. In Re Ayers 885 In Re Baker 551 In ReBaily 74 In Re Beswlck 539, 540, 543, 544, 551 In Re Bird 91, 258 In Re Bogart 47, 53, 54, 85, 101, 106, 107 In Re Carr In Re Chapman— In Re Claasen In Re Cooper In Re Corbett In Re Cosenow In Re Davison In Re De Puy In Re Dew In Re Dislnger In Re Dohrendorf . In Re Doyle In Re Dugan In Re Bgan In Re Esmond In Re Ferrens In Re Fetter In Re Graham In Re Gregg InReGrlmlej In Re Griner 869, 870, 871, 888 551 16 301,303,307 53 542, 545, 551 51, 53, 85, 254, 256, 360, 542, 545, 551 470 91, 544 539,540,542,543,544,546 545, 551 74 828 820, 821, 831, 834 - 48, 51, 53, 94, 422, 447, 448, 721, 724 34 721 545 543, 544 51, 52, 53, 536, 539, 544, 545, 551, 638 27,33 In Re Hearn 551 In Re Higgins 543 In Re Kaufman 551 In Re Kaulbach 1035 In Re Kemmler 399 In Re Kemp L 104, 105, 817, 829, 886 In Re Kerrigan 301, 304 /n Be Kimball 538,543,544 /» jRe Mackenzie 235 /n Be Mansergh 52,882 In Re Martin 47, 86, 105, 118, 769, 770, 821, 834, 837 In Re Mason , 330 In Re McDonald . 543, 544 In Re McLave 543 InReMcVey 53,54 /n fie Morrlssey 542,551 In Re MuUee 303, 312 /wJJe Murphy 829,836 In Re Neagle 26, 39, 298 In Re O'Connor 94, 695, 898 In Re OUver^ 34, 829 InReFoe 52,716,738,882 In Re m\ey 539,540,542,543 In Re Robb 890 /n Be Ross 538 In Re Smith 27, 32 In Re Spangler 27, 33, 39 In Re Spencer 51, 545, 651 In Re Stacy 104, 105, 629, 630, 767 In Re Stevens 546 InReVou Dleselskie 551 In Re Walker 90 InReWall 94,551 In Re White 53, 85, 254 /n Be Wright 60 In Re Zimmerman 51, 85, 254, 545, 551 Insurance Co. v. Lathrop 339 Irvine v. Bank 218 CASES AND TRIALS CITED. 1055 Fage. Irwin V. U. S 776 Ivers, Lieut. O.— Case of ■ 596 Ivey V. State 593, 595 Jack, Captain, &c., (Modocs) — Case of 786 JackBon v. State 688 Jacob V. Lee 324 Jacques v. Com 225 Jecker v. Montgomery 776 Jeffiers' Case 693 Jeffries v. State 799,800 Jekyll V. Moore 386, 881 Jenkins v. Collard 467 Jervis, Capt. — Case of 112 Jesse V. State 215 Jim V. State . — 245 Johnson, Capt. W. S. — Case .of 60 Johnson, Col. A. S. — Case of 776 Johnson, Thos. — Case of — 700 Johnson v. Daverne 369 .Johnson v. Dodd 538 Johnson v. Duncan 822, 828 Johnson v. Jones ^__ 105, 829, 886 Johnson v. Mcintosh 800 Johnson v. Boot 339 Johnson v. Sayre 16,51,98,102,119,157 Johnson i;. St^te (21 Ind.) 317 .Tohnson 17. State (33 Texas) 851,852 Johnson v. U. S. (2 Ct. Ci.) 890 Johnson v. V. S. (3 McL.) 138 Johnson v. XJ. S. (157 U. S.) 360 Johnston, Lt. Col. G. — Case of 162,580 Johnston v. Com 302 Jolliffe, Surg. B.— Case of 152 Jones, Col. B. — Case of 62, 416 Jones, Comr. T. A. C. — Case of ^ I.53 Jones V. Johnson 317,888 Jones V. Seward 104, 105, 630, 829 Jones 1;. State (2 Blackf.) 211 Jones V. State (57 Miss.) 229 Jones V. Tarlton 323 Jones V. U. S 467 Jordan, Capt. Thos. — Case of 707 Justices V. Plank E. Co , 210,217 Kalloch V. Sup. Ct 693 Kaufman In re. See In Re, &c. Keating, Lt. Col.— Case of 386 Keene v. Meade 137,403 Kees V. Tod 816,818 Keeton v. Com 293 Kelghly v. Bell 576,882,883 Keith *. Lothrop 369,371 Kelley v. People 327 Kelley v. State 293 Kelly, Capt— Case of 223 Kelly V. Crawford 320 Kelly V. U. S 263,326,879 Kelsey v. Hanmer 323 Kemble v. Lull 368 Kemmlei^ In re. See In Re, &c. Kemp In re. See In Re, &c. Kendall v. Stokes 879 Kendall v. U. S 38 Kennedy, B. C— Case of 767, 768, 769, 770, 784 1056 CASES AND TRIALS CITED. Page. Kennon, Lieut. B. — Case of 347, 354, 38©. 727 Kenny v. People , 292 Kerr v. Jones 87, 539 Kerrigan In re. See In Be, &c. Ketchnm v. Buckley 800, 802 Keyes, Lieut. E. L.— Case of 208, 230 Keyes v. V. S 53, 230, 745 Kilmarnock's Case 245 Kimbal v. Taylor 800 Kimball In re. See In Be, &c. Kimmel v. Kimmel 349 King, Col. W.— Case of 152,439,445 King V. Cator 370 King V. Dale , 636 King V. Davison 305, 307 King V. Edmonds 217 King V. Hayes 262 King V. James 1 304 King V. Jones 242 King V. Mlttalberger 342 King 17. Bice 592, 593 King V. Rotherfield Greys 542, 544 King V. Slberil 245 King 1?. Suddi^- 52,733 King V. Weston 688 Kinney v. Flynn 369 KIrby v. State 142 Kitt, Pvt John— Case of 273 Klock V. People 259 Kneedler v. Lane 76,88,95,540 Knight V. Preeport 229 Knights of Pythias' Case 42 Knode V. Williamson , 349 Knote V. V. S 467 Koonce v. Davis 576, 775, 887, 889 Kraus v. R. R. Co 319 Krlse V. Neason 368 Kunkle v. State 688 Kurtz V. Moffitt 647 La Chapelle v. Bubb 873 Lacy 17. Sugarman 777 Lamar v. Browne 557,776,780,781,810 Lamb's Case 822 Lanahan 17. Birge 542, 543, 546 Lane, Lieut. John F. — Case of , 520 Lanergan 17. People 295 Lanfear 17. Mestier 804 Lang 17. Waters 286 Langenbein, C. — Case of . 700 Lansing, S. — Case of 743 Lapeyre 17. U. S 363 Latham 17. Clarke 774 La Vengeance, The 319 Lawrence 17. Baker 338,340 Layer's Case 164 Lear 17. V. S 709 Lebanon v. Heath 313, 317, 533, 888 Lee, Maj. Gen. C— Case of 59,73,180,622,738,796 Lee, Pvt. Joseph — Case of _ 83 Lee 17. Murphy 1468, 470, 471 Lefevre 17. State 328 Lehman 17. McQueen , ~ __ 330 Leitensdorfer 17, Webb 1__ 80oi^802, 803 Leonard 17. Shields 3g4 CASES AND TEIALS CITED. 1057 Page. of Dunn v. Gaines 137,403 Levy V. Burley . 367 Lewis V. Few , 224 Lewis V. McGuire 662, 78ir806, 811, 889 Ley's Case , 238 Lincoln v. Batelle 361 Lincoln ■;;. French , 317 Uppencott, Capt— Case of 667 Litchfield v. The Register, &c 879 Little V. Barreme , 575, 801, 887 Lockhart Ex parte. See Ex Parte, &c. Lockington's Case 27, 32, 39, 795 Lockington v. Smith 27, 35 Lodge V. Phipher 370 Logan V. U; S 329 Lohman v. People 210 Long, Tobe — Case of 784 Long V. State 506 Looker v. Halcomh 100, 105 Loring, Cadet — Case of 579 Loring, Capt. Joseph — Case of 205 Lorton v. State 143 Louallier, Louis — Case of 766, 822, 832 Louden, Robt. — Case of 784 Lowenberg v. People 219 Lucan, Lord — Case of 271 Ludlow, Maj. W. — Inquiry in case of 520, 530 Luther v. Borden 76, 817, 820, 821, 863 Lydecker, Maj. G. T. — Case of 60 Lynch v. Com. 294 Lyon V. Lyman 369, 370, 372 Macbeath v. Haldimand 889 Mack, Lieut. Gen. — Case of 423 Mackenzie, Capt. S. — Case of 63 Mackenzie, Com. A. S.— Case of 176, 380, 585 Mackenzie, In re. See In Re, &c. Mackenzie, Major — Case of 884 Mackenzie v. Hudson 234 Mackey v. State 144 Mackln v. U. S 16 Mackuhin v. Clarkspn 243 Macnamara, Pvt. — Case of 150 Macomber v. Scott 372 Maddux V. U. S 27,29,32 Magie v. Herman 323 Magruder, H. C— Case of 784 Magruder v. U. S 33 Maher v. People 193 Mahon, Lieut. J.— Case of 477 Mahoney v. People 679 Maney, Lieut. J. A.— Case of 60, 94, 674 Mann v. Glover 207, 209, 217, 219, 222, 226 Mann v. Owen 721, 726, 881 Manning, Capt. — Case of 408 Mansergh In re. See In Re, &c. Marbury v. Madison 879 Marks v. Fox 348 Marks v. U. S 869 Marquez v. Frisbie 879 Marrero v. Nunez 234 Marsh v. Hulbert 234 Marston v. Jenness 261,263 Martha v. State 268 440593 0-42-67 1058 CASES AND TRIALS CITED. Page. Martin, Ast. Surg. J.— Case of 144 Martin, Capt. W. P.— Case of ^ 520 Martin In re. See In Re, &c. Martin v. Anderson 234 Martin v. Mott 41, 76, 79, 97, 451, 572 Martindale, Brig. Gen. J. H.— Case of 520, 532 Marvin v. Dutclier 327 Marx V. People 336 Mason Ex parte. See Ex parte, &c. Mason's Case 54 Mason, Sergt. J. A.— CJase of 423,424 Matter of Rhodes 312 Matter of Turner 238 Mattox V. U. S 327 Maurice v. Worden . 330, 368, 884, 892 Maximilian, " Emperor " — Case of 73, 798 Maxwell, Boatswain — Case of 261 MaxweU, Ensign Hugh— Case of 298, 675 May V. State 328 Maye v. Carberry 323, 324 McBlair v. V. S 497, 499, 746, 753 McBryde v. State 138, 320 McCaflerty v. Guyer 647 McCall's Case 25, 27, 33, 34, 76, 87, 88, 95, 546 McCaU V. McDoweU 297, 359, 571, 573, 829, 887, 888 McCarthy, Sergt C— Case of 52 McCarthy v. Lowther 878 McClasky v. Barr 358 McClelland v. Shelby Co 802,852,859 McClelland v. U. S 777 McConkey v. Gaylord 369 McConnell v. Hampton 888 McConologue's Case 551 McCorkle v. State 374,393 McCormick v. Humphrey 818 McCoy V. State (3 Eng.) 688 McCoy V. State (46 Hun.) 594 McCrum v. Corby 359 McDaniel v. State 341 McDonald In re. See In Re. McDougall, Maj. Gen.— Case of 235, 390 McElrath v. U. S 736,738,745,753 McFadden v. Com 209, 229, 270 McGinnis v. Sawyer 368 McGinnis v. State 259 McGrath v. State 683 McGrowther's Case 297 McGuire, Ensign E., &c. — Case of 592 McKeone v. People 335 McKee v. U. S 777, 778 McKenzie, Major— Caae of 884 McKinney v. Nell 348 McKonkey v. Gaylord 369 McLaughlin v. Green 775, 821 McLave In re. See In Re, &c. McLean v. State 285 McNaghten's Case 294 McNaU V. McClure 220 McNamara v. U. S 32 McRae, Tolar, &c. — Trial of 202,253 McRoberts Ex Parte. See Ex parte, &e. McVey In re. See In Re, &c. Meade v. Dpty. Marshal 96,393 Mechs'. & Traders' Bk. v. Union Bk 801, 803 Medway v. U. S 370,372 CASES AND TRIALS CITED. 1059 Page. Mejia, Gen.— Case of 73, 798 Merrltt v. Mayor 325, 889 Merryman Esd Parte. See Ese Parte, &c. Meyer v. Com 316 Mlddlebrook v. State 304 Miles, Col. D. S.— Case of 520 Miles V. Danforth 234 Millar v. State 423 Millar V. V. S „ 777 Miller, Major Samuel — Case of 273 MUler V. Flnkle 394 Miller V. McQuerry 43 MiUer v. People 318 Miller v. U. S ^ 497, 499, 746, 753, 880 Millerd v. Thorn 299 Mllligan, Bowles, &c.— Trial of 223, 253, 289, 839, 840 Milligan, Ex parte. See Ex parte, &c. Mllligan v. Hovey 836, 880, 881, 886, 888 Mills V. Martin 28, 50, 76, 77, 79, 96, 104, 105, 447 Mlltimore, Capt. A. E. — Case of 60 Mimmack v. U. S 407, 652, 753, 754 Minis V. Nelson 42 Miramon, Gen. — Case of 73, 798 Mississippi V. Johnson 851 Mitchell v, Clark 830 Mitchell V. Harmony 576, 775, 810 Mitchell V. Kerr 883 Mitchell V. Tibbetts 898 Mitchell V. U. S 777 Modoc Indians— Case of 786, 834, 837 Monroe v. State (5 Ga.) 224 Monroe V. State (23 Tex.) , 217, 220 Montgomery, Lt. Col. W. R.— Case of 60, 132 Montgomery v. V. S. (5 Ct. CI.) 753 Montgomery v. U. S. (19 Ct. a.) 753, 880 Montgomery v. U. S, (15 Wal.) 777 Moody V. Rowell 341, 342, 343, 369, 370, 372 Mooney v. State 293 Moore v. Bastard 881 Moore v. Cass 226 Moore v. Goelitz 243 Moore v. Houston 51,54,96,276,403,515 Moore v. Illinois 94 Moore V. McCulloch 240 Moore v. U. S 313, 370, 372 Moorhead, Passed Midshpn. J. — Case of 748 Moran v. Com 218 Moran v. Smell 781 Mordaunt, Lieut. Gen. Sir John— Case of 77, 286 Morehead v. State 383 Morgan v. State 688 Moriarty v. Brooks 687 Mormon Church v. U. S 899 Morris v. Whitehead 312, 400 Morrison i;. McDonald 301 Morrison v. Potter ■ 372 Morrison v. U. S 33 Morrissey In re. See In Be, &c. Morrow, Lieut. Col. A. P.— Case of 60 Morton v. State 220 Mosely, J.— Case of ^ 784 Moses V. Mellett 878 Moses V. State 219 Moss, Pvt. B. — Case of 66 Mostyn v. Fabrigas 885 1060 CASES AND TRIALS CITBD. Page. Mount V. State VoV"^™ «I Mrs. Alexander's Cotton t»i. ^^o. »i" Mulkley, J. D.— Case of 784 Mull's Case f*2 MuUan v. V. S 74. 79, 745 MuUee In re. See In Re, &c. Mulllns, Lt CoL— Case of 625 Munden, Admiral — Case of 737 Mundy, Sue— Case of 784 Murphy's Case °^6 Murphy ■». May 348 Murphy «. People 358 Murphy v. Ramsey 899 Murphy ■». State 327 Murphy, William— Case of 784, 839 Murray, Lieut. Gen. Jas — Case of ^ 77, 417 Murrell v. Jones 800, 804 Muscott V. Stubbs 360 Myers v. U. S — 317 Mynatt v. Hubbs 208 Nail V. State 130, 181 Nash V. State 355 National Bk. v. Co. of Yankton 890, 900 Neagle In re. See In Be, &c. Nelson v. Johnson 870 Nelson V. State 245 New Jersey Line — Case of Mutiny in 584,586 Newman v. Wright '34 New Orleans v. The Steamship Co 773, 801, 802, 803 Newton, Lieut. W. A.— Chse of 64,746,747 Newton v. U. S 64, 746 New York Militia — Case of Mutiny in 585 Ney, Marshal— Case of 167, 629 Nichols V. State (2 Halst.) 250,251 Nichols V. State (8 Ohio St.) 293 Nicholson V. Mounsey 888 Nicholson V. State 328 Nix V. Hedden . 319 Nixen V. Hallett 245 Noble V. People 221 Nore, Mutiny at the — Case of 585 Northeot v. State 661 Ouachita Cotton, The. Sec The Ouachita Cotton. O'Brien v. People 219 O'Connor In re. See In Re, &c. O'Connor v. State 225 O'Doherty, Capt T.— Case of 386 O'KeUey v. Latham 400 Oldcastle's Case 297 Olive V. State 219, 220 Oliver In re. See In Re, &c. Oliver V. Bentinck 883 Ohnstead's Case 575, 576, 889 One Hundred and Ninth Ills. Infy. — Case of 518, 520 O'Nein V. State 588 Oregon v. Coleman 94 Opinion of the Justices 471,898 Osbom V. U. S 467 O'Shea v. XJ. S ^ 71 Overman, Maj. L. C. — Case of 60 Owings V. HuU 367 Packard v. Hill 361 Paddock, Lieut. J. V. S. — Case of 60 CASES AND TRIALS CITED. 1061 Page. Page V. V. S 65,461,462 Page V. Homans 3g9 Paige- V. Fazackerly I ~ " ~ 327 Paine, Brig. Gen. E. A. — Case of I _ ~I 60 Painter v. Ives I__I"_ZI 898 Palen v. U.'S I " 753 Pallas, Case of I ~ ~ ~ 343 Palliser, Admiral — Case of ~ "_" '_ 885 Palmer, Lieut. B. — Case of '_- _ 771 Palmer v. Bogan ~~ ~ _~~ 224 Pargoud v.- U. S '_ """" 457 Parham 1?. The Justices Zl 1"~1_ ~ _ 775 Parish 1;. U. S ^ I__IIZII_Z 366 Parker, Richard— Case of II_II_. 419 Parker v. Clive IIII__ZI 105 Parker v. Kaughiuan 86 Parker v. State 242 Parker v. U. S , 39,66 Parkhurst v. Hosford 294 Parks Ex parte. See Ex Parte, &c. Parrish, Col. — Case of 520 Parson's Case .' 292 Patridge's Case 272 Patriotic Bk. v. Frye 338 Payne, Herold, &c. — Case of 185 Pearson v. Yewdall 165 Pelamourges v. Clark 355 Pence v. Christman 243 Pendleton v. U. S 364 Pennsylvania Line, Mutiny in — Case of 580, 584 Pennsylvania, v. Sullivan 677 People V. Abbott 677 People V. Ah Ki 328 People V. Ah Ying 296 People V. Barrett 262, 268 People V. Belencla 293 People V. Bodine 208, 217, 218, 224, 351 People V. Boughton 304, 308, 312 People V. Brotherton 212 Peoples Campbell (40N.Y.) 76,95 People V. Campbell (4 Park. ) 276 People 17. Damon 207 Peoples. Daniell 47, 48 People V. Dohring 174 People V. Doyell 348 Peoples. Duane 896 People V. Durston 399 People V. Eastvi'ood 339 People V. Bckford ^ 253 People V. Ferriss 295 People V. Francis 295 People V. Freshour 347 People V. Fuller 219 People V. Garbutt 292, 350 People V. Gardiner 265, 671 Peoples. Gaul 576, 829 People V. Gehr 219, 220 People V. Gibson 673 People V. Godfrey 898 People V. Goodwin 259 People V. Hammill 2^ People V. Harrington 164 People V. Harris ^^ People V. Hayes ^1° People V. Haynes '^^ 1062 CASES AND TBIALS CITED. Page. People V. Henderson 681 People V. Hennessey 704 People V. Jewett 226 People V. Jim Ti 328 People V. Jones 320 People V. Keith 286 People V. Kemmler 399 People V. King 293 People V. Klein 294 People V. Knapp 327 People V. Lane 898 People V. Lee 443 People V. Lockwood 137 People- w. Mahoney 220 People V. Mather 218,341,342,346 People V. McCrory 277 People V. McGowan 268 People V. McGungill 336 People V. McLeod 575 People V. Methvin 349, 350 People V. Murray 350 People V. Norris 398 People V. Pease 470 People V. Porter 94,133,717 People V. Potter 470 People V. Ramirez 168,329,350 People V. Randolph 677 People V. Rathbun 276 People V. Reyes 210,229 People 17. Reynolds 220 People v.- Robinson 293 People V. Rogers 293 People V. Sanchez 326 People V. Shaber 685 People V. Sheffield 94 People V. Shufeldt 219 People 17. Spooner 369,370 People 17. Stout 212,217,219 People 17. Taylor 133,141 People 17. Thompson 242 People V. Torres 688 People 17. Townsend 724,727 People 17. Van Allen 54, 313 People 17. Vermilyea 224,242 People 17. Vernon 325 People 17. Vice 680 People 17. Wah Lee Mon 219 People 17. Walter 673 People 17. Warner 140 People V. Waynesville 499 People 17. Williams (6 Cal.) 219 People 17. Williams (43 Cal.) 293 People 17. Wilson 242 Perkins v. Hill 446 Perkins 17. Rogers 847 Perkins 17. Stevens 468, 469,471 Perkins 17. U. S 744 Perrln 17. Oliver 238 Peru Coal Co. v. Merrick 241 Pettigrew, W., &c. — Case of 854 Phelan's Case 539, 543 Phillips 17. Hatch 789, 801 Phillips 17. Kingsfield 3.50 Phillips 17. Trull 588 Picton, Maj. Gen. Thos. — Case of 490 Pierce 17. State 215, 220 CASES AND TRIALS CITED. 106S Page. Plgman v. State 293 Pillow, Maj. Gen. G. J.— Case of 323, 352, 519, .527 Finder v. State 673 Planters Bk. v. Union Bk 811 Pleasant v. State '_^ 677, 678 " Plenty Horses " — Case of , 778 Poe In re. See In Re, &c. Pollard V. Baldwin , 296, 574, 888 Pop6 V. Askew J! 369 Porrefs Case 51, 54, 515 Porte V. v. S 801 Porteous, Capt.— Case of 298, 893 Porter, Capt. D.— Case of 72,162,176,205,517 Porter, Maj. Gen. F. J.— Case of 63,73 77, 162, 167, 174, 191, 283, 409, 467, 749, 754 Potts V. U. S 499 Powell, Capt. and others — Case of 883 Powers V. Lockwood 24] Powlett, Capt.— Case of 243 Price V. Poynter 889 Price V. Seeley 588 Price V. State 137 Prince of Wales (Henry V.)— Case. of 306 Prince v. Hazelton 764 Prindeville v. People 383 Prize Cases, The 319, 631, 667, 668, 669, 776, 801 Proctor, Col. Thos. — Case of 151 Protector, The - 68,668,669 Proteus Court of Inquiry 519,524 Purple V. Horton 226 Queen v. Byre 819, 821, 836 Queeti V. Goode 238 Queen v. Hepburn 325 Queen v. Nelson and Brand 819, 821, 835, 836 Quentin, Col. Geo.— Case of 133,153,162,240,271,439 Quincy Whig Co. v. Tillson ~ 246 Qninebaug Bk. v. Leavens 208 Radich v. Hutchins 810 Ragland, Cadet — Case of ^79 Railroad Co. v. Artery |48 Railroad Co. v. Dana °23 Railroad Co. v. Jopes ^74 Railroad Co. v. Munkers 21^ Railroad Co. v. Stelnburg 286 Railroad Co. v. Stimpson o^t Rakes v. People '^26 Raleigh, Sir Walter— Case of 473 Randolph Ex parte. See Ex Parte, &c. Randolph v. Lane |^^ Randolph v. Quidneck Co _ 331 Rasnlck v. Com — — 1^2,144 Rathbun v. Martin 9e Rathbun v. People ^^J Raush V. Ward **^7 Rawson v. Brown ^8 Raymond v. Thomas oct Raymond v. U. S Qqrqiq"q44 ^l Rea V. Missouri ^^'^^^'^ii'iTl Reagan v. U. S 332, 359 Real V. People ^* Reed Ex parte. See Ex Parte, &c. Reed v. Clark f^f Reed v. Reed "'*** 1064 CASES AND TRIALS CITED. Fsge. Reed v. Sharon 540 Reed v. State 219 Reeside Ex parte. See Ex parte, &c. Reglna v. Allen 677 Regina v. Barronet 592 Regina v. Berens . 193, 197 Regina v. Brooks 685 Regina v. Gamplln 678 Regina v. Case 678 Regina v. Creamer 434 Regina V. Cuddy 592 Regina T. England 681 Regina 17. Bntrehman 285 Regina v. Firth 686 Regina 1J. Hill 335 Kegina v. Holden 193 Regina V. Hughes 677 Regina v. Hutchinson ^ 676, 887 Regina v. Jordan 677 Regina v. McLoughlin 687 Regina v. Meany 454, 458 Regina v. Murphy 285 Regina v. Neale 893 Regina v. Phillips 677 Regina v. Rhodes 654 Regina v. Smith 687 Regina v. Stroner 193 Regina v. Thompson 328 Regina v. Thursfleld 197 Regina v. White 686 Regina V. Young 592 Rellly's Case 539, 543 Remer v. Bk. of Col 323 Renn v. Sands 368 Reno, Maj. M. A. — Case of 520 Respubllca v. Carlisle 630 RespubUca v. McCarthy 297, 635, 637 Respubllca v. Roberts 633, 654 Rex V.Alston 683 Rex V. Bailey 684 Rex 17. Bayley i 883 Rex V. Becket 687 Rex 17. Bethel 420 Rex 17. Bingley 679 Rex 17. Bird 683 Rex 17. Carroll 676 Rex 17. Collet 685 Rex 17. Davis 684 Rex 17. D'Eon 241 Rex 17. Dyson _, 238 Rex 17. Edwards 679 Rex 17. Fletcher 678 Rex V. Gardner 888 Rex n Goldstein 140 Rex 17. Gray (1 Bur.) 245 Rex 17. Gray (1 Stra.) 683 Rex 17. Hall 679 Rex 17. Halton 238 Rex 17. Hardy 331 Rex 17. HefEer 251 Rex 17. Home 133 Rex 17. How 141 Rex 17. Jones 238 Rex 17. Kennett 893 Rex 1'. Kitchen 688 Rexi7. Lapier 679 CASES AND TEIALS CITED. 1065 Page. Rex V.Lloyd 678 Rex V. Lyme Regis 136 Rex V. Margetts ^ 682 Rex V. Mercler 237, 238 Rex V. Mlddlehurst , 142 Rex V. Mltton 688 Rex •». Norman 705 Rex V. Oxford , 688 Rex V. Payne 687, 688 Rex V. Perkes 683, 684 Rex V. Phillips (6 East.) - — 598 Rexv. Phillips (1 Stra.) 145 Rex V. Pinney 893 Rex V. Pitman 293 Rex V. Popplewell 141 Rex V. Prltchard 238 Rex V. Robinson 683 Rex V. Rosser 233, 376 Rex V. Sheard 687 Rex V. Sheen 263 Rex V. Stanton 678 Rex V. Steel 238 Rex V. Stocker , 142 Rex i;. Suddis 515 Rex V. Thomas 675 Rex i;. Waite 164 Rex V. Watson 331 Rex V. Williama 594 Rex V. Winkworth 679 Rex V. Withers 687 Rex V. Wood 687 Rex V. Wright 676 Reynolds Ex parte. See Ex Parte, &c. Reynolds v. People 382 Reynolds v. State (1 Kelly) 218 Reynolds v. State (3 Kelly) 247 Reynolds v. U. S 577 Rhea v. State 242 Rhode Island v. Massachusetts 234 Rice V. Chute 889 Rice V. State 228 Richardson v. Orandall 887, 890 Ricketts v. Walker 162 Riggs V. State .297,573,575,887,889 Riley In re. See In Re, &c. Robb In re. See In Re, &c. Robb V. Connolly 551, 890 Robert's Case 544 Roberts, Capt. F. — Case of 52 Roberts v. Allatt 346 Roberts v. Bldridge 585 Robertson, Lt. Col. P. T.— Case of 488 Robertson v. Millar 372 Robinson Ex parte (6 McL.). See Ex Parte, &c. Robinson Ex parte (19 Wal.). See Ex Parte, &c. Rogers, Lieut. D. G. — Case of 149 Rogers v. Custance 324 Rogers v. Ritler 369 Rollins' Case 745 Rollins V. Ames 216 Romero v. U. S 33 Roosevelt v. Gardiner 137 Rosenbaok,.Pvt. C. A. — Case of 692 Ross In re. See In Re, &c. Rossett V. Gardiner 234 1066 CASES AND TRIALS CITED. Fage. Kowell V. Fuller 372 Rnan v. Perry 887 Eubideaux v. ValU6 874 Kimkle, Maj. B. P.— Case of 60,461 Bunkle v. V. S 16, 48, 50, 61, 87, 447, 461, 462, 615, 712, 745, 749, 880 "Ruth" — Case of burning of steamer 520 Hutledge v. Fogg 800,802 SackvlUe, Lord Geo.— Case of 77,89,214 Safeord v. Mercer 889 Saint V. Smith 42 Sam V. State 219,220 Sanchez v. People 218 San Francisco Sav. Union v. Irwin 877 Sartorious v. State 345 Savings Bk. v. Coite 897 Sehmeid, Ex parte. See Ex parte, &c. Schoeffler v. State 215, 225 Schooner v. Patriot 777 Schuitz 17. Moore 234 Schultz V. U. S 339 Schutz V. Jordan 594 Schuyler, Maj. Gen. Philip — Case of 59, 180, 385 Scott-Gaines, Inquiry 518, 525, 527, 530 Scott, Maj. Gen. W.— Case of 519, 527 Scott V. Billgerry 802, 804 Scott V. Com 676 Scott V. V. S 880 Seavey v. Seymour 551 Secretary of Interior v. McGarrahan 879 Sellards v. Zomes 775 Sellers v. State 208 Sepoy Mutiny — Case of 587 Severance v. Healy 647 Shackford v. Nevifington 878 ShafEenberg Ex parte. See Ex Parte, &c. Shalon, Pvt. — Case of 305 Shanks, Thomas — Case of 770 Shannahan v. Com 293 Sharon v. Hill 898 Shaw, Capt. J.— Case of 364 Shaw V. Carlile 802 Sheets v. Selden 403 Sheffield v. Otis 540 Sheldon, Col. Ellsha — Case of 557 Shellabarger v. Nafus 358- Sherburne v. U. S 428 Shoemaker v. Nesbit 276, 881 Shook V. Thomas 241 Shorter v. Cobb 802,847 Shufflin V. People 342 Sibley V. Ins. Co 359 Sifford — Case of 298 Slmco V. State 263 Simpson v. State 588 Sinks V. Reese 898 Sioux Indians — Case of 838 Skeen v. Monkheimer 829, 836, 886, 887 Skinner v. White 131 Slade V. Minor 515 Slatterly v. State 676 Sleeper v. Van Middlesworth 317 Sloan Ex parte. See Ex Parte, &c. Smith, Col. J. L.— Case of 111 Smith, Ex parte. See Ex Parte, &c. Smith, Joshua Hett— Case of 102, 767, 832 CASES AND TRIALS CITED. 1067 Page. Smith, Rev. John— Case of 184,835 Smith V. Brazelton 775 Smith V. Hart 131 Smith V. Shaw 104, 105, 127, 766, 769, 770, 886, 888 Smith 17. State 592 Smith V. V. S. (2 Ct. CI.) 753 Smith V. U. S. (24 Ct. CI. ) 32, 339 Smith V. U. S. (5 Peters) , 364 Smith V. Whitney 51, 53, 454, 712 Smith V. Young 324 Smlthson, W. T.— Case of 635 Snell V. Faussatt 805 "Somers," Mutiny on the — Case of 585 So. Exp. Co. 17. Thornton 369 Southey i7. Nash 285 Spangler In re. See In Be, &c. Spears, Brig. Gen. J. G.— Case of 738 ^)ears v. Forrest 349 Spencer In re. See In Be, &c. Spencer, Mldshpn. Philip— Case of 586 Sprouse i7. Com 211 Stacey, Samuel — Case of 767 Stacy In re. See In Be, &c. Stacy 17. Portland Pub. Co 330 Stafford v. Mercer 775 Stanley v. Schwalby 887 Stanley, Lieut. F.— Case of .. — 222,223,229,274 State 17. Abbott 141 State 17. Allen 369 State 17. Anderson 688 State 17. Andrews 260 State 17. Avery 661 State 17. Balcer 219 State 17. Baldwin 252 State 17. Barnes 269 State 17. Bell 293 State 17. Benham 263 State 17. Benton 210,212,219,226,228 Statei7.Bill 220 State 17. Birmingham 263 State 17. Boon 682 State 17. Brantley 358 State 17. Brearly , 543, 544 State 17. Briley 676 State 17. Brown 84 State 17. Buchanan 247 State 17. Burke 251 State 17. Cameron 327 State 17. Chaffln 266 State V. Charles 688 Statei7. Cheek 805 State i;. Cooper 259, 317 State V. Cotton 277 State 17. Coulter 308, 310, 311 State V. Cross 243 State 17. Cunningham 593 State 17. Davis 51 State 17. Dayton 250, 252 State 17. Dent 219 State 17. De Witt 267 State V. Dimick 544, 898 State 17. DIngee 262 State 17. Doxtater 874 State 17. Drake 328 State 17. Dupont 593, 594, 647 1068 CASES AND TRIALS CITED. Page. State w.Elden 259, 261, 263 State V. EUiott 675 State V. Fairfield Com. Pleas 801 State V. Foster 141 State V. Fox 217, 226 State V. Fuller 208 States. Garland 304, 308, 310, 312 State V. Gibbons 141, 593, 594, 598 State V. GlUick 218 State V. Ginns 685 State w.Goff 301, 308, 310 State V. Graham .__ 661 State V. Gnlld 328 State V. Gurney 268 State V. Gut 672, 779 State V. Hageman J„ 251 State V.Hall 800, 802, 803 State V. Handy 677 State V. Haney . 144 State V. Hastings 372 State V. Hattabough 264 State V. Heath 851 State v.Heflin 588 State V. Hill - 296, 571 State v.Hodgkins 26a State V. HoweU . 290 State V. Huxford .- 339 State V. Irwin 138 Statev. Johnson (40&41 Conn.) 293 State*. Johnson (Walk.) . 221 State V. Keene 325 State V. Kelly 672, 879, 898 Stater. Kent 860 State V. Klinger 294 State V. Leabo 229 State V. Le Blanc ^ 677 State 17. Lewis (IBay.) 245 State 17. Lewis (2 Hawks.) 266 State V. Littlefleld 264 State V. Long 330 State V. Manning 137 State V. Martin 137 State V. Mathers 335 State V. Matthews 311 State V. Manrier 250 State V. McCants 293 State V. McGowan 682 State 17. McLane 852 State 17. Mead 262 State 17. Medlicott 218 State 17. Miller 357 State 17. Morea 221 State 17. Morton 142,144 State 17. Neal 688 State 17. Newby 661 State 17. Norvell 266 State 17. Nunnelly 265 State 17. Palmer 144 State 17. Perry 225 State 17. Pollock 695 State 17; Potter 219, 221 State 17. Price 142 State 17. Pritchard 229 State 17. Putnam 252 State 17. Quick 326 State 17. Rankin 94, 671, 817 CASES AND TBIAIiS CITED. 1069 Page. State V. Rawls 338 State V. Reed 688 State V. Risher 267 State V. Robinson {3 Dev. & Bat.) 661 State V. Robinson (9 Fost.) 251 State V. Rogers 94 State V. Roundtree 230 State V. Rutlierford 251 State V. Sam 677 State V. Sater 219 State V. Sauvinet 302,312 State V. Schingen . 293 State i;. Sheeley 227 State V. Sheerin 219 State V. Shelledy 219 State V. Small 296, 574 State V. Smith 148 State 17. Sparks 575,576,878,887 State V. Spencer 211,217,295 State V. Spurgin 262 State V. Squaires 215 State V. Standlfer 264 State V. Stevens 51, 54 State i;. StlUman 804,834,841 State V. Stlmson 133,134 State V. Strickland 593 State V. Sutton (4<}ill.) 262 State V. Sutton (10 R. I.) 887 State V. Symonds 647 State V. Tarr 678 State V. Taylor 593, 594 State V. Thompson 219 State V. Tin . 295 State V. Tillery 140 State V. Tisdale 25: State V. Tom 145 State 17. Townsend 259 State 17. Underwood 592 State 17. Valentine 262 State 17. Vari 228 State 17. Wamlre 374, 393 State 17. Ward 372 State 17. Warner 264 State 17. Waterman 290 State 17. Weesel 327, 329 State 17. Williams (3 Fost.) 688 State V. Williams (10 Hump.) 143 State 17. Williams (20 Iowa) 137 State 17. Williamson 219 State V. Wilson 326,682 State 17. Wishon 250 State 17, Woodfln 308, 310 State 17. Woodman 296, 576 State 17. Woodward 253 State 17. Yancey 94 State 17. Zellers 285 State 17. Zimmerman ;;;-r^ %ii St. Clair, Maj. Gen. Arthur— Case of 59,180,385 St. Croix 17. Piatt 308 Steamboat "W. W. Crawford "—Case of 824 Steamer " Ruth "—Case of burning of JSJ-ion loR Steere 17. Field 125,129,130 Stein 17. Bowman 2X^ Steiner, Ast. Surg. J. M.— Case of 93,697 Stelner i7. Ellis ^^ Steinham v. U. S "^"^ 1070 CASES AJSSD TRIALS CITED. Page. Stephen v. State_^ 678 Sternburg v. Callanan 368 Stetson, Maj. Amasa — Case of 409 Stevens In re. See In Be, &c. Stevens v. Fassett 261,262 Stevens v. Griffith 777 Stewart v. Kahn 847 Stewart v. Southard 878 Stewart v. State 212,228 Stiles, Capt. D. F.— Case of 60 Stitt V. Huidekopers 358 St. John V. Benedict 241 St. Johnsbury v. Thompson » 693 Stokes V. Mowatt 360 Stokes 17. U. S 370 Stone, Brig. Gen. C. P. — Case of 119 Stone's Case 309, 630, 633 Stone V. State 661 Stone V. Wetmore 857 Stoughton V. State 134 Strang v. People 678 Stranger v. Searle 369 Street v. V. S 155,363,738,745 Strong, Daniel — Case of 769 Stroud V. Springfield 368 Sturoc's Case 304, 310, 312 Sumby, Surg. S. A.— Case of i 460 Sumner, Col. B. V.— Case of 60, 594 Surman v. Darley 681 Sutherland v. Murray 886 Sutton V. Johnstone 572, 575, 882, 889 Swalm, Brig. Gen. D. G. — Case of 60, 61, 73, 77, 153, 333, 432, 458, 519, 522, 527, 528, 711, 713, 719 Swalm V. V. S 51, 53, 60, 61, 384, 411, 412, 413, 454, 464 Swam V. Com 320 Swan V. State 293 Swenk v. WyckofC 700 Swift, Lieut J. A.— Case of 60 Swinton V. Molloy 883,886 Sydleman v. Beckwith 339 Symonds u. U. S 32,34 Taffe V. State 289 Talbott V. Silver Bow Co 899,900 Talcott, Brig. Gen. Geo.— Case of -_ 60,478 Tarble's Case 539, 551, 691, 890 Tavener's Case 592, 595 Tayloe v. Reading 897 Tayloe v. Riggs 322 Taylor, Daniel— Case of 768, 769 Taylor, MaJ. J. H.— Case of 60 Taylor v. Com 349 Taylor v. Graham 804 Taylor v. Greely 209 Taylor v. Harwood 359 Taylor v. Jenkins 775, 887 Taylor v. R. R. Co 775, 811 Teagarden v. Graham 886 Teese v. Huntingdon 349, 350 Tennessee Militia — Case of mutiny in 579, 581, 584 Tennessee v. Hibdom 671 Terrill v Rankin 575, 774, 775, 889 Territory v. Harper 674 Territory v. Paul 335 Texas v. White 776, 799, 800, 802, 847, 851, 863 The Elvira _ __ 343 CASES AND TRIALS CITED. 1071 Page. The Exchange 82 The Floyd Acceptances 43 The Grapeshot 803, 804 The Kansas Indians 873 The Julia & Cargo 777 The Ouachita Cotton 774, 777, 778 The Prize Cases. See Prize Cases. The Protector 68, 668, 669 The Queen's Case 348 The Rapid 776 The Reform 777 The Rovena 637 The Santlssima Trinidad 358 The Sea Lion 777 The Thomas Gibbons 35,38 The Tracy Peerage 371 The Venice 631, 776, 799, 811 The W. B. Chester's Owners 517 Thomas, John — Case of 101 Thomas v. State- 285 Thomasson v. GUsson . 775, 889 Thomasson v. State 251 Thompson's Case 238 Thompson Ex parte. See Ex Parte, &c. Thompson v. Bowie 320 Thompson v. Rlggs 43 Thompson v. The Stacy Clarke 298, 579, 585, 886 Thorington v. Smith 800 Thornton v. Hook . 344 Throckmorton, Maj. C. B. — Case of 60 Timothy v. Sampson 588 Titford V. Knott 369 Tobler, Pvt. G.— Case of 644 Todsen, Asst. Surg. G. P.— Case of 599 Tolar, W. J., &c.— Case of 854 Tonyn, Oapt. Case of 884 Tone, Theobald Wolf— Case of 629, 836 Torrey v. Morehouse 245 Trammell v. Bassett 571, 573, 887 Trask V. Payne ^\il' ^ Travis v. Brown : <'"*'' '»'"> '*''' Trenor, Capt. B. — Case of 67, 139 Trinity Church v. Hlggins 515 Tucker v. Kellogg 372 Turner's Case ^^^'w Turner v. U. S ^i° Turnlev i; U. S '^ Twiggs, Brig. Gen. D. E.— Case of 60,73,77,223,738 Twitchell v. Com 165 Tyler v. Pomeroy 51, 95, 538, 539, 817, 880, 882, 885, 889 Tyler v. V. S ^ Tyra v. Com ■^'"' Underwood v. Huddlestone iSe'T^o kto United States v. Almeida ^^'^'aln United States v. Anderson W59, 810 United States v. Angell T:;-;^., fS United States v. Armstrong 141, 14A 144 United States v. A Tract of Land w8 uS States i;' Babcock (3 Dillon) 316,317,350,357,360 United States V. Babcock (4 McL.) :,i2'^A1 ^1? United States v. Bachelder Idb,l4i,i44 United States v. Bailey-- eIo'kaq k^I United States v. Balnbrldge 542, 543, 544 1072 CASES AND TSIALS CITED. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States u United States v. Ufnited States v. United States v. United States v. United States v. Nnited States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. Page. Baldridg 315 Barker 580 Barnhart 94 Bateman 898 Bayard 879 Blaljeney 88, 538, 542, 544 101 581 683 874 561 Bogart- Borden Bowen Bridleman- Brown Buchanan (Orabbe) 43 Buchanan (8 How.) 42,43,887 Burch 138 Burchard Burdicli ■ Burns- ^ 875 . 32 Caldwalader .- 35 Carr ■ 94, 298, 316, 446, 575, 675, 879, 887 Carter 310 Cashiel . 94, 878 Chamberlain 370, 372 Chandler 879 Charles 328 Clark 94, 103, 131, 296, 298, 879, 898 Clarke (3 Fed.) _ 517,571 Clarke (96 U. S. ) 55 Claypool .— Cole ColUer CoUlns Coolldge Cornell Corrle Corson Cottingham. Craig- Crittenden Crook Cruikshank- Darnaud Davis Delesplne Deming- De Vaughan_ Dickinson Dieke]man__. Douglas Drew Duane Dunn Duval Earl__ Baton. 292 145, 285, 360 43 419 230, 292, 298, 676, 879, 898 247, 287 745, 747, 750, 753 26, 538, 540, 544, 545 372 138, 252 870, 871 133 371 367 141 217 348,34fl 799,820,889 316 292 243 7a 42 873 32,34 Bliason 27, 30, 39 Emerson 308, 310 Farnng 247 Fero 134 S°^7 837 Fletcher. 53 Flowery , III:::::::::: 320 Forbes g™ Forty^three Gals, of Whiskey 869 Freeman (3 How.) 32 43 Freeman (4 Mason) """_ ~ 445 g^g CASES AND TRIALS CITED. 1073 Page. United States v. Freeman (1 W. & M.) 27, 38, 39, 880 United States v. PuUhart 298 United States v. Germaine 71 United States v. Gibbon 551 United States v. Gibert 259 United States v. Gilmore 43 United States V. Gleason (37 Fed.) 369 United States v. Gleason (Woolw.) 316 United States v. Greiner 297, 635, 887 United States v. Grossmayer 777 United States v. Guiteau 294, 672 .United States v. Gunther 677 United States v. Guthries 741, 744, 879 United States v. Haines 579, 580, 581 United States v. Hand 687 United States v. Harding 268 United States v. Hare 237 United States v. Harries 357 United States v. Harrill 364 United States v. Haskell 259, 263 United States v. Hayward 800 United States i;. Hemmer 579, 581 United States V. Hill 106 United States v. Hodges 297, 635 United States v. Hoffman 51 United States v. HolUday 875 United States v. Holmes 162 United States v. Huckabee 809 United States v. Hudson 301 United States v. Hughes 316, 358 United States v. Hull 144, 699, 700 United States v. Hunter 328 United States v. Hurshman 873, 875 United States v. Ingraham 701 United States v. Irwin 776 United States v. Ismenard 404 United States v. Jackson 351 United States v. Jacobi — 303, 312 United States v. Jones (10 Fed.) 372 United States v. Jones (31 Fed.) 351 United States v. Jones (32 Fed.) 321, 335, 701 United States v. Jones (18 How.) 544 United States v. Jones (8 Peters.) 367 United States IJ. Jones (3 Wash.) 679 United States v. Kazlnski 145 United States v. Keen 141 United States v. Kegama 874 United States u. Kelly (15 Wall.) 550 United States i;. Kelly (4 Wash., 11 Wheat.) 579, 580, 581; 582 United States v. Kessler 357 United States v. King 293, 298, 316, 671, 673, 879, 898 United States v. Klngsley 646 United States v. Klrby 878 United States v. Klrkpatrlck 257 United States v. Klein 270, 467, 557, 780, 781, 810 United States v. Lancaster (44 Fed. ) 357 United States v. Lancaster (2 McL.) 357 United States v. Landers : 405, 428, 645 United States v. Lane ~ 777 United States v. Larned 369 United States v. Laub 323 United States v. Lawrence 579 United States v. Leathers 869 United States v. Lee 877, 885 United States v. Llnzee 298 440S93 O - 42 - 68 1074 CASES AND TRIALS CITED. Page. United States v. Lipscomb 542 United States v. Long 328 United States v. Lyon 323 United States v. Lytle 43 United States i;. Macdaniel 27,41 United States v. Magill 671 United States v. Maney 51 United States v. Mann 35 United States v. Martin 869 United States v. Masters 347 United States v. Maurice 29, 43 United States i;. Maxwell Land Grant Co 885,890 United States v. McCormlck 141 United States v. McGlue 316, 340, 673 United States v. McHenry 218 United States v. Meagher 293, 316, 673, 675 United States v. Means 316, 350 United States v. Mills 133, 134, 141, 144 United States v. Mingo , 284 United States V. Molloy 371, 515 United States v. Morris 208, 229 United States v. Morrison (1 Sum.) 579, 580, 582, 583 United States v. Morrison (96 U. S.) 32 United States v. Moses 331 United States v. Mouatt 71 United States v. Murphy 93, 708 United States V. Murray 540 United States v. Neverson 348 United States v. Newton 315, 316 United States v. NlcoU 709 United States v. Noelke 220, 368 United States v. Nott 328, 330 United States v. Nye 581 United States v. Outerbridge 672, 673 United States v. Pacific R. R. Co 774, 777 United States v. Padelford 810 United States v. Page 39 United States v. Patterson 357 Untied States v. Pendergast 336, 371 United States v. Penn 899 United States v. Percheman 364 United States v. Perez . 259, 263 United States v. Peterson 581 United States v. Pockllngton 328 United States v. Pond . 142, 252 United States v. Pryor 630 United States v. Pumphreys 328 United States v. Reeves 357 United States v. Reiter & Louis . 803 United States v. Reyburn 322, 323 United States v. Rice 800 United States v. Richard 328 United States v. Riley 259 United States v. Ripley 35 United States v. Rogers 874 United States v. Roudenbush 292, 325 United States v. Route 701 United States V. Russell (19 Fed.) 701 United States v. Russell (13 Wal.) 774 United States v. Sa-coo-da-cot 874 United States v. Sander 144 United States v. Scott 540 United States v. Scrogglns 676 United States u Seaman 879 United States v. Searcy -314, 316, 318 United States v. Seveloff 869 CASES AND TRIALS CITED. 1075 Pftge. United States v. Shackelford . 59T United States v. Shanks 874 United States v. Shapleigh 701 United States ■«. Sharp , 581, 583 United States v: Shawmux 875 United States 1?. Shoemaker 247, 259, 261, 263 United States iJ. Shrewsbury 500 United States v. Slnnot 873 United States t;. Smith (4 Day.) 346 United States v. Smith (1 Mason) , 581 United States V. Smith (3 Wash.) 579, 580, 581 United States v. Stahl = 809 134 542, 543 701 869, 870 33 315 579, 580 United States v. Stevens United States v. Stewart United States v. Strobach United States v. Sturgeon United States v. Symonds United States i;. Thompson (8 Saw.) - United States ■;;. Thompson ( 1 Sum. ) . United States v. Tlerney United States v. Travers United States v. Troax United States v. Tynen United States v. Vanslckle- 90, 91, 298, 549, 673, 879, 898 357 837 347, 349 United States v. Veltch 326 United States v. Vlgol 297, 635, 637 United States v. Wallace 701 United States v. Ware 230 United States v. Watkins 212, 213, 227, 259, 262, 340 United States u Webster 25, 27, 32, 33, 35, 41 United States u Whlte__- 329, 347 United States v. Whitney 879 United States v. Wiggins 367 United States v. Williamson , 67 United States i;. Wilson (Bald.) 227, 230, 327 United States v. Wilson (7 Peters) 271, 273, 469, 470, 471 United States v. WUtberger 674 United States v. Winchester 313, 324 United States v. Wood 338 United States i;. Wright (16 Fed.) 316 United States v. Wright (5 Phllad.) 548, 789, 793, 795 United States v. Wyngall 540, 545 Untied States v. Ybanez 357 United States v. Yellow Sun 874 United States u. Young (25 Fed.) 294 United States V. Young (44 Fed.) 873 Vaiden v. Abney 234 Vallandlgham, C. L.— Case of 238,421,836,840,846 Vallandigham, Ex parte. See Ex parte, &c. Vance v. State 219 Vanderheyden v. Young 76,476,880 Vanderslice v. U. S 749, 750 Van Vranken Ex parte. See Ex parte, &c. Vanzant v. Waddell 693 Varner v. Arnold 773, 852 Vass' Case 326 Vaughan v. Com 264 Vaux's Case 259, 262 Veatch v. State 268 Vedder v. Wilkins 323 Vernon v. Tucker 3.49 Vigilance Committee — Case of 864 Vinlng, Cadet— Case of 579 Von DIeselskle In re. See In Re, &c. Wade V. Birmingham 241 Wadley v. Davis 42 1076 CASES AND TMALS CITED. (Page. Wales, Med. Dtr. P. S.— Oase-of 378 Wales V. Whitney 51, 53, 113, 114 Walker In re. See In Re, &c. Walker v. Crane 888 Walker v. Sauvinet 165 Wall, Governor Joseph— Case of 439, 490, 884 Wall In re. See In Re, &c. WaU V. Macnamara 888, 889 Wall V. State 687 Waller v. State ' 677 Walter v. People 678 Wantlan v. White 87 Warden v. Bailey 54,55,400,439,880,883,884 Ware v. Ware 348 AVarren Ex parte. See Ex Parte, &c. Warren, Maj. Gen. G. K.— Case of 519, 522, 759 Warrington, Capt W.— Case of 726, 894 Wartman v. Wartman 310 Washburn v. PhlUips 51 Washington — Case of burning of 780 Washington v. Com 219 Waskern v. Diamond 233 Waters v. Campbell 110,870,871,886,888,892 Wathen, Capt— Case of 386 Watkins Ex parte (3 Peters). See Ex Parte, &c. Watkins Ex parte (7 Peters). See Ex Parte, &c. Watkins Pvt. B.— Case of 273 Watkins v. Holman 363 Watson, Capt. S.— Case of 409,410,415 Watson V. Savings Bk 310, 311 Wayman V. Southard 27, 34 Weaver, James — Case of 834, 853, 854 Weaver v. Com 130, 131 Weaver v. Ward 885 Webber v. State 262 Weisner, Capt. — Case of 452 Welborn v. Mayrant . 851, 852 Wellar v. People 193 Wellman v. Wickerman . 775 Wells Ex parte. See Ex Parte, &c. Wetmorev. U. S 364, 365 Whalen v. Sheridan 852 Wham, Maj. J. W.— Case of 411 Wharton, Lt. Col.— Case of 75 Wheelden v. WUson 336 Wheeler v. Smith 355 Whicker v. Roberts 130 White In re. See In Re, &c. White V. Burnley 367, 776 White V. McBride 882 White V. McDonough 550 Whiter. Red Chief 557, 779 Whitehead v. Keyes 130 Whitelocke, Lt. Gen. J. — Case of 162, 166, 285 Whiteside v. State 330 Whitfield V. tr. S 810 Whitner v. Hamlin 227 Whitney, Lt. L. F. — Case of 748 Whittaker, Cadet J. C— Case of 60, 288, 313, 370, 371, 372, 373, 730 Whittaker v. Parker 371 Whittem i;. State 308, 310, 311 Whitten v. State ^ 452 Wick V. Webber . 246 Wike V. Lightner 349 Wilbour V. Grace 549, 643 Wildman Ex parte. See Ex Parte, &c. Wildman, Pvt Ira — Case of 106, 107 CASES AND TRIALS CITED. 1077 Page. Wiley V. State . 328 Wllkerson v. Utah 399 Wilkes, Com. Chas.— Case of 153, 176, 188, 207, 338 Wilkes V. Dlnsman 74, 261, 539, 878, 879, 887 WUkins, Col. — Case of 591 Wlikinson, Maj. Gen. Jas.— Case of— 60, 73, 77, 80, 183, 184, 185, 390, 518, 531, 599 Williams, Col. — Case of 767, 768 Williams, Lt. W. M. — Case of 60 Williams v. BrufEy 789, 800 Williams v. Conger 372 Williams V. Mobile Sav. Bk 777 Williams v. State (74 Ala.) 674 WilUams v. State (3 Kelly) 207 Williams v. U. S. (1 How.) 323 Williamson, Passmore— Case of 303 Williamson, Pvt. Peter — Case of 394 Williamson v. RussgU 775, 889 Willis V. State 220 Wills V. State 326 Wilmer, Bishop — Case of 814 Wilson Ex parte. See Ex Parte, &c. Wilson V. Beauchamp 372 Wilson V. John 50 Wilson V. Mackenzie 878,885 Wilsons. State (24 Conn.) 263,268 Wilson V. State (33 Ga.) 241 Wilson V. State (16 Ind.) 349 Wilsonr. U. S 32,336 Wilson V. Young 349 Winder, Brig. Gen. W. H.— Case of 518, 780 Winters v. U. S 753 Wirz, Capt. Henry— Case of 185, 334, 791, 792, 839 Wise V. Withers 882 Withee v. Eowe 369,370 Wltherspoon v. Farmers' Bk 781 Witherspoon v. Woody 887 Witt V. State 506 Wolton V. Gavin 111, 127 Wood, Lieut. F. — Case of 599 Wood V. Fitzgerald 896 Wood V. V. S. (15 Ct. CI.) 751 Wood V. U. S. (25 Ct. CI.) 880 Woods V. Miller 368 Woods V. Wilder 777 Wool, Brig. Gen. J. E.— Case of 518 WooleyiJ. U. S 72,79,459 WooUey, Lt. Col. A. K.— Case of 50, 52, 60, 439 Woolsey v. State 681 Wormley v. Com 243 Worth, Brig. Gen. W. J.— Case of 519 Worth, F. G.— Case of 769, 786 Worthan v. Com 267 Worthy v. Kinamon 5.^7,774,889 Wright In re. See In Re, &c. Wright 17. State (34 Ga.) 452 Wright V. State (5 Ind.) 262 Wright V. U. S 362 Wrote's Case __ 266 Wyllys, Maj. J. P.— Case of. 526 Yates V. Lansing 304 Yates V. People 304 Yost V. Stout 576,775,889 Young ■». U. S 810 Zedwitz, Col. Baron H. — Case of 59, 180 Zouch, Lt. E. C. N.— Case of 567 INDEX. A. Page. Absence with leave. As affecting authority to order court-martial 67 As affecting authority to take action on proceedings 450 Effect on status of as compared with being on " duty " 91 Effect of status of as to liability to jurisdiction and orders 91, 692 Absence without leave. As distinguished from desertion 637 As a continuing offence 255 Finding of under charge of desertion I IZ 385 Offence of under Art. 32 607 Accomplice. Testimony of 329, 336, 357 ACCUMXTLATION OF CHAEGES 152 Accused. Introduction of before the court . 164 Privilege of counsel of 165 Relation to of judge advocate 196-198 Competency of, as witness 335, 529 Testimony " " " 359 Statement of. See Statement of Accused. "Accusee oe peosecutob." Meaning of term in Art, 72 61-63 As used in Art. 73 69 Application of term to convening of inferior courts 483 Acquittal. Form of , 379 Special action in case of , 479 Acting assistant suegeon. Not eligible to sit on court-martial 71 Action on peoceedings and sentence (Chapter XXI.) 447-479 The law on the subject 447 Approval and disapproval 448, 451 Return of proceedings for correction 454 Action of President as confirming authority 469 Action of Commanding General as confirming authority 463 Execution of sentences , 463 Suspension of execution of sentence 465 Pardon and mitigation of punishment 466 Formulating of action and promulgation 475 Special action in case of acquittal 479 Action on proceedings of inferior courts 488 Action on proceedings of courts of inquiry 531 Adding to the Punishment. Unauthorized and illegal 464 Instance in Ambrister's case 464 Adjournment. As distinguished from continuance 246 Extent of authority to adjourn 246 Adjournment pending the finding , 375 Adjournment pending consideration of sentence 390, 394 Admissions. As evidence 326, note Admonition. As a punishment: 416 Affidavit. Inadmissibility of as evidence 300-301, 353 Apfiemation. As taken in lieu of oath 232, 285, 333 AiD-DE-CAMP. Effect of staff rank of on court-martial 148 Alcatraz Island. Regulations for prison at 37 Prisoners at not triable after discharge 92 Execution of imprisonment at 421, 425, 427 Alien. Enlistment of 540-541 Alibl As a defence 290 Amenability of military to civil suit or prosecution 877 Amnesty. Grant of 270 Apology. As a punishment 416 1079 1080 - INDEX, Page. Appeal. None from military te civil court 50-52, 846 None to Congress 52 To the Judge Advocate General in British law 53 From regimental to general court, under Art. 30 604, 60^ Appointment. As making officer amenable to military jurisdiction 85, 89 Need not be averred in specification.- 137-138, and note proof of not required 317, note; 705 Appbovai. or Peoceedings oe Sentence 448 Conclusiveness of 465 Statement of 475 Armies. Constitutional power of Congress to raise 1, 539 Mode of raising 539 Composition of 540 Aemistice 787 "Aemy." Meaning of in Art. 72 65 Aemy Act, (British) 20-21 Aemy of the United States. Constituents of 86 How subjected to the military jurisdiction 88 Army Regulations, (American) 27 As compared with statutes 25 Source and authority of 27 Legislation in regard to 27 Successive publications of 28 Power to amend 28, 30 Making of now surrendered to President 30 Regulations of 1881 31 Regulations of 1889 31 Regulations of 1895 :_ 31, note ; Appendix, XXVI Legal effect and force of army regulations 31 Principles governing regulations 33 Theymust not contravene existing law 33 They must not legislate 33 They must confine themselves to their subject 34 They must be uniform 35 They should be equitable 35 Objectionable features of army regulations 35 Special sets of regulations 36 The Regulations for the Military Academy 36 The Regulations for the Military Prisons 36 The Regulations for the Soldiers' Home and Volunteer Home 37 Violation of as an offence under Art. 62 32 Aemy Reguations, (British) 20 Aeeaionment. Accused not to be ironed at 236 Treatment of accused at 236 Form of__. 236 Answer to the 236, 249 Standing mute at 237 Aeeest. Of officers 110 Occasion and ground for their arrest 110 Form of the arrest 111 The confinement 111 The taking of the sword 112 Extension and limits of arrest 113 "Close" and "open" arrest 113-114 Analogy of enlargement on bail 114 Deferring of arrest till trial 114 Omission to arrest 114 By whom arrest to be imposed 115 Arrest by others than commander 115 Status of arrest 116 Term and discontinuance of arrest 117 Constructive release from arrest ^ 118 Release from arrest under Arts. 70 and 71 118 Special provision of Art. 71 118 Occasion of its enactment 119, note INDEX. 1081 Abbest — Continued. Page. Breach of arrest 120 Of cadets 123 Of enlisted men 123 Effect of Art. 66 123 By whom the arrest to be made 123 Form of 124 Status of arrest — ^Treatment 124 Term of and release from arrest, under Arts. 66 and 70 125 Unreasonable arrests 126 Provisions of Arts. 67, 68, and 69 126 Commitment under Art. 67 127 Report of arrest, &c., under Art. 68 -- 128 Release from arrest under Art. 69 129 OflEense of suffering escape from arrest 129 Arrest of deserters — reward for . 648-649 Arrest as required by Art. 59 694r-696 Arrest under the laws of war 776 Arrest under laws relating to Indians and Indian country 870 Exemption from arrest on civil process : 878 Civil liability for unauthorized arrestJ 819, 888 In a foreign country 83, note ABSOsr. Defined and described. (Art. 58.) 680-682 Abticles of Wak. What they are 17 Early codes of_ 17-18 British articles — their history 18-20 The first Mutiny Act 19 Army Act and Rules, of 1879-1881 20 American articles — ^their history 21-23 Code of 1775 — 21 Massachusetts articles 22 Code of 1776 22 Amendments of 1786, &c 22 Code of 1806: 23 Code and revision of 1874 23, 48 Other statutes in the nature of articles 24 ; Appendix XIV Articles of War separately considered. (Chapter XXV.) 534 The Introductory Section. (Sec. 1342, R. S.) 534 Amendments of code of 772 The Articles of War of Richard II Appendix, II The Articles of War of Gustavus Adolphus Appendix, III The Articles of War of James II Appendix, V The Articles of War of 1765. ( British. ) Appendix, VII The Articles of War of Colony of Massachusetts Appendix, VIII The Articles of War of 1775 Appendix, IX The Articles of War of 1776 Appendix, X The Articles of War of 1786 Appendix, XI TheArticlesof Warof 1806 Appendix, XII The Articles of War of 1874 Appendix, XIII Assault AND Batteky. Defined and described. (Art. 58.) 687 Asking pardon. As a punishment 417, note ; 568, note Attachment of Witness 200-202 ; Appendix, XXIII Attempt — Finding of 383, 689 As an ofEence under Art. 62 733 B. Baix and chain. As a punishment 436 Baixoon. Observing from not a military offence__ 769, <86 Battery. Defined. (Art. 58.) 687 BiLtETiNG. Unknown in our army 16, note Board op survey. Province and duty of 500 The hearing before »01 Action on proceedings of ol^'Z'^o * Bounty-jumping 645, 653, notes Branding. As a punishment 440 1082 INDEX. Page. Breach of abbest. Under Art. 65 120 Nature of the offence 120-122 Animus of the ofEender 121 Defences to charge of 122 Acts not constituting the offence 122 The setting at liberty 122 Beevet rank. As authorizing convening of court-martial 66, note AS giving right of command under Art. 122 755 Bbigade. Meaning of in Art. 73 68 " Separate," meaning of in Art. 73 68 Bbitish Abmy Act 20 Bules of Procedure 20 Military code 18-21 Courts-martial 46-47 Sovereign — authority of to constitute military courts 57 BuBGLAKT. Defined and described. (Art. 58) 682-685 C. Cadet. Not a commissioned officer 71, 87 Not eligible for detail on court-martial 71 Official status of 71, note Liable to trial by court-martial 87 Arrest of 123, 535 Camp-foixoweb. Liability to trial by court-martial under Art. 63, 98 Form of arrest of 124, note Canteen 564 " Capital." Definition of term in Arts, of War 355, 693, 721 Capitulation 786 Captube. Right of in war 557, 779 Captubed Pbopebtt ,_ 557, 780-781 Cartel. For exchange of prisoners of war 793-794 Cashiebing. As distinguished from dismissal , 405-406 Certiorari. As form of revision of military proceedings 50-51 Application for not granted by British courts ^ 52 Challenge, (Of member of court). The law on the subject 205 Construction of Art. 88 relating to 205-207 Procedure under Article 207-214 Grounds of challenge 214 Opinion formed or expressed 217-222 Personal prejudice and hostility 222 Claim to promotion 224 Advancement in files 225 Relationship 225 Personal relations 225 Having taken part in former trial, &c 226 Being a material witness 228 Miscellaneous grounds 229 Liability to challenge not disqualification 230 Challenge of members of court of inquiry 527 Challenge (to fight a duel). Offence of sending 593-594 Offence of accepting 594 Offence of carrying 596 Character. Testimony as to ^ 3.50 As given with discharge 550 Charges. Nature, form, and requisites of 132 Rules for framing of derived from law of indictments 134 Joint charge 144 Rules of military law in regard to framing of 146 The preferring of 150 Accumulation of 152 The referring of for trial 154 Amendment of after reference for trial 155 Additional charges 156 Form and manner of service of 156 Liability to suit for maliciously preferring 880 Forms of under Articles of war Appendix, XX INDEX. 1083 Page. Chables v. Code of 17 Courts-martial in code of . 46 OtviL ATJTHOBITY. Principle of subordination of military to 691,877-S Duty of military to aid administration of justice by 691-92, 695 Civil coubts. Power to revise military proceedings on certiorari, &c 50-51 Collateral revision by, on habeas corpus, &c 52-53 Jurisdiction of, when concurrent with military 93-95,671 Civil functions and relations of the military. (Part III.) Employment of the military in a civil capacity 863 For protection of State from domestic violente 863-864 For suppression of insurrection, &c 864r-865 As a posse com/itatus 866-869 For execution of laws relating to Indians and Indian country 869-876 For removal of Intruders from military reservations 876 General attitude of miltiary toward civil community 877 Liability of military to civil suit or prosecution 877 General principle of amenability 877 Double amenability, (to civil and military jurisdiction for same act) 878 Liability for official and discretionary acts 878 Amenability to the United States 879-880 Amenability to military persons 880 For acts as members of courts-martial 880 For execution of illegal sentences— 881 For wrongs and injuries in general 882 For causes of action resulting from negligence 885 Amenability to suits by civilians , 885 Liability for abuse or excess of authority 885 Relative amenability of superior and inferior 886 Liability for mode of executing an order 888 Measure of damages 888 Liability for injuries in time of war 889 Liability on public contracts 889 Liability of officer as garnishee 890 Liability under writ of habeas corpus 890 Defence and indemnification by the Government 891 Amenability to criminal prosecution in State court 892 For a killing, &c., in suppressing a. riot 893 Other civil relations of the military 895 Effect of the military status as to Civil rights and liabilities in general 895 Restriction of civil rights by U. S. Statute 895 Restriction of civil rights by State laws 896 Liability to taxation. Exception ai? to pay, arms, c&c 897 Effect of station within exclusive jurisdiction of the U. S— 897-899 Status within a State non-existent in a Territory 899-900 Civilians. Military jurisdiction over, under Art. 63 98 Military jurisdiction over, under Arts. 45 and 46 102 Military jurisdiction over, under Art. 60 104, 105 Military jurisdiction over, under Sec. 1230, R. S 104, 105 Military jurisdiction over, under Sec. 1361, R. S 104, 105, 494 Offences against, under Art. 62 723-725, and notes Military jurisdiction over, under Sees. 4824, 4835 105 Principle of non-amenability of to military jurisdiction 105 Unconstitutionality of statutes making them amenable 105-107 Cleabing the court 288, 289 Clerk. Of a court-martial 168 Of War Dept, not amenable to military jurisdiction 101 Colored tboops. Enlistment of 541-542 Regiments of in army 541-542, and notes Commission — Commissioned officer 70-71 Proof of commission 705 Commutation of punishment. Nature of 471 Composition. Of general courts-martial. (Chap. VII.) 70 Of inferior courts 484 Of courts of inquiry 521 1084 IISTDBX. Page. Conduct to the pbejudice op good osdeb and mitjtabt discipline. (See Art. 62.) 383-385, 720, 723-725 Conduct unbecoming an officer and a oehmtleman. (See Art. 61.) 383, 710 Confession. As evidence 327-330 Confinement. See Arrest. (Chapter IX.) 111,120,123 See Sentence and Punishment. (Chapter XX.) 420-427 CoNscEiPTioN. Of militia by Act of 1862 76, note General, by Act of 1863 87 CoNSPiBACT Evidence of parties to ^ 329 To defraud the United States 701 As triable by military commission 839 Constitution. Of general courts-martial. (Chap. VI.) 57 Of inferior courts 481 Of courts of inquiry 520 Constitution of United States. As source and authority of military law _ 15 Provision of relating to military discipline and war power 16 As authorizing courts-martial 47-48 BfCect of Vth, Amendment of 48 As source of law of war 773-774 When superseded by law of war 773,801 The guarantee clause of Art. IV, sec. 4, as fulfilled by the Kecon- struction Acts 847 The guarantee clause of Art. IV, sec. 4, employment of military under 863-864 Constitutionality of certain statutes 65, 92, 105-107 Provision of 1st Amendment as to religion 655-656, and note Provision of Vlth Amendment as to counsel 165, note Provision of Vlth Amendment as to confronting witnesses 287, note Provision of Vlllth Amendment as to fines and punishments 398 Provision as to disposition of public property 708, and note Ratification of 14th and 15th Amendments required by the Recon- struction Laws 818 Contempt. Authority of court-martial to punish for 301 Construction of Art. 86 in regard to 302-308 Of civilian witness 309 Mode of punishment of 303 Form of procedure under the Article 305, 310 Purging of 311 Not punishable by court of inquiry 529 Before a military commission 841 Continuance. Construction of Art. 93 in regard to 239, 529 When and by whom applied for 239-240 Duration of 240 Grounds for j 241-245 Trial of issue on application for 245 As distinguished from adjournment 245 Contract. Liability of oflicer under public 889 CjONTBACtob. Amenability of to military jurisdiction in late war 98, note ; 106 How far bound by report of board of survey 500, note Contributions. Exaction of in war 806-808 Convening oedee. Effect of in general 158 Particulars of 158-160 Form of for Inferior courts 483 " CoEPS." Meaning of in Art. 81 481 Meaning of " different corps " in Art. 82 482 Meaning of " different corps " in Art. 122 7.55 Cotton. Capture and disposition of in late war 781, 810 Counseu Employment and status of 165,166 Admission of, proper time for 165 Admission of a privilege, not a right 165 Constitutional provision as to 165 Old rule as to oral communication by 166 Present practice as to oral communication by 166 Relation of to accused and court ; 167 For parties other than accused 167, 527 CJountersign 620 INDEX. 1085 Page. Cotjbt-Mabtiai,. Origin and history of 45-48 Its nature as a legal tribunal 48, 313 Not a part of the U. S. Judiciary 48 Not a court of record 49, 502 As subject to revision by civil courts 50-52 Conclusiveness of Its judgments 54 A court of law and justice 54 A court of honor 54 Assimilated to civil judge or jury 54 A criminal court 55 The different kinds of 55 General — Constitution of (Chapter VI.) 57 Composition of (Chapter VII.) 70 Jurisdiction of (Chapter VIII. )__: 81 Procedure of (Chapters IX-XX.) : 110-390 Inferior. (Chapter XXII.) 480 COTTBT OF ChIVAUIT , 46 CouBT OF iNQxnEY. (Chapter XXIV.) 516 The law on the subject .516 Nature of, as distinguished from court-martial 517 Instances of important courts of Inquiry 518-519 Its constitution 520 Its composition 521 Its function 522 Its opinion ., 524 Province and duties of recorder of 525 Procedure of 526-530 Action on proceedings of 531 The proceedings of as evidence under Art. 121 532 Credits, for good conduct in confinement 426 " Cbime " OK " Ckimes." Meaning of In Art. 65 110 Meaning of in Art. 66 123 Meaning of in Art. 62 720, 723 No degrees of In military law 108, 109, 672, 689 dtOSS-BXAMINATlON 342-345 CuMtTLATiVE SENTENCE. Framing of 404 Execution of 427 CirsTOM. What constitutes 42 Of the service 41 Of war 42 As a defence 43, 617 J>. Dbiatk. As a punishment 402, 417 Debt. Non-payment of by officer as a military offence 114-716, and notes Deceased ofticebs' and soldiers' effects. Disposition of 761-764 Defects in peocebdings 507, 508, 514-515 Defence. Cteneral rules as to 289 Specific defences — ^Alibi 290 Ignorance of fact or law 291 Accident 291, note Ignorance of Arts, of war 291 Drunkenness 292 insanity 294 Obedience to orders 296 Compulsion of the enemy 297 Requirements of military discipline , 298 Of officer sued, &c., when assumed by the U. S 891 Under particular Articles— See the separate Arts, in Chapter XXV. " Department." Meaning of In Art. 72 66 Authority of Commander of 61-65, 66-^ Deposition. Duty of judge advocate as to 188-189 Testimony by ^^2 Construction of Art. 91 as to iio2 1086 INDEX. Disposition — Continued. Page. Procedure — Taking by stipulation 355,356 Form of, by stipulation Appendix XXIV Desertion. Application of Art 103 as to cases of 254-255 When limitation begins to run in cases of 255 As a " continuing " offence 255 As made punishable by Art. 47 636, 644 Originally a felony 636 Definition of 255, 637-639 Legal consequences of 645 Forfeiture of pay, &e 645 Loss of civil rights 646 Official ineligibility, &c 647 Reward for arrest of deserters 648 Authority to make arrest of 648-649 Liability to make good time lost by. (See Art. 48.) 649 Form of, as committed by officer on resigning. (See Art. 49.) 651-652 Form of, as committed by soldier on reenlisting. (See Art. 50.)__ 652-653 Offence of advising and persuading. (See Art. 51.) 654r-65.5 Dismissal by dropping for 745 DisAPPEOVAi. Of sentence, &c 451 Nature and effect of 451 Grounds of 452 Form of not affecting sentence 453 Allowance of new trial upon 453 Discharge. General rule as to its terminating amenability to mili- tary jurisdiction 89-90 Exceptions to rule — Under Art. 60 92 Under Sec. 1361, R. S 92 Under Sees. 4824, 4835, R. S 93 Legality of imprisonment (under sentence) after 424 Dishonorable — ^punishment of by sentence 433, 487 > Form of and right to under Art. 4 548, 549 Honorable and dishonorable distinguished 549 By order, under Art. 4 549 Of minors by Secretary of War 540, 550 By the courts on habeas corpus 548, 550-551 Discharge by purchase 551 Discharge " without honor " 550 Disciplinary Punishment 444 Discipline. Requirement of, as a defence 298 Summary In emergency 446, 675, note Summary in case of mutiny 585, 586 Case of lams 446, note Dishonorable discharge. (See Discharge.) 443,487 Dismissal. By sentence— nature of the punishment 405-408 Execution of sentence of 407 Execution with ignominy 407, 628 Action on sentence of 460-462 Cases of Runkle, Page and Fletcher 461-462 Commutation of sentence of 471 By order. History of 99th Article 736 By order. As heretofore resorted to 737 By order. Operation and effect of 739 By order. Prohibition of in time of peace — constitutionality of 740-746 By order. Effect of ruling in Chaplain Blake's case 745 Dismissal by dropping for desertion under Sec. 1229, R. S 745, 754 Dismissal by " wholly retiring " ^ 746 Trial of officers summarily dismissed under Sec. 1230, R. S 747 Restoration of dismissed officers 747-755 Disobedience of orders. Nature of the offence under Art. 21 571-575 Not committed where order Illegal 575-577 Disqualification. As a punishment 408 Execution of punishment of 410 As prescribed In Arts. 5, 6, and 14, 553-555 INDEX 1087 Fags. " Division." Meaning of in Art. 72 66 Meaning of in Art. 73 68 Double amenability — to civil and military jurisdiction for same act — 93, 264, 693, 696, 878 Draft of 1863. Occasion for . 87 Persons included 88 Held constitutional 87-89 Dbafted men. Part of the Army 87 Subject to trial by court-martial 88 Instances of trials of 88, note Dbum-head coukt-maetial 490, note Dbunkenness. Not a defence or excuse for crime 292 Fact of as admissible in evidence 293,338 On duty — offence of under Art. 38 611 As an offence on the part of an officer under Art. 61 717-718 and notes As a disorder under Art. 62 723 Duel. Offence of fighting a duel 591, note ; 727 Instances of duels in the military service 591-592, notes Duplication jOF pat bolls. Offence of 699-700, 714, and note " Duty." Meaning of in Art. 38 613 Dtino dbclabations. As admissible in evidence 326 Eighteenth Article. (Offences relating to sale of provisions.) Its ob- ject and effect 564 Eighth Abticle. (False returns.) Its object 555 The offence made punishable 656 Eightieth Abticle. (The field officer's court.) 490-492 Eighty-eighth Article. (Challenge of members.) Construction of 205-207 Procedure under 207-214 Grounds of challenge under 214-230 Eighty-fifth Article. (Oath of Judge Advocate.) 199 Authority and duty of judge advocate under 199 Disclosure of vote or opinion 199 Divulging of the sentence 200 Eighty-first Abticle. (Regimental courts.) Construction of 480-485 Eighty-foueth Abticle. (Oath of members of court.) Administering of the oath 231-232 Nature of the obligation — Construction of terms of Article 233 The obligation — how discharged 235, 404 Eighty-ninth Article. (Standing mute on arraignment.) Procedure under .- 237 Eighty-second Abticle. (Garrison courts.) Construction of 480-484 Eighty-seventh Abticle. (Behavior of members.) 177 Eighty-sixth Abticle. (Contempts.) General effect of 301 Construction of terms of 302-308 Procedure under 305 EiGHTY-THiBD Abticle. (Powcrs of Inferior Courts.) Construction of term " fine " 486 Limitation as to imposition of fines 486 Limitation as to terms of imprisonment and hard labor 486 Measure of punishment in general 487 As admitting of punishments other than fine and confinement 487 Eleventh Article. (Furloughs.) Its effect 562 Form and operation of furlough 562 Embezzlement. Definition of 704 Proof of under Art. 60 705 Defence to charge of . 706 Special statutory embezzlements — Rules of evidence on proof of— 706-708 Enemy. Definition of 630 Compulsion of as a defence 297 Who are enemies in war 776-777 1088 INDEX. Page. Enustment. In general 538 Nature of the contract 538 Constitutional power of Congress as to 539 Mode of raising armies by 539 Composition of armies so raised 540 As to nationality — enlistment of aliens 540 As to race — enlistment of Indians 540 As to race — enlistment of colored persons 541 As to age — enlistment of minors 542-544 Personal qualifications for enlistment 344 Effect of statutes regulating enlistment 545 Effect of Army regulations regulating enlistment 546 The terms of the contract 546-548 Discharge from enlistment. (See Fourth Article.) 547 Fraudulent. See Fraudulent Enlistment Escape. OfCence of suffering 129 " Voluntary " and " negligent " 129 Principles applicable to 129-131 Of accused — finding and sentence notwithstanding 374, note ; 393 Evidence. Rules of as binding in general on courts-martial 54, 313 Introduction of in connection with plea of guilty ^_ 278 Procedure on trial as to introduction and hearing of 285 Order and sequence of, on trial 286 To be given In open court 287 The completion of not to be interfered with 287 Objections to, how made and considered 288 General subject of. (Chapter XVIII.) 313 Proof in general — What is to be proved 314 How much is to be proved 315 Reasonable doubt 815 What is to be presumed 316 What is to be judicially taken notice of 318 Admissibility of evidence 319 The evidence must be relevant 319 Rule as to burden of proof 321 The best evidence to be produced 321 Exceptions — Paper lost or in adverse possession 322-324 Hearsay, rule excluding 324 Exceptions to rule-^— Res Gestae 325 Dying declaration 325 Confessions 327 Evidence excluded from public policy 330 Professional communications to counsel 331 Oral Testimony 332 The attendance of witnesses 332 The competency of witnesses 332 A rare and doubtful issue 332 Insensibility to obligation of oath 333 Infamy 334 Deficiency of understanding 334 Wives of accused persons 335 Accused persons themselves 335, 359 Co-accused and accomplices : 336 Other persons 336 The examination of witnesses 337 Direct examination^ 337 Memorandum to refresh memory 337 Statement of opinion — Expert testimony 338, 339 Party's own witness not to be impeached 340 Rule as to leading questions 341 Exceptions 341 Discretion of military courts as to permitting 342 Cross-examination — Scope and restrictions 342-344 Reexamination 344 INDEX. 1089 Evidence — Continued. Oral Testimony— Continued. The examination of witnesses — Continued. Fsge, Privilege of vi^itness as to crimi9ating, Ac, questions 345 Impeaching testimony — as to contradictory statements 347 Impeaching testimony — as to general reputation for truth__ 348 Testimony as to good character 350 Testimony by Deposition 352 Credibility and weight of oral testimony 357 Testimony of accomplices 357 Testimony impeaching or affecting credit 357 Affirmative and negative testimony 358 Testimony of the accused 359 Number of witnesses ' 359 Manner of the witness 359 Written Testimony 360 Public Writings — " Judicial records 360 Public documents , 360 Official books and papers 363 General Orders — Military records and papers 365 Legal effect in evidence of private writings 366 Restrictions as to official papers 367 Private writings 367 Proof of genuineness 368 Proof of handwriting 339, 368 Proof by vyitness 369 Proof by comparison 370 Proof of in Whittalier's case 372 Proof of, view of author 372 EJxKCUTED SENTENCE. Goncluslveness of 465 Beyond control of reviewing authority 465 Beyond control of pardoning power 465 Effect of, how removable 465 EJxcLXJSrvE JTJEISDICTION OF U. S. How acquired 897 Effect of being stationed at a place within, on jurisdiction of courts- martial ^ 81, 897 As affecting action of civil authohties under Art. 59 694 Effect of being stationed at a place within, on exercise of civil rights. 897 No such effect where stationed in a Territory 899 BxPEET. Opinion of as witness 339 As to handwriting 370-37] ExTEBRiTOBiAUTT. Principle of as affecting military jurisdiction 82, 662 F. Fai-se MUSTEK. Nature of the offence 552 Felony. Not known as such to military law 108, and note Desertion as a, in British law 636 Field Officeb's Coukt. As a si)ecies of inferior court 55 Its nature in general 490 The law on the subject 490 Constitution of 491 Composition of 491 Jurisdiction of . 491 Power of punishment of 491 Procedure of 492 Form of record of 492 Action on proceedings of 492 Pardon, &c., of punishments of 492 Fifteenth Article. (Care of military stores.) The original provision 558 Construction of terms of 559 Fifth Article. (False muster.) Its effect 553 Substantially embraced in Art. 14 552, 553-554 Fiftieth Abticle. (Reenlisting without discharge, &c.) The subjects of- 652 Nature of offence of soldier under 652 Punishment of soldier under 653 Duty and liability of officer under — _ 653 440593 0-42-69 1090 INDEX. Page. Fifty-eighth ABTICI.E. (Jurisdiction of crimes in war, &c.) 66(5 Origin and object ^ 667 Ttie jurisdiction created — limit of 667 War, rebellion and insurrection distinguished 667 War — when and how commenced 667 War — ^when and how terminated 669 The crimes specified — Murder 672 Manslaughter 674 Mayhem 676 Rape 677 Robbery _— 678 Arson 1 680 Burglary 682 Larceny 685 Assault and Battery 687 Assault and Battery with intent to rape 688 Wounding, &c., with intent to murder 688 Findings under the Article 689 Punishments 689 Fifty-fifth Article. (Trespasses on the march, &C.) Its purpose 660 Construction of terms of 660 Fifty-fiest Article. (Advising and persuading to desert.) Advising to desert 654 Persuading to desert 654 Punishment 655 Fifty-fourth Article. (Indemnification of civilians for injuries by soldiers.) Its object 657 Construction of terms of 658 The G. O. of 1868— Procedure 658 Defects of the Article — Practice 660 Fifty-ninth Article. (Surrender of military offenders to civil authori- ties.) 690 Principle and purpose of 691 Construction of terms of 692 Form of proceeding under 694 Illegality of arrest, &c., without due application 695 Duty and liability of officers under 696 Prior assumption of military jurisdiction as affecting operation of 696 Fifty-second Article. (Attendance at divine worship.) Origin of 655 The recommendation 656 Constitutional provision as to religion 656, and note The penal provision 656 Fifty-seventh Abticle. (Forcing a safeguard.) Its scope 663 Safeguard — Form and effect of : 663 By whom to be granted ; 665 Revocation of : 666 Forcing of 666 Fifty-sixth Article. (Violence to purveyors, &c.) The original form— 662 Principle of the provision — Its object 662-663 The "violence" contemplated 663 Fifty-third Aeticle. (Profanity.) Its former significance 656 Present unimportance 657 Finding. Form of as governed by usage 41 Generally. (Chapter XIX.) 374 Mode and rules of procedure upon 374 Clearing — Deliberation 374 Recalling witnesses 37,5 The voting — Provision of Art. 95 375,376 Must be according to the evidence 376 Chance or compromise verdict 377 Majority rule — No exception in capital cases 377 Modification of finding 377 The finding an act of the court — Protest 377 INDEX. 1091 Finding — Continued. Page. Preserving tiie votes 378 Finding must be certain and consistent 378 Forms of findings — Guilty or not guilty 378 Guilty without criminality 379 Not proven 380 Partial finding — Exceptions and substitutions 380-382 Conviction of a lesser ofEence 382 Conviction under one Art. of a violation of another 383 Conviction of a lesser grade of a crime 385, 689 Additions to the finding — " Honorable," &c., acquittal 385 Reflections on persons, discipline, &c 385-386 Fine. " Excessive," what 398 As a punishment ^ 419, 427 In connection with imprisonment 419 As imposable by inferior courts under Art. 83 486 First Abticee. (Subscribing of Articles.) An obsolete provision 535 Flag of truce. Use and abuse of 768, 787 Flogging. As a punishment 438 FoBFEiTUEE OT PAY. As a punishment 427, 486 Different forms of . 427 Forfeiture of allowances 428 Forfeiture accrues to U. S. only 428 Execution of sentence of 429 Official noting of 430 EfEect of remission of 430 FoKGEET and countebfeiting 702 FoRMEB Trial. See Plea of Former Trial 259 Fortieth Article. (Quitting guard, &c.) EfEect and construction 611 FoBTT-EiGHTH ARTICLE. ( Consequeuccs of desertion.) Subject to re- striction of Art. 103 258, 651 Previous legislation 649 Obligation of deserter to complete contract 649 Period to be made good 650 Amenability to trial after term 89, 651 Forty-fifth Article. (Relieving the enemy.) Jurisdiction of civilians under 102-104 Oflfence of relieving — Construction 630 OfEence of harboring, &c 632 Defence under 632 Punishment 632 Fortt-fibst Article. (False alarms.) Object of — Nature of ofEence__ 618-619 FoRTY-FOTJRTH ARTICLE. (Discloslng watchword, &c.) : 619 Watchword and parole distinguished 620 Offence of making knovra the watchword 620 Offence of giving wrong watchword 621 Forty-ninth Article. (Effect of resignation.) Origin and declaratory nature of the provision 651 Forty-second Article. (Misbehavior before the enemy, &c.) 621 Origin and early provisions 622 Offence of misbehavior before enemy 622 Defence to charge of 624 Offence of — " Running away " ... 624 Abandoning post, &c 624 Casting away arms, &c 626 Quitting colors, &c., to pillage 626 Punishment ._ 627 Forty-seventh Article. (Desertion.) 636 Desertion defined and described 637 Construction of the article 639 Form of charge under the article 639 1092 INDEX. FoBTT-sEVENTH ABTictE — Continued. Fage. Pleas to the charge 639 Proof of the offence 639 Defence 642 Extenuating circumstances 643 Finding 644 Punishment 644 Legal consequences of desertion 645 Arrest of deserters, and reward 648 FoBTT-sixTH Akticle. (Communicating with enemy.) Jurisdiction of civilians under 102-lW Offence of corresponding with enemy 633 Offence of giving intelligence to enemy 634 Defence and Punishment 635 Forty-third Aeticle. (Compelling surrender of post, &c.) Nature of the offence 628 Fourteenth Article. (False muster.) Construction of 552. Fourth Article. (Discharge of soldiers.) Effect and application of 548 Form of the discharge 548 Delivery of the discharge 548 Self-discharge 548 Discharge as a right 549 Discharge before expiration of enlistment 549 Honorable and dishonorable discharge 549 Discharge by order 549 Discharge " without honor " 550 Discharge of minors 550 Discharge by purchase 551 Fraudulent claim. (Art. 60.) 698 FBAUDirLENT ENLISTMENT. Offence of 109,652,733 Fbay. (See Twenty-fourth Article) 587 Furlough. (See Eleventh Article) 562 Jurisdiction over soldier when absent on 91, 563, 692 a. Gambling. As an offence under Art. 62 727, 729, 730 Garnishee, process. Public oflScer not liable to 890 Garrison coubt. See Kegimental and Garrison Court, and Chapter XXII 480 General officers, the of the army distinguished from the " line " 757 General Orders. As part of the written military law 38-40 Germans. Early military law of 18 Early military courts of. Franco-German system 45-46 Guerillas and guerilla warfare 783-784 Gustavus Adolphus. Military code of 19, and Appendix III Habeas Corpus. Collateral revision of military proceedings by writ of 52-53 Discharge of minors by writ of 548, 550-551 Suspension of writ of as form of declaration of martial law 820 Suspension of writ of in connection with exercise of martial law 828-830 Power to suspend the writ 828-829 Return to writ when issued by State court 890 Return to writ when issued by U. S. court 891 Act of Confederate States Congress authorizing suspension of writ of Appendix XIX Forms of returns to writs of Appendix XXV Handwriting. Proof of by witnesses 368-369 Proof of by comparison and standards 370-372 Haed Labor. As a punishment 421, 486 Heaesay. (See Evidence) 324 Hostaoi! 797 Hours of session. (See Ninety-fourth Article) ,„ 281 INDEX. 1093 I. Page. Ignorance of Fact oe Law. As a defence 291 IMPEISONMENT. As a punlshmont 420-427,486 As adjudged with fine 419 At hard labor 421 In a penitentiary 422 Term of in general 423-426 Time credits on 426 Execution of cumulative sentences of 427 Indemnification. For consequences of acts done under martial law 830 By the U. S. of officer sued or prosecuted 891-892 Indian. Competency of as witness 337, note Civil status of 540, note Enlistment of 540^541 Begiments, &c., of, and scouts 540-541, and notes Policy of the Government in regard to . 869 Charge of, when prisoners of war 875 Relations of military toward, when peaceable 876 Employment of in war 540, 784 Execution of laws relating to 869-872 Indian Agent. Relations of the military to 872 MUltary authority of army officer when acting as 872 Indian Countby. What is defined 869-870 Removal of trespassers from 870 Apprehension of persons illegally in 870 Jurisdiction of crimes committed in 663 Introduction of liquor into 874 Indian Wab. Jurisdiction of offences committed in 101, 103, 624, 631 Restricted field of 101, 670 Inception of 670 Application of laws of war to 778. 786 Infamous Gkime. Meaning of term 16, note ; 537 Infamy 108, note ; 334 iNFEBioB CouKTS. (See Chapter XXII.) 55, 480 Insanity. As a defence 294 Expert testimony as to 339-340, and notes Finding in case of Insane accused 379 Sentence in case of insane accused ^ 393 Action on proceedings In such case 454 Insurrection. Defined 667 Interning, by a neutbal 796 INTEBPBETER. Employment and compensation of 167 'Co be obtained for prosecution by judge advocate 168, 190 J. James II. * " English Military Discipline " of 19, and n'ote ; App., IV Articles of war of 19, note ; Appendix, V Jeopardy. In what it consists 259 Judge Advocate. Cannot amend charges virtute officii 156 Detail of in convening order 159 Designation of in subsequent order 159 Early use of the term 179 Existing law relating to 180 Appointment of— law on the subject 180-185 Deputation of under Art. 90 180 Construction of Art. 74 as to appointment of 181-183 To be appointed for regimental and garrison courts as well as general 182, 483 But not for field officers' courts 492 By whom to be appointed 182 Court cannot appoint 182 Eligibility for appointment as 183 A civilian eligible 183 Employment of counsel to assist 184, 185 Personal qualifications for — Fitness 185 Freedom from prejudice 185 1094 INDEX. Jtjdge Advocate — Continued. Page. His authority and duties 186 Prior to meeting of the court — ^As to perfecting, &e., the charges. 186 As to serving charges 188 As to summoning witnesses 188 As to giving certificates of attendance 203 As to preparing case for trial 189 As to other particulars 189 Pending proceedings and trial — Capacity in general 190 As prosecutor 190-192 As a minister of justice 193 As adviser to the court, &c_ 194 As counsel or adviser of accused 196 As recorder 199 Authority and duty under Art. 85 199 Nolle prosequi, authority of as to entry of 192, 247 Withdrawal of when court closed 195 Authority and duty as to issuing process of attachment 200 Authority and duty as to appointment of reporter 202 Duty of after the trial — ^Forwarding of the record 203 Judge Advocate Geneeal. Appeal to in British law 53 Advisory function of in our law 53 Present organization of " department " of 181, note Judgment of cOust-maktiai.. A recommendation only 50,447 Conclusive when approved 54, 464, 749 JUBISDICTION. Of general court-martial. (Chap. VIII.) 81 Place or field of 81 Time within which to be exercised 84 Persons subject to 86 Attaching of 90 Offences which it embraces 107 Of Inferior court _^ 484 Military commission 836 Crimes committed in Indian country 101, 663, note Concurrent under Art. 58 670 Exclusive. (See Exclusive Jurisdiction.) li. " Land itoeces." Term construed 105 Labceny. Defined and described. (Art. 58.) 685-686 As cognizable under Art. 60 704 As cognizable under Art. 62 721, 724-725, notes Law or Wab. As part of the unwritten military law 42 Definition and division of the subject . 773 As affecting rights of our own people , 774 Taking or destruction of private property 662, 774 Arrest and restraint of persons 776 As affecting intercourse between enemies in general 776 Rule of non-intercourse 776 Enforcement and violation of the rule 777 Exceptions to the general rule — ^Licenses to trade 777 As specially applicable to enemies in arms 778 Rights and obligations of warfare in general 778 War proper — Immunity of non-combatants, &c 778 Disposition of property — Public property , 779 Private property 780-782 The forces by which war is to be waged 782 Irregulars — " Guerillas " 783 Weapons and means of warfare 784 Use of poison _^ 735 Other treacherous or insidious means ■. 785 Secretly entering the lines 786 Ruses de Chierre 786 INDEX. 1096 Law op Wab — Continued. As specially applicable to enemies in arms — Continued. ^^s*- Truces and conventions 786 Capitulation — Armistice 786 Flags of truce 787 Prisoners of war — Who entitled to rights of 788,789 Their treatment 789 Their employment 792 Their discipline 792 Their exchange and parole 793 Interning by a neutral 796 Enforcement of laws of war 796 Retaliation 796 Reprisal 798 Military Government. (See this Title.) Martial Law. (See this Title.) " Laws of the land." Meaning of in Art. 59 693 Leading question. (See Evidence.) 341 Lessee included offence. Finding of , 382 Limit ATioKT of pkosecutions. (See Plea of Statute of Limitations.) 2.53 " Line," as distinguished from " stafE " , 755-757 As distinguished from general officers 757 Loss OF KEtATivE BANK OB FILES. As a puulshmeut 414 M. Making good time lost, by deserter, imder Art. 48 649 Maungeeing 73|0 Manslaughter. Defined and described 674-676 Maeines. As associated with regulars on court-martial under Art. 78 74-75 Military jurisdiction over when serving with army 97 Right of command of officers of under Art. 122 758 Masking. As a punishment 440 Maetial Law. As confused with military law 47, 817 Definition of — distinguished from military government 799, 817 Occasion and field of 817 Assimilated to state of siege 818 As exercised under British rule 819 Its formal initiation 819 Its limitations 820 Instances illustrating its operation 821 As declared by Gen. Jackson in New Orleans 821 As declared by Gen, Scott in Mexico 822 As declared by the President and military commanders in the late war 823-827 As connected with suspension of writ of habeas corpus . 828-830 Power to suspend the writ 828-830 Jurisdiction of offences under martial laW 830 Massachusetts Aeticles of wab 22, and Appendix, VIII Maximilian, the " Empeeoe." Composition of court for trial of 73, note Retaliation in case of 798 Maximum Punishments — Code of 395-396 Objections to same 396 Mayhem. Defined and described 676 Membees of Coubt-maettal. Class and rank of 70 What officers eligible as 70 Must have rank 71 May be junior to accused 72 Law as to number of 77 Five make a quorum 77 Addition to court of new members pending trial 78 Discretion of commander as to detailing less than thirteen 78-79 Supernumerary members 79 Detail of members in convening order 159 Assembling and seating of 161 1096 INDEX. Members of Ootjet-Maetiai — Continued. Pag«- Precedence of — ^how settled 162 A majority to govern 172 Voting by 172 To act as a unit 173 Not to assume incompatible functions 173 Absence of member from court 174,506 Return of absent member as afCecting legality of proceedings 175 Introduction of new members pending trial 177 Change of rank or status of member while on the court 177 Behavior of members 177,728 Their course upon the investigation 178 Special obligation of under their oath 178, 233 Personal amenability of to suit, &c 178, 880 Liability of to perform other duty 178 Right of to recommend to clemency 178 Excusable by court only on challenge . 175,214 Duty of on Trial, Finding and Awarding of Sentence. (See Chapters XVII to XX.) Mbrcenaeies. Employment of in war 784 MiLiTAKY Academy. Regulations for 36 Authority of Superintendent of to convene general courts 69 Status of professors of 71,87 Suspension from 414 MiTTABY Boards 497 Military Commission, The. Authority and occasion for 831 Origin and history of 832 Gen. Scott's military commission 832 Gen. Scott's council of war 832 As resorted to in late war 833 Statutory recognition and provision 833 Executive and judicial recognition 834 Constitution of 835 Composition of 83.^ Jurisdiction of 836-841 As to place 836 As to time 837 As to persons 838 As to offences 839 Offences not cognizable 841 Procedure of — General rule 841 The charge 842 The sentence 842-845 Action on proceedings of 846 As employed under the Reconstruction Acts 853-855 Military Government. Definition of. Distinguished from martial law . 798,817 Authority for 799 Its term 801 By whom exercised 801 Magnitude of the power — Its limitation 801 Features of its exercise? — appointment of executive officials 802 Appointment of judges and creation of courts 803 Restrictions upon local courts 805 Requisitions 805 Exaction of contributions 806-808 Seizure and appropriation of property 808-811 Compulsory employment and treatment of inhabitants 811 Police regulations — Regulation of labor 812, 813 Requirements as to oaths of allegiance 813 Regulation of elections 814 Direction of education and religious worship 814 Control of publications 815 Restraint and punishment 816 As illustrated under the Reconstruction Laws 846-862 INDEX. 1097 Page. MiuTABT Law. In what it consists r 15 In the Navy 15, note Source of and authority for in the Constitution ^ 15 Of Greeks and Romans 17-18 Of early Germans 18,45-46 MrtiTART Law Peopeb. Of what it consists 17 As distinguished from martial law 47, 817 MiLITABT PeISON. At Fort Leavenworth. Regulations for ^ 36 Jurisdiction over prisoners under Sec. 1361, R. S 92 Superseded by U. S. Penitentiary 422 Operation of time-credit system at 426 At Alcatraz Island — ^Regulations for 37 Execution of sentences of imprisonment at 431, 425 Operation of time-credit system at ., 426, 427 MrciTAKT Resebvation. Employment of military for removal of tres- passers from 876-877 Jurisdiction over: 694, 898-899 License to occupy land of 877, note Militia. Status of in Dist. of Col 55, note Distinguished from volunteers 73 Eligible for trial of regulars 73 Authority for their government 75 Composition of courts for trial of 76 Appeal from courts of , 51, note An inadequate force for war 88 Occasions of amenability to military jurisdiction 94 For offenses committed in the U. S. service 94 For the act of refusing to comply with call 96 Right of command of officers of under Art 122 758 Inferior relative rank of officers of under Art. 124 760 MiNOE. Enlistment of 542 Discharge of by Secretary of War 549, 550 Discharge of by the courts on habeas corpus 548, 550-551 MisBEHAviOB BEFOBE THE ENEMY. (See Forty-second Article.) 621-624 Mitigation. Under Art. 112 — ^Nature and extent of power of 473 Grounds of in practice 474 Mob. Attitude of military toward a 865, 893 Motion to qtjash oe stbike out. Its nature and scope 250 Form of the « , 250 At what stage to be interposed 251 Occasion and use of , 251 Addressed to discretion of court 251 Granted in general for defect of substance 252 Admission of evidence In support of 252 Proceeding upon the granting of 252 Motion to sevee 253, note MuEDEB. Defined and described 672 Malice aforethought 672 Justifiable and excusable homicide 674 Self-defence 674 In killing in a duel 591-592, and notes Musteb. Definition of 552 " Mtjstee into." Meaning of in Art. 3 537 Mutiny. (See Twenty-second and Twenty-third Articles.) Deflftl- tlon of i— 578 Instances of 580-581, notes Offence of beginning 582 Offence of joining in 583 Suppression of 585 Giving information of 587 Mutiny Act. Occasion, history and effect of 19-20, 47 Superseded by the Army Act 20-21 1098 INDEX. Page. National Home fob Disabled Volunteeb Soldiers, Regulations for 37 Amenability of inmates to military jurisdiction 93, 105 Navy. Distinctive features of code of 15, note Marine corps a part of 74 Preferring of charges by Secretary of 153, note Appointment of judge advocates in 184 Peculiar forms of finding in 378, 379, 380, 381, 383-384, notes Peculiar forms of sentences in 410,411,420,421,422,423,427,430, 431, 433, 434, 436, 440, 441, 444-445, notes Code of British navy as reconstructed 20, note Newspaper. Instances of trials of correspondents by court-martial under Art. 63 99 Instances of expulsion of same from lines of army 99 Suppression of in war '. 815-816 New tbial. Allowance of upon disapproval of sentence 453 Nineteenth Abticle. (Disrespect to President, &e.) Earlier forms of 565 Practice under 565 Nature and proof of the offence 566 Ninetieth Abticle. (Duty of Judge Advocate as prosecutor, &c.) His- tory of ^ 180 An ineffective and in part obsolete provision 181, 197 Amendment of same recommended , 197, 772 Ninety-eighth Aeticij:. (Prohibition of flogging, branding, &c.) 438, 440 Ninety-fifth Abticle. (Order of voting,) Origin, object and effect of 172-173, 376, 390 NiNETY-FiEST Article. (Depositions.) Construction of provisions of — 352-355 Procedure under 355-357 Ninety-foueth Abticle. (Hours of session.) Disregard of, how author- ized 160,281 Purpose and effect of 281-283 An objectional provision 283 Ninety-ninth Article. (Dismissal of officers.) History of 736 The two modes of dismissal distinguished 736 Constitutionality of concluding provision of 740-745 Ninety-second Abticle. (Qualifying of witnesses.) Form of qualifying 285 Privilege of affirming 285, 333 Ninety-seventh Abticle. (Imprisonment in penitentiary.^ 399,422 Ninety-sixth Article. (Vote on death sentence.) 391 Requirement of does not apply to finding 377 Ninety-third Article. (Continuances.) Construction and application of 239, 529 Ninth Article. (Disposition of captured property.) Principle of the provision 557 Construction of 558 Nolle Pbosequi. Authority of Judge Advocate as to entry of 192 Definition of — authority and occasion for , 246-247 Eiffect of — practice in regard to 247-248 Now-Commissioned officer. Not eligible as member of court-martial 70 How confined in arrest 124 Relative measure of punishment for when offending 397 Nxtncupative will 764 O. Oath. Of enlistment 535 Of judge advocate 199 Of member of court 231-236 Of office under Art. I 535 Of witness under Art. 92 285 Of allegiance as required under military government 813 Of allegiance under sentence of military commission 845, 846 Insensibility to obligation of 333 Obedience to obdees. As a defence 296 As a fundamental rule of the military service 571 INDEX. 1099 Page. Objections. Preliminary to trial 249 To evidence , 288 Offences. Division into specific and general lOT Kinds of specific 107 All are criminal and military 107 No common-law grades of 108 No felonies or misdemeanors 108 Accessorial not known to military law 108 No statutory grades or degrees of 108 Minor included offences • 109 Office. Civil — Holding of by army officer 895-896 Officer. Meaning of this word in Articles of War 70,334 Military, as expert witness 339, and note One hundred and eighteenth Aeticle. (Courts of Inquiry.) Duty of recorder 525 Procedure of courts of inquiry under 526, 528, 529 One hundred and eighth Article. (Action of President on sentences respecting general officers.) 462 One hundred and eleventh Articlei- (Suspension of execution of sentences.) 465, 476 One HUNiiEED AND FIFTEENTH ARTICLE. (Oourts of Inquiry.) Authority to institute inquiries 520 Function of court of inquiry under 522, 523 One hundred and fifth Article. (Action on death sentences.) Action of President 459 Action of commanding general under 460, 463 One hundred AND FIRST Article. (Forfeiture of pay with suspension.) 411,412 One hundred and fourteenth Article. (Right of party tried to copy of proceedings.) 365, 367 One hundred and fourth Article. (Approval of sentence.) Signifi- cance of term " approved " 448 Meaning of term "the officer ordering the court" 449 Meaning of term " the officer commanding for the time being " 450 Applies to inferior courts 488 One hundred and nineteenth Article. (Opinion of court of in- quiry.) 521-522,524 One hundred and ninth Aetice. (Execution of sentence.) Effect and construction of 463 Punishments not to be added to in executing — ^Ambrister's case 464 Conclusive effect of executed sentence 465 Applies to inferior courts 488 One hundred and second Artici-e. (Former trial.) Special plea under 259 Meaning of " tried " and " trial " 260 Applies to inferior courts 4S5 One hundred and seventeenth Article. (Oath of members and re- corder of court of inquiry.) 525, 527 One hundred and seventh Article. (Confirmation of sentences of division and brigade courts.)— 463 One hundred and sixteenth Article. (Composition of court of in- quiry. ) 521-522 Duty of recorder under 525 One hundred and sixth Articled (Action of President on sentences of dismissal. ) 460 One hundred and tenth ARTictE, (Approval of sentence of field officers' court. ) '- 491, 492 One hundred and third Artici^. (Limitation of prosecutions.) The existing statute 253 The limitation a defence, not a jurisdictional objection 84-85, 253 View of Att. Gen. Wirt that limitation cannot be waived 85 Rulings of U. S. Courts 85 Scope of the limitation in cases of desertion 254-255 Rulings of courts, &c.. on the subject 254-255 When limitation begins to run in cases of desertion 255 (Construction of proviso of 256 Pleading and procedure In view of 257 1100 INDEX. One HtTNDEED AND THiED ARTICLE — Continued. Page Does not include Inferior courts 485 Does not govern courts of inquiry 523 One hundeed and thibteenth Abticle. (Forwarding of the pro- ceedings. ) 203 One hundeed and twelfth Aetici-e. (Pardon and mi (ligation.) Na- ture of authority conferred 465, 467-472, 488 Pardon and remission - 467-471 Commutation 471,472 Mitigation 473 One hundeed and twentieth Aeticle. (Authentication of proceedings of court of inquiry.) 526,530 One hundeed and twenty-eighth Abticle. (Reading of the Articles of war.) 764 One hundbed and twenty-fifth Abticml (Disposition of deceased offi- cers' effects.) 761-764 One hundeed and twentt-fiest Aeticle. (Proceedings of court of in- quiry as evidence.) 365,367,532 One hundbed and twenty-foueth Article. (Relative rank of militia officers.) Origin and effect of 760 One hundred and twenty-second Aeticle. (Right of command when different corps unite.) Origin and construction of :_ 755-758 One hundred and tm'enty-seventh Aeticle. (Accounting for effects of deceased officers and soldiers.) 761-764 One hundred and twenty-sixth Article. (Disposition of deceased sol- diers' effects. ) 761-764 One hundred and twenty-third Aeticle. (Rights of regular and volun- teer officers assimilated.) Origin, effect and spirit of . 758 A tribute to the Volunteers of the late war 759 One HUNDEEpTH Article. (Publication of sentence.) ^ 407,678,710 Opening argument ob statement 283 Opening of the court 161 Opinion. Of member as ground for challenge ' 217 Statement of as evidence 338 Of court of inquiry 524-525, 530 Orderlies — to attend a court-martial 168, 190 Obdebs. President authorized to issue as Commander-in-chief 26, 27 Military commanders in issuing represent the Commander-in-chief 27, note As part of the written military law 38 Orders of the President 38 Orders of military commanders 39 Convening and supplemental, for court-martial 158, 160 Of commander overruling action on special plea 250, 273, and note Obedience to as a defence 296 Of promulgation 478 Disobedience of 571-577 Proof of in evidence 365 Oboanization of the court 231, 236 P. Pabdon. Plea of 269 Exercise of power of by the President 466 Power of under Art. 112 . 467 Distinguished from remission 467 Attributes of pardoning power ' 468 Conditional pardon — Commutation , 469, 471 Constructive pardon 270, 413, 467 note ; 472 Grounds of pardon or remission, in practice 474 Paeole. As distinguished from watchword 620 Violation of by prisoner of war 794^-795 Paroled prisoner. Amenability to military jurisdiction of 91, note Status of as to performance of military service 794 Offence of violation of parole by ■ 795 Pay (and Allowances). Forfeiture of 400,401,427,428 Penitentiary. Punishment of confinement in 399,422 Of U. S. at Leavenworth, Kansas 422 INDEX. 1101 Page. Pbbjtjey. DeHned 553,702 Plea. To the jurisdiction 249 Special pleas in bar 253 Plea of the statute of limitations 253 Plea of former trial for same offence 259 Plea of pardon 269 Plea of guilty or not guilty 275 Testimony with plea of guilty 278 Action of commander on allowance of special plea 250, 273, and note Inadmissible special pleas 274 Plundeb ._ 557, notes ; 626-627, 662 Posse Comitatus. Employment of the military as 866-868 Practice under Act of 1789 866 Limitation of power to summon 866 Effect of legislation of 1878 867 Cases excepted from such legislation 867 Post exchange 564 Post tkadee. Judisdiction over 99 Now done away with 564 Pbeliminabt business of court. Disposition of 162, 249 Pbesident or the coubt. Form of detailing 150 Always the member senior in rank 170 Functions of — As presiding officer 170 As a member 171 As channel of communication with commander , 171 Case of Lt. Col. Backenstos 170-171, note As a source of command 172 As authenticating officer 172 Pbesident of the United States. Constitutional powers of 16 General authority of to make army regulations 26-27 Authority to make regulations, under existing law 30-32 Authority to amend regulations 29, 30 How far bound by regulations 32 Function as Commander-in-chief to issue orders 27, 38 General and Special Orders of 38 As represented by military commanders in issuance of orders 27, note As represented by the Secretary of War 27,38,427-429,461,467,574 Authority of to convene courts-martial as Commander-in-chief 57 Authority of to convene courts-martial under Art. 72 61 Authority of to convene courts martial under Sec. 1230, R. S 64 Authority and discretion of as to calling out militia 75 Authority of to conscript militia under Act of 1862 76, note As reviewing authority of proceedings of courts martial 447, 459 As confirming authority under Art. 105 459 As confirming authority under Art. 106 460-463 As confirming authority under Art. 108 462 Authentication of his acts by Secretary of War 461-463 Power of over an executed sentence 465 Action of under Art. Ill 465 Action as pardoning power 466 Action of on proceedings of retiring boards 497, 499 Power of to remove from office 740-745 Power of to restore dismissed officers 747-750 Offence of disrespect to 565-566 Power of to initiate warlike measures 667-669 Power of to license intercourse with enemy 777 Power of to exercise military government 801 Power of to proclaim martial law 818, 819 Martial law as proclaimed by in late war 823 Power to suspend writ of habeas corpus 828-830 Fulfilling of guarantee clause of Constitution by 863 Power of as to suppression of insurrection, &c 864 Power of to employ army for civil purposes 864, 867 Pov^er of to order removal of trespassers from military reservation. _ 876 1102 INDEX. Page. Pbesumption. (See Evidence.) 316-318 As to regularity of record 514 From duly mailing letter, &c 594 Pbevious Convictions. Receiving of evidence of 387 Objections to introduction of 389 Statement of in record 512 Pkisoneb of Was. Amenability for ofCences while in bands of enemy 91 Present status of 788 Persons entitled to rights of 789 Their Treatment 789 Their Employment . 792 Their Discipline 792 Their Exchange and Parole 793 Charge of Indians as prisoners of war 875 Pbivilegbd Communications 380-332, 533 Pboceduke. Of general courts-martial. (Chapters IX to XX) 110-389 Of inferior courts 487 Of courts of inquiry 526-531 PlioFESSOB OF MiLiTAEY AcADEM's. Is a Commissioned officer of army 71,87 Not eligible for membership of court-martial 71 Eligible for detail as judge advocate 183, note Prohibition. Writ of in military cases 51 Promotion Of arrested officer, as releasing from arrest 118 As operative as constructive pardon 270, 413 PBOMrLGATioN. Order of 478, 531 Protest. By separate members of court-martial, not permissible 173, 377 Pbovost Courts. Under militfiry government in late war 803-804 Under the Reconstruction Acts 856 Pbovost Marshal. Duty of under Art. 67 .. 126 Duty, when detailed to attend a court-martial 168 Multifarious duties of during late war 169, note Publication of proceedings of court-mabtial 162, and note Punishment. Appropriate for contempt under Art. 86 303-305 By sentence of court-martial. (See Chapter XX.) 390 Prohibited and disused punishments 437 Disciplinary punishments . 444 Authority of inferior court as to 485 Illegal, as ground of suit or prosecution — Gov. Wall's case, &c 884 Q. QuoBUM. Of members of general court-martial—, 77, 78 B,. Rank. As an element of eligibility for membership of court-martial 71 Of members of court in view of Art. 79 71 Of members as determining seats on courtl 159, 160 Relative rank on court, settlement of questions of 162 Relative ranlt as giving right of command under Art. 122 755 Of volunteer and regular officers as assimilated by Art. 123 758-760 Relative rank of militia olficers under Art. 124 760 Relative rank, questions of under Arts. 122-124 760 Rape. Definition of 677-678 Reasonable doubt. (See Evidence.) 315 Rebellion. Defined 667 Recommendation to clemency 178, 443 Record of 513 Reconstbuction Acts. Military authority and jurisdiction under 846-862 The legal situation in 1867 847 The legislation resorted to 848-851 The Acts as passed upon by the courts 851-852 Term of the authority conferred 852 Military commissions, as wnployed under 853-855 Other tribunals, as employed under 855 Exercise of civil authority under 856 INDEX. 1103 Beconstruction Acts — Continued. ^ase. Removal and appointment of civil officers 857 Exercise of police power , 857 Provision for the poor and the colored people 858 Imposition of taxes, &c 859 Control over judicial and legal proceedings 859 Exercise of legislative power 859 Appropriation of public money 861 Quarantine and sanitary regulations 861 Miscellaneous matters 861 Duties as to elections, registration, &c 861 Conclusion . 862 Kebobd. Disposition of 479, 489 Of court-martial — law relating to 502 General duty of court as to 502 Fundamental rules for making up of 503 Must set forth all proceedings 503 Of each case must be an entirety 503 Must be legibly written 504, and note Details of, how to be stated 504-513 Authentication of 512 Statement of action of reviewing authority 475-476, 513 Endorsement of 514 Loss or destruction of 514 Presumption as to regularity of 514 Defects in statements of 514-515 Of civil court — how proved In evidence 360 Of military court — ^how proved in evidence 365 Duty of Judge Advocate as to preparing - 203-204 The forwarding of . 203 Form of a record of a general court-martial Appendix XXI Recokueb of court of inquiry. Province and duties of 525-526 Reduction to banks. As a punishment 431 May be adjudged by inferior courts 487 Re-enlistment. (Art. 50.) 652 Regimental and Gabbison Coltbt. The law relating to 480 Constitution of 481 Composition of 484 Jurisdiction of 484 Power of punishment of 486 Procedure of 487 Action on proceedings of 488 Supervision of action of by higher commander 489 Disposition of records of 489 Regular Armt. As distinguished from volunteers and militia 73, 87 Officers of not eligible for trial of volunteers or militia 73 Constituents of 86 Line and staff of distinguished 756-758 Relative rank and right of command of under Arts. 122-124 755-760 Regulations. Classification of, in general 25 Nature of as compared with statutes 25 Express and implied authority for 25-26 As an instrumentality in administration 25-26 As interpreting statutes 26, note Regulations of the Revenue Cutter service 26, note Regulations for the Military Academy 36 Regulations for the Military Prisons 36 Regulations for the Army. (See Army Regulations) 27 Remarks — Accompanying the Finding 385 Accompanying the Sentence 442, 453 Accompanying the Action of revlevring authority 476 Remission. Of pending forfeiture — effect of 430 Distinguished from full pardon 467 Extent of power of 468 Grounds for exercise of 474 1104 INDEX. Page. Repoeteb. Of court-martial — appointment of un(}er Sec. 1203, R. S 168, 190 Status and compensation of 168, note Repeimand. As a punishment 414 Kbpbisai. 798 Resebvation. Indian — ^Execution of laws in regard to Indians on 869 Arrest and removal of intruders on 870 Military — ^authority for removal of trespassers therefrom 876 Res Gbst.^;. (See Evidence.) 325 Residence. As gained by military persons in States 896 As affecting right of suffrage ■. 896 ■As affecting liability to taxation 897 Resignation. Effect of acceptance of 652, 754 Restoration of officers 747-754 By the President 747-750 By illegal order 750 By legislation 751 "Retainers to the camp." Meaning of in Art. 63 98 Military jurisdiction over 98-99 Form of arrest of 124, note Retaliation. Right of in \?ar , 796 Retired Officer. Military jurisdiction over as part of regular army 87, 88 Not eligible to act as member of court-martial 70, 177 Civil rights and liabilities of 693 Dismissal by " wholly " retiring 746, 753 Retiring Boards. The law on the subject 497 Composition of — swearing of members 498 Powers and duties of — the hearing 498-^99 Finding — ^Action on proceedings 499 Reviewing authority. Who he is 447 The law relating to his powers, &c 447 Approval of proceedings by 448 Disapproval by 451 Return of proceedings for correction by 454 Action of President as, on sentences of death 460 Action of President as, on sentences of dismissal 460 Action of President as, on sentences respecting general officers 462 Action of commanding general as confirming officer 463 Execution of sentences by 463 Suspension of execution of sentences by President as 465 Power of to pardon or mitigate under Art. 112 466 Formulating of action and promulgation by 475 Disposition of records by 479 Action of on proceedings of inferior courts 488, 489 Action of oh proceedings of courts of inquiry 531 Revised Statutes, The. Of what they consist 362 Admissibility of in evidence 362 Revision. By the court, of proceedings returned for correction 454 Nature of the authority , 454 Occasions and grounds for 455 Errors which cannot be corrected on , 455 Correction by new testimony not permissible 456 Course of proceeding upon 456 Form of recording the proceedings 458, 513 Must be the act of the court 459 In cases before Inferior courts 488 Of proceedings of courts of inquiry 531 Reward for arrest of deserter 648-649 Riot. Suppression of by military 893 Robbery. Defined and described '. 678-680 Rules of procedure. (British.) 20-21 Ruses de Guerre 786 S. Safe-conduct 663, and notes; 666, notes Safeguard 663-666 Seating of the court, &c — ,, — , , ^,, — ,,_, , 161 vsnxEX. 1105 Fage. Sbcond Abticle. (Enlistment.) Effect of 585 Th« oath of enlistment ^ 585-536 Reading of articles of war 536 Secbetasy of War. As r^resenting the President in the making of army regulations 27 As representing the Pre«ideiit in tbe issuing of orders and generally- 38, 427,461,476,574 As representing the President In convening courts-martial 61, note As representing the President in authenticating action on sentences of dismissal 460, 461-^62 Sedition. Defined, as made punishable in Art 22 582 Sentence AND Punishment. (Chapter XX.) 390 Voting and deliberation on 300 Majority and two-thirds votes 391 Duty of members who voted to acquit 392 Some sentence necessary on conviction 392 Compromise sentence 393 Adjournment and reconsideration of sentence ^4 Classification of sentences 394 Mandatory ^ntences 395 Discretionary sentences , 395 Principles governing discretionary sentences 396 The sentences to be based on the facts proved and found 396 Discrimination on account of rank of offender 397 Discrimination on account of degree of criminality 397 Discretion as otherwise affected 397 Restrictions upon exercise of discretion 398 By constitutional provision — "Excessive fines" 398 By constitutional provision — " Cruel and unusual punishment " 398 By statute 399 By military usage 399 The sentence must constitute a criminal Judgment 400 The sentence must not trench upon province of reviewing authority 401 The sentence should be consistent with the finding 403 Other rules as to framing of sentence 403-405 The specific punishments — ^Dismissal or Cashiering 405 Disqualification for office 408 Sn^)engion 410 Loss of relative rank or files 414 Reprimand, Admonition and Apology 414 Death 417 Fine — Fine and Imprisonment 419 Imprisonment — Confinement 420-427 Confinement in penlt^itiary 422 Forfeiture of pay, &c 427 Reduction to ranks 431 Dishonorable discharge 433 Solitary confinement 435 Confinement on bread and water 436 Ball and chain , 436 Prohibited and disused punishments 437 Remarks with sentence 442 Recommendation to clemency 443 Disciplinary punishments 444 Action on sentences. (Chapter XXI.) 447 Execution of sentences 463 Principle that sentences not to be added to 464 Conclusive effect of executed sentence 54, 465, 750 Of Military Commission 842-845 Sentinel. Offences of under Art. 39 616 Sepabate Brigade 68 Seventeenth Article. (Responsibility for arms, clothing, &c.) Origin of 560 Construction of terms of 560-561 440593 0-42-70 1106 IKDEZ. Fag«. Seventh Abticlb. (Returns of regiments, &c.) , 555 Seventieth Abticle. (Limit of confinement In arrest.) As limiting arrest of officers ^ llg Construction of in connection with Art. 71 I II us As limiting arrest of soldiers I 126 Seventt-bmhth Aeticu!. (Association of marines and oflScers of the army on courts-martial.) 74-75 Seventy-fifth Aeticu;. (Composition of general courts.) As fixing class' and rank of members , 77 As fixing number of members ^ .^ 77 Construction of term " manifest injury " 78 Seventt-fibst Abticle. (Arrest of oflBcers.) Occasion of — Gen. Stone's ease _ lis, 119, note Effect of in limiting term of arrest 115-119 Provisions of cannot be evaded by a superior , 120 Course of arrested officer to procure release under , 120 Provision of in relation tp that of Art. 103 ^ 256, 258 Seventt-fotjeth ABTicnE. (Appointment of judge advocate.) Effect and operation of ^ 181 Seventt-ninth Abticle. (Trial of officers.) Construction of^ 72 Discretion in commander vested by ,^, 72 Provlslpn of convening order in view of , 160 Sbventt-second Article. (Constitution of general courts.) Effect of as an enabling statute ^ 57 Authority of President to order courts under 61 Provision as to " accuser or prosecutor " — Col. Jones' case 62 Authority of military commanders to order courts under 65 Authority of military commanders as suspended or affected by absence : 67 Seventy-seventh Abticle. (Competency of regular officers to sit on courts-martial.) Construction of 73 Seventy-sixth Abticle. (Place of assembling the court.) 68 Sbvbnty-thibd Abticle. (Ordering of courts by division and brigade commanders.) Effect and opera&on of. j 68 Construction of terms of 68 Sixteenth Abtice. ( Selling or wasting ammunition. ) Construction and effect 559 Sixth Abticle. (Accepting bribe by mustering officer, &c.) Construction and effect , 554 Sixtieth Abticle. (Frauds, embezzlement, &c.) ; 697-710 Form of specification under 144 The original Act of 1863 698 Pars. 1, 2 and 4 — Fraudulent claims 699 Par. 3--Agreement or conspiracy to defraud 701 Par. 5 — False oath 702 Par. 6 — Forgery and counterfeiting 702 Par. 7 — ^Paying less than due 703 Par. 8 — Giving false receipt 704 Par. 9— Stealing 704 Embezzlement 704-708 Misappropriation 708 Misapplication 708 Wrongful sale or disposition 708 Par. 10 — ^Receiving in pledge, &c., public property 709 Punishment , 709 Liability of offenders after discharge, &c 710 Sixty-eighth Abticle. (Report of commitments.) Its purpose 128 Offence of falling to report 128 SlxTY-FDTH Abtice. (Breach of arrest.) Construction of 120-123 The "confinement" intended 120 The " setting at liberty " 123 Meaning of word " crime " in 110 SixTY-FiBST Abticle. (Conduct unbecoming an officer and a gentle- man.) 710-720 The original article — Effect of the present form 710 INDEX. 1107 SixTT-FiBST Abticlb — Continued. Paee- Construction : " Unbecoming " — " Gentleman " 710 The misconduct contemplated — Definition of "conduct unbecom- ing," &c 711-713 Instances of offences charged under the Article 713-718 Scope of as distinguished from Art. 62 719 Procedure — Charge, Finding and Sentence 719-720 SixTT-FotjRTH ARTICLE. (Jurisdiction over Militia, &c.) 95 Jurisdiction under, over offences committed in foreign country 83 SixTT-NiNTH AKTIOI.E. (Release of prisoners — escape.) Effect and con- struction 129 The offences made punishable by 129 Unauthorized release of prisoner duly committed 129 Suffering a prisoner to escape 129 Sixty-second Abticie. (Conduct to the prejudice of good order and mili- tary discipline.) 720-735 General purpose and use 720 Construction 721-726 Crimes " to the prejudice," &c. — What crimes may be so considered-. 723 Ruling of Secretary of War on the question 725, note Illustrations of neglects and disorders charged under this Article 726 In cases of officers 726-729 In cases of soldiers 729 Procedure — Charge, Finding, Punishment 733 SrxTY-sEVENTH ARTICLE, (Commitment and receiving of prisoners.) Duty and right of officers under 126 The " account in writing " required by 128 Penalty for refusing to receive and keep prisoners 128 SixTT-sixTH Article. (Arrest of soldiers.) General effect — meaning of term " crimes." 123 Mode and form of the arrest 123-124 Term of arrest 125 Sixty-thied Article. (Jurisdiction of certain civilians In wax.) 97-102 Construction of terms — " retainers to the camp " 98 Instances of retainers and camp-followers tried under this Article 99 Expulsion of same from camp 99 Construction of " persons serving with the armies In the field." 99 Instances of trials of such persons 99-100 The Art. to be strictly construed - 100 AppUes only to time of war — application in Indian wars 101 Non-application to civil employes in time of peace 101 Cases of Earth— Crafts— John Thomas 101 Soldiers' Home. Regulations for 37 Amenability of inmates to military jurisdiction 93, 105 Forfeitures for benefit of 401, note SoTiTAEY CONFINEMENT. As a punlshmeut 435 Speaf, Court, The. Of the early German law 46 Special Plea. (See Pleas and Motions.) 253 SPECIFICATION. (See Charge.) 132 Exceptions and substitutions in, on the finding 380, 381 Spy. Earlier forms of the statute In regard to 765 Definition of " spy " — nature and proof of offence of 766 Certain offenders who are not spies 768 Jurisdiction of offence of— 769 Special principles governing amenability of 77p Punishment of 770 Staff. Officers of eligible to sit on courts-martial 70 Precedence of fixed by staff rank 162 As distinguished from the " line " of the army 756-758 Standing mute 237 Statement of Accused. Effect of in connection with plea of guilty 277 Of what it consists 299 Its privilege . 299 Procedure as to reading of 300 As evidence 300 1108 INDEX. Page. Statute of Liuitations — Plea of 253 Statutes. In the nature of Articles of War I_III-ZIIII__IIII_II 24 As distinguished from Regulations Z 25 Constitutionality of certain 65, 93, 105 Stipulation. For taking of deposition 355-356 Admission of evidence by 361 Stoppage. As distinguished from forfeiture by sentence : 427 In cases of desertion 645, 649 SuBPCENA. Service of , 189 Form of, and return Appendix XXII SUMMABY Coubt-Mabtial. As a kind of inferior court 55 Separately considered 493-497 Discretion in use of 496 Supebintendent of Miijtabt Academy. Autltority of to convene gen- eral courts-martial ^ 69 Supebintendent OF National Cemeteby. Military jurisdiction over 101 SuPEENUMEEABY Membebs. Old practice as to detailing 79 Suspension. Kinds of the punishment of 410 From rank 411 From command 412 In general — ^nature and consequences of 412 As a punishment' in practice 413 Execution of sentence of 413 Sutleb. Jurisdiction over under Art. 63 99 Now done away with 564 SWEAEING OF COUET-AND JuDGE ADVOCATE 199,231 Statement of in record 508 Effect of defective statement of 515 T. Tax. Liability of military persons to, in general 897 Not liable to for pay, arms, &c 897 Not liable to State tax when under exclusive jurisdiction of the U. S_ 897 Liability of military to in a Territory 900 Tenth Akticlb. (Accountability of company commander.) Construc- tion and effect of '. 558 Teeeitoby. Right of military person to vote in 896 Status and amenability of military persons in 899-900 Testimony. See Evidence. Thibd Abticle. (Enlistment.) Origin of 536 Construction of terms of 537 Thietfenth Abticle. (Signing false certificates.) Effect and construction of : 563 Thietieth Abticle. (Redress Of wrongs of soldiers.) An inadequate provision 601, 606 Construction of terms of . 602-605 Procedure under 605 Thiety-eighth Abticle. (Drunkenness on duty.) Origin — Construction-^ 611 Nature and circumstances of the drunkenness contemplated 612 Meaning of the term " duty." 613-615 Proof of drunkenness 615 Defence to the charge 615 Thiety-fifth Abticle. (Failing to retire at retreat.) Purpose and effect of \ 609 Thibty-fibst Abticle. (Lying out of quarters.) General effect and con- struction 606 Thibty-foubth Abticle. (Being found a mile from camp, &c.) Purpose and effect of 609 Thiety-ninth Abticle. (Offences of sentinels.) Object of 616 Sleeping on post — proof of 616 Leaving post before relieved — proof of 616 Meaning of " regularly relieved " 617 Defence and extenuation 617 XITDEX. 1109 Thirty-second Abticle. (Absence without leave.) rage. Nature of the offence 607 Proof of — defence — ^punishment 607-608 Legal consequences of offence 608 Thirty-seventh Article. (Allowing hiring of duty.) Purpose and ef- fect of - 609 Thirty-sixth ARTictE. (Hiring of another to do duty, &c.) Nature of offences made punishable , 610 Thirty-third Article. (Absence from parade, &c.) BJffect and construc- tion of 608 Treason. As such, not cognizable by court-martial 629 Military offences allied to 629 Trial, The. (See Chapter XVII.) General course of proceeding on 284 Introduction and hearing of testimony on 285 Order and sequence of testimony on 286 Truces and Conventions. Capitulation r. 786, 787 Armistice 787 Flag of truce 787-788 Twelfth Aeticle. (Certificates of absence, &c.) Effect of 563 Twentieth Article. (Disrespect to commander.) Construction of 566 In what the disrespect consists, &c 567-669 Twenty-eighth Article. (Upbraiding refuser of challenge.) Object and effect of 599 Proof of the offence made punishable - 599 Twenty-fifth Article. (Provocation to duel, &c.) Its purpose and effect 417, note ; 590 Twenty-first Article. (Offences against superior officer.) Origin and construction of 569 Makes punishable both battery and assault .569 Proof that officer was a " superior " 570, 577 Proof that officer was " in the execution of his office " 571 Offence of disobedience of orders, in general 571 The kind and form of orders contemplated 573, 784 Signification of term " lawful command " 575 Instances of orders not lawful 575, note Unjust or objectionable commands 576 Twenty-fourth Article. (Suppression of frays and disorders.) Its general effect 115, 587 Common law principle as to quelling affrays 587 Application of the principle to the military service 588 Construction of terms of Article 588 Exercise of power under l_ 117, note ; 588 Measure of punishment of offenders 589 Twenty-ninth Article. (Redress of wrongs of officer.) Construction of 600-601 Procedure under 601 Twenty-second Article. (Mutiny and sedition.) Origin of — Mutiny defined 578 Distinguished from "mutinous conduct," &c 578 The intent of mutiny — ^proof of 580 Instances of mutinies 580-581, notes A violent act not necessary 581 The resistance, &c., must be to lawful authority 581 Combination usual though not essential 582 Sedition defined 582 The specific ofEences made punishable — Beginning a mutiny 582 Joining in a mutiny 583 Procedure — Charge, Finding and Sentence 583-585 Twenty-se^'enth Article. (Seconds, carriers of challenges, &c.) The offence of the second 596 Offence of the carrier 596 Offence of the promoter of a duel . 697 Offence of suffering persons to go forth to duel 598 Duty of arresting such persons 598 1110 rSTDBX.. Page. TwENTT-srxTH Abticle. (Challenge to duel.) Purpose of this class of articles ^ 590 Common law as to duels and. challenges 591 Civil statute law on the subject 592 Offence of sending challenge — what constitutes a challenge 593-595 Offence of accepting a challenge ___... 595 Defence — Punishment 595 TWENTT-THiED Abticlb. (Duty of officer in regard to mutiny, &c.) Sup- pression of mutiny 585 Reform and redress of grievance inducing the mutiny 586 Giving information of intended mutiny 587 U. Unitobm. Members of court to wear full 161 and note Accused to appear in 164 Unwbitten MruTABT Law. (See Chapter IV.) 41 Usage. What constitutes it 42 Usages or the Sbevice. As part of the unwritten law 41 As governing the procedure of courts-martial 41 Vabiance. In sentence 403 and note As ground for revision 455 Violation of the Laws of Was 768, 777, 838, 839 VoLUNTEEB HoME. Regulations for 37 Amenability of inmates to military jurisdiction 93, 105 Volunteers. A part of the army of the U. S 73, 86 As distinguished from regulars 73,87 As distinguished from militia 73, 87 Eligible to sit on courts for trial of regulars 73 Rights of as established by Art. 123 759 This Art. a tribute to their services in late war 759 Precedence of over militia under Art. 124 760 Vote. Rule of majority on military court 172, 377, 391 Tie vote on military court 172, 213 Mode of voting on military court 172, 375, 376, 390 Two-thirds vote on military court 172, 391 Right of military persons to vote in a Territory 896 Right of military persons to vote in a State 896, 897, 898 W. Wab. Defined— Includes hostilities with Indian tribe., 86, 101, 103 Distinguished from insurrection and rebellion 667 Foreign and civil distinguished „ 667-670 How commenced 667-669 How terminated 669-670 Wab Cotjbts. Military commission 831-846 Other courts In late civil war 803-805 Wab Indemnity 807-808 AVatchwoed 620 Weapons and Means of Waefare 784-786 Wife. Incompetency as witness, in general 335 When competent as witness 335 Witness. Status of member as 173 Summoning of 188-189 Fees of 203, 309 Attachment of 200-202, 322 Separation and exclusion of witnesses 284 Qualifying of 285 Examination of by the court 286 " Confronting " of 287, note Contempt by civilian 309-310, and note INDEX. 1111 "WiTNEBs — Continued. Page- Attendance of 332 Competency of 332 Examination of 337 Impeaching credibility of his own by a party 340, 344 Privilege of as to answering criminating questions 345 Impeaching credibility of 347-348 Status of accused as a 335,359 Wbitten MajTABT LAW. 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